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Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 (Link)

Facts:

Case concerning battery in a civil suit that involves sexual assault. S is a bus driver who purportedly had a sexual relationship with plaintiff. Plaintiff says that contact was without her consent.

Issue(s):

Does a plaintiff have to prove consent or lack of consent to the battery that took place?

Ratio:

The plaintiff in a sexual battery case does not have to prove lack of consent; the defence counsel must raise issue of consent and has the burden of proof.

Analysis:

Onus is on the defendant to raise consent as a defence
**Defence must raise it, then must prove it

McLaughlin J.:
**Onus on plaintiff is unreasonable
**Easier to prove a positive rather than a negative


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