COMMON LAW – “JUDGE MADE LAW”

CASE: Jobidon
 Jobidon in bar fight, other person killed
 Charged with manslaughter – unlawful act = assault s.265(1)(a)
 Defence: victim consented to the fight, no assault
 Can someone consent to the infliction of bodily harm? (not said in CC)
 Ont. C.A. overturned own ruling in Dix said Crown does not have to prove absence of consent
– most fights will be unlawful regardless of consent
 Court: cannot consent to bodily harm (consent does apply where no harm caused or
intended)
CASE: Cuerrier
 Cuerrier was HIV positive, did not tell women he slept with
 Charged with aggravated assault s.268 (“endangers the life” by exposure to HIV)
 Defence: victims consented to unprotected intercourse
 Was consent vitiated by fraud (failure to disclose or deliberate deception)?
 Before 1983 fraud was as to “nature and quality of act”, after 1983 just “fraud” – ambiguity
 Court: non-disclosure/deception resulting in actual harm OR risk of harm is fraud, no consent,
guilty of aggravated assault
ROLE OF DEFENCE COUNSEL
CASE: Nix v. Whiteside
 Whiteside charged with murder, convicted
 Wanted to commit perjury, his lawyer said if he did he would have to advise court and would
be able to impeach him, indicated he would withdraw
 Is right of defendant to assistance of counsel violated when attorney refuses to cooperate in
presenting perjured testimony?
 Whiteside argued 6th amendment right violated, must show outcome would have been
different and show:
1. he was prejudiced
2. serious counsel error
 Court: No to 1. and 2., no right to use perjury in defence
 Code of conduct says that lawyers cannot use perjured testimony or assist client in conduct
the lawyer KNOWS to be fraudulent
 CAUTION: difference between being certain and uncertain re: client committing perjury