Date: Thu, 29 Nov 2007 17:46

From: Lewis Klar

Subject: Third party duress and battery

Although the discussion in Scalera ([2000] 1 SCR 551) was in obiter, McLachlin J made it clear, in several parts of the judgment (e.g. see para. 24, or 29) that the "reasonable appearance of consent" is a defence in a sexual battery. Thus, in principle, if the defendant has no reason to know that the consent is forced, this should be a defence.

It might be of course to use other arguments to counter it. For example, in the commercial prostitution case, a power imbalance/exploitation scenario (as in Norberg v Wynrib), or a public policy argument. But this ignores the reality of actual consent and shifts the focus to a different level.

Lewis Klar

I'm thinking mainly in the context of forced prostitution: that a victim could sue in battery despite the arguable apparent consent to provide commercial sex. I'd argue that 1) liability for battery should be strict in any event i.e. reasonable mistake is not a defence (which seems to be the case in England, according to dicta (eg Sedley in Hepburn v Chief Constable of Thames Valley Police and based on the false imprisonment Evans case, but not in Canada: Sansalone); 2) Given the fact that the victim does not really have a way to convey her being under duress without a serious risk to herself (which seems to be the case in your example as well), she should not be estopped.

Of course, the lower social value of purchasing commercial sex in comparison to providing abortion services, might support liability in the commercial sex context, while oppose liability in the abortion example, although such a distinction, I think, is not easy to make on grounds of principle.

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