Hockey game. Player checked another. Hit in neck with stick. Got 5 min penalty in game.
s.267(b) = Assault w/ a weapon causing bodily harm
**AR: cause bodily harm, commit assault (then write down elements of assault which are = application of force, not consent) (then you look up the def’n of bodily harm and include those elements in this too
Can consent be implied?
Consent to an application of force may be actual (expressed) or implied.
Test for Implied Consent – Objective test
**1. Scope of implied consent
***a. Need to look at rules of the game
**2. Evaluate nature of act in relation to scope
***a. Degree of force employed, nature of act - the degree of risk of injury, probabilities of serious harm
State of mind of accused is not relevant when determining consent. Consent is part of actus reus.
When violence arises in circumstances where the play has stopped, a party moves on to the scene from the bench, or strikes with a stick – is beyond area of consent.
**Where the incident has its source in the heat of action – it is generally seen as being consented to
The act was so violent and inherently dangerous as to have been excluded from the implied consent