Binet v. The Queen

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J.:-This is an appeal from a judgment of the Court of Queen's Bench (Appeal Side) pronounced on the 13th of February, 1953, affirming by a majority the conviction of the appellant, before Girouard J. and a jury, on a charge that he, on the night of the 21st to the 22nd of July, 1951, with intent to maim or disable Raoul Fortin or to do some other grievous bodily harm to him, did unlawfully wound and cause grievous bodily harm to the said Raoul Fortin by striking him on the head with a blunt instrument and causing a fracture of his skull.

, would have quashed the conviction and directed a new trial. The appeal is based, pursuant to section 1023(1) of the Criminal Code, on their dissent on the point of law stated in the following words in the formal judgment:- S.C.R.

Two questions arise for our consideration, first whether the verdict can stand, and secondly, if it must be set aside, whether we should order a new trial or direct that a judgment of acquittal be entered.

The learned trial judge warned the jury in terms to which no exception is taken of the danger of convicting on the uncorroborated evidence of an accomplice but he failed to give them any direction in regard to the fact that Giroux had on two previous occasions made statements on oath which were in direct conflict with the evidence which he had given at the trial on a vital point.

I respectfully agree with Barclay and Hyde JJ. that, in the circumstances of this case, the omission to direct the jury in this regard was an error in law so serious as to require that the conviction be quashed. I do not find it necessary to refer to all the authorities which were discussed by counsel. I am in respectful 'agreement with Hyde J. that the applicable rule is correctly stated by Errol McDougall J. who gave the judgment of the majority in Rex v. Stack and Pytell (1) in the following words:- With the greatest respect for the contrary view entertained by the majority in the Court of Queen's Bench I do not think that the circumstance that counsel for the defence stressed the fact of the conflicting statements having been made in any way absolved the learned trial judge from the duty of dealing with them.

It remains to consider whether or not a new trial should be directed. After an anxious perusal of the whole record I had prepared somewhat lengthy reasons dealing with this question, referring to the evidence in considerable detail and reaching the conclusion that we ought to direct an acquittal. However, as the majority of the Court are of opinion that a new trial should be ordered and it is not usual to discuss the details of the evidence when that course is to be followed, I propose simply to state the result at