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R. v. Cey, (1989), 48 C.C.C. (3d) 480, [1989] 5 W.W.R. 169, 75 Sask. R. 53 ( C.A.)

Facts:

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

Issue(s):

Can consent be implied?

Ratio:

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

Analysis:

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

Holding:

The act was so violent and inherently dangerous as to have been excluded from the implied consent


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