Thanks for the replies.  Robert's and Andrew's comments make sense to me, but leave open the following question: in assessing a defence of reasonable but mistaken belief, are we assessing the reasonableness of the defendant's belief or the reasonableness of the plantiff's conduct that created the belief?  (Is this a question of the reasonable defendant or the reasonable plaintiff?)

If we are assessing the plaintiff's actions, that suggests that the plaintiff is "at fault" for creating the impression of consent.  But such impressions can be created innocently.  Consider Robert's example of the kiss.  If the defendant kisses the plaintiff because he mistakes her for someone else, then a battery has occurred.  But if the defendant kisses the plaintiff because she puckers up but it turns out that she is simply preparing to put on lip gloss, then (if you will provide me with some poetic licence for the scenario) she has created the impression of consent and the defendant could rely on his mistaken but reasonable belief.  But the prospect of being kissed had never entered her mind and her actions were otherwise ordinary and unremarkable.

Another example from the Solomon et al torts casebook: Steve joins his friends for a game of football in the park.  But he came a couple of minutes late and missed the group decision that for the first time they would play tackle football instead of touch football the way they normally do.  On the first play, Steve is tackled, breaking his arm.  No battery, because of the defendant's mistaken but reasonable belief in consent.  In this scenario, Steve's actions have helped to create the impression of consent, but he has done nothing wrong except put himself in the wrong place at the wrong time.

Change the facts slightly.  Steve is just walking in the park (not joining the game), and on the first play the football bounces near him and he picks it up to throw back to the players.  One of the players thinks that Steve is playing the game (because it is a large group of people and the first play of the game), and tackles him, breaking his arm.  The defendant's mistaken belief in consent is no more unreasonable than in the first scenario.  But Steve is an entirely innocent victim.  The idea of reasonable but mistaken belief suggests that we are looking to attribute "fault" but often there is no fault involved.  Has Steve foregone his right to recovery in battery because of his innocent role in creating the impression of consent? 

Bruce

At 10:17 AM 14/10/2010, Robert Stevens wrote:

McLachlin J's formulation is wrong.
 
If the defendant is responsible for creating the impression of consent it doesn't matter if they do not actually consent. If I enter into a boxing ring wearing gloves I have created the impression that I consent to be hit, even if I don't subjectively want to be. So, no battery if the other boxer mistakenly but reasonably thinks that there is consent. It is that type of case McLachlin must have in mind in her loose formulation as that is what Scalera is about. (The decision itself is right).
 
However, if I mistakenly think you have consented to kiss me, and you haven't and are not responsible for my mistake, it doesn't matter how reasonable my mistake is. The unconsented to snogging is a tort, in principle at least.
RS

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From: Bruce Pardy [ mailto:pardyb@queensu.ca]
Sent: 14 October 2010 14:20
To: obligations@uwo.ca
Subject: Question about reasonable but mistaken belief in consent

Can anyone clarify a consent issue for me?  In Scalera (SCC), McLachlin says that to establish the defence of consent, the defendant may prove that the plaintiff consented, or that a reasonable person in the position of the defendant would have believed that the plaintiff consented.  In other words, even if the defendant has made a mistake in concluding that the plaintiff consented, that mistake, if reasonable, may allow the defendant to avoid liability for battery.  So for instance if the plaintiff joined a game of hockey believing it to be non-contact and was body-checked by the defendant, the plaintiff did not consent to the body-check, but the defendant reasonably concluded that he did.  So no liability.

On the other hand, as a general rule, mistake is not a valid defence to an intentional tort.  For example, In Turner v Thorne the defendant made a delivery to the wrong address, and liability in trespass followed even though the defendant reasonably thought he was at the right place.  This mistake could be expressed as mistake about consent: the owner of the right address had given consent to the delivery, so if the defendant reasonably thought he was at the right address, his belief in consent must have been reasonable.  But this mistake does not relieve him of liability.

One way to distinguish between the two is to say that in the hockey game, the plaintiff's actions were the source of the defendant's reasonable but mistaken belief in consent, but with respect to the delivery, the plaintiff had no role in producing the defendant's reasonable but mistaken belief.  Another might be to say that in the first situation, the mistake about consent is "direct", whereas in the second, mistake about consent arises because of another mistake about a collateral matter (the address).  Can anyone clarify for me, or identify any other principled difference between these two kinds of scenarios?

Many thanks,
Bruce

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