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1 Alta. L.Q. 38 (1934-1936)
Criminal Law - Assault - Consent as a Defense

handle is hein.journals/alblq1 and id is 60 raw text is: CRIMINAL LAW Assault-Consent as a Defence R. V. Donovan 1934 50 T.L.R. 516 It appeared from the evidence that the defendant, a sexual pervert, in- duced the prosecutrix, a girl of 17, to accompany him to a garage where he beat her with a cane in an indecent manner. He was arraigned on charges of criminal and indecent assault and the defence relied upon was that it lay upon the Crown to negative consent and that, in fact, the girl had consented to all that had been done. At the trial conflicting evidence was adduced in regard to consent. The jury, under the direction that consent was the vital issue, convicted. The conviction was quashed in the Court of Criminal Appeal on the ground that there had been a failure on the part of the trial court to make clear to the jury that the burden of disproving consent rested on the Prosecution. It was strenuously urged by the Crown that the conviction should nevertheless be sustained because the Appellant had intended to do bodily harm and that, therefore, consent was immaterial. This submission the Court refused to accept because the jury had not had the opportunity to decide whether the acts were done with intent to cause bodily harm, and it was not within the province of the Court of Appeal to decide such a question of fact. In their reasons for judgment their Lorships reaffirm the recognized principle that consent cannot make an unlawful act lawful, and that once it had been established that an act is unlawful consent is no longer a factor. It is quite apparent that there was a great reluctance to com- pletely exonerate the Appellant. However, in view of the fact that the English Court of Appeal had no power to order a new trial1 the only course open under the circumstances was to quash the conviction. As a general rule consent negatives an assault2 and is a complete answer to an indecent assault.' Although these two offences are separate and distinct yet actions which would normally constitute a common assault may become an indecent assault if the assailant has improper motives.4 Consent must be consent of the will' and any undue influence, force, or fraud will vitiate consent.' It has even been held that a man infected with venereal I Canadian Courts of Appeal are expressly given this power by section 1024, Criminal Code of Canada. 2R. v. Meredith (1838) 8 C. & P. 589. 3 R. v. Wollaston (1872) 12 Cox C.C. 180. 4 R. v. Louie Chong (1914) 23 Can. Cr. Cas. 250.

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