Canadian Tort Law/Trespass to person

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Some of the main intentional torts against the person are:

  • Assault
  • Battery
  • False imprisonment


Assault[edit]

Assault is intentionally causing the victim to believe that he or she will be imminently, physically contacted against his or her will. No contact actually has to occur; swinging a clenched fist at a victim is assault, even if the fist misses the victim, as long as the victim believed it would make contact. Physical harm need not occur; the harm is in the apprehension.

The apprehended contact can come either from a gesture of the defendant, or by the defendant intentionally causing an object to threaten imminent contact. Pointing a pistol in the direction of a defendant and pulling the trigger is assault, even if it was not loaded.

The belief of imminent contact must be reasonable. If the defendant showed the plaintiff that the gun was not loaded, then the plaintiff cannot sue for assault if the defendant then points the gun at him.

A threat of force, such as "I am going to shoot you", can be an assault, if the threat is imminent. "I am going to shoot you in four years" is not an assault. A conditional threat of force can be an assault, such as an armed mugging ("Give me your wallet or I will shoot you"). On the other hand, a conditional threat of force that makes it clear that force would not actually be used is not assault. For instance, a threat such as "I would punch you, if the police weren't standing right there", is not an assault. Although it seems to be a threat of violence, it is implied that violence would not actually be carried out.

One of the most common defences to assault is consent. The contact must be unwanted. (One might say, then, that lack of consent is an element of assault, rather than consent is a defence.) If someone were to say, "point the gun at me", then one cannot subsequently sue for assault. Consent can be express (specifically written or spoken), or it can be implied (by actions or words that lead to the logical conclusion that contact is wanted). For instance, if one joins a hockey game, one cannot normally sue for assault after receiving a body-check. Implied consent extends only to reasonable apprehensions of contact. Joining in a hockey game does not give all of the other players a license to commit any act of violence that they think of.

Another defence to assault is self-defence. One is allowed to threaten an imminent contact against somebody else to prevent an assault that they reasonably believed was going to happen to them. The force used in self-defence must be proportional to the threat; however, judges often give some leeway to people who use violence in self-defence. The use of force must be the only option; if the defendant could have avoided the threatened assault in another way, such as running away, then the use of force in self-defence is not justified.

Battery[edit]

Battery is an unwanted physical contact. Unlike assault, where an apprehended threat is necessary while actual contact is not, battery requires actual physical contact and does not require imminent threat. For instance, if someone is kicked while asleep, the victim never apprehended the contact before it happened. Therefore, the victim was battered but not assaulted. In practice, of course, assault and battery often happen in the same incident.

Consent is a major defence to battery. When using this defence, the defendant must show that the consent was "informed", i.e., the plaintiff knew of the nature and consequences of consenting. This often arises in medical malpractice cases. If the patient agrees to heart surgery, but the surgeon performs other types of surgery not discussed with the patient while the patient is under anaesthetic, then that is battery.

In medical malpractice cases, the distinction between battery and negligence can get quite blurry. If the surgeon does not tell the patient all of the possible major side-effects of the surgery, then does it constitute battery, as the patient did not give informed consent? Judges have tended to classify most cases of medical malpractice as negligence, reserving battery for the most clear cases of lack of consent.

Consent that is coerced or incorrectly obtained through an unlawful use of power or influence is "vitiated", meaning that it is not really consent. For instance, a doctor using his ability to prescribe drugs to coerce a patient into consenting to battery vitiates the consent. Norberg v. Wynrib, [1992] 2 S.C.R. 226.

False Imprisonment[edit]

False imprisonment is the intentional, unlawful confinement of a person to a space. The person's imprisonment need not last a long time. Nor does the confinement have to be physical; it could be applied by psychological pressure (e.g., "If you leave now, I will tell everyone that you came here to buy drugs...") False imprisonment is, not surprisingly, used mostly against police officers for arresting someone unlawfully. The Criminal Code gives police officers some protection against lawsuits for false imprisonment.


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