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RATIO

Sopinka J. – The extent of the consent given by the victim did not extend to being struck once he had been knocked unconscious and the accused knew this.

Bolduc and Bird v. R. [1967] S.C.R. 677

FACTS

Dr. Bolduc let his friend into an examination room to get off by watching an intimate examination of his female patient.  He introduced the friend as “Dr. Bird” and pretended that Bird was a medical intern.  Under these pretences, the patient agreed to Bird’s presence.  Bird never touched the patient. Both were charged with indecent assault under now s. 244 (a)(2).

ISSUE

Did the men commit indecent assault by fraudulent means?

HELD

No. Appeal allowed; conviction quashed.

RATIO

There was no fraud on the doctor’s part as to what the doctor was supposed to do and in what he actually did.  The patient consented to Bird’s being there.

R. v. Cuerrier [1998] 127 C.C.C. (3d) 1

FACTS

HIV-positive accused rejected a nurse’s advice to wear a condom and inform prospective sexual partners of his HIV status.  He had consensual unprotected sex with two people and was charged with aggravated assault. His partners said they would not have consented had they known the accused was HIV-positive.

ISSUE

Is the accused guilty of aggravated assault?

HELD

No. Appeal dismissed; acquittal upheld.

RATIO

There are common law limitations on fraud for assault.  Fraud as to collateral aspects of a consensual encounter, like the possibility of contracting a serious venereal disease, does not vitiate consent.  Parliament is better suited to change this in order to prevent convictions on assault charges where the fraud consisted of a promise to marry or to buy someone a fur coat.

R. v. Lohnes [1992] 1 S.C.R. 167

FACTS

Lohnes shouted obscenities from his veranda at his neighbour because the latter left lawnmowers and other loud things running for long periods of time.  He was found guilty at trial and appeal division refused to hear the appeal.

ISSUE

Is the accused guilty of causing a disturbance?

HELD

No. Appeal allowed; conviction quashed.

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