Groan,
as two people have now pointed out I meant "plaintiff" not
"defendant".
That'll teach me for criticising the formulations of
others.
R
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
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
________________________
Bruce
Pardy
Professor
Faculty of Law
Queen's University
Kingston,
ON
K7L 3N6
pardyb@queensu.ca
613-533-6000 ext 77570
fax
613-533-6509
Website
http://law.queensu.ca/facultyAndStaff/facultyDirectory/pardy.htmlView
research on my SSRN Author page:
http://ssrn.com/author=81936