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Supreme Court of Canada

Criminal law—Indecent assault—Question of consent—Accused did not testify—Uncontradicted evidence of the complainant—Complainant’s statements at trial inconsistent with statements given previously—None of these statements related to consent—Trial judge pointing to the jury the danger of convicting on the complainant’s evidence alone—Trial judge adequately directing the jury—Criminal Code , s. 149(1) .

Binet v. The Queen, [1954] S.C.R. 52; R. v. Rustad, [1965] 1 C.C.C. 323, referred to.

APPEAL from a judgment of the Court of Appeal for Nova Scotia[1], dismissing an appeal by the appellants from their conviction of indecent assault. Appeal dismissed.

Walter Newton and Steven Enman, for the appellants.

Martin Herschorn and Dana Giovannetti, for the respondent.

The judgment of the Court was delivered orally by

THE CHIEF JUSTICE—We do not need to hear you, Mr. Herschorn and Mr. Giovannetti. The only issue in this case, involving a charge of indecent assault, was consent, and on this issue, there was the uncontradicted evidence of the complainant that there was no consent. In the circumstances, we find no reversible error in the charge of the trial judge who pointed to the danger of convicting on the complainant’s evidence alone, although he did not give the so‑called Binet warning when there were the prior inconsistent sworn and unsworn statements of the complainant. As

[Page 565]

was noted by Davey J.A. in R. v. Rustad[2], the obligation of a trial judge to give the Binet warning depends on the circumstances and on the issues. Those in this case did not require the trial judge to go farther than he did.

The appeal is, accordingly, dismissed.

Judgment accordingly.

Solicitor for the appellants: Walter D. Newton, Kentville, Nova Scotia.

Solicitor for the respondent: The Attorney General for Nova Scotia, Halifax.


[1] (1980), 41 N.S.R. (2d) 104.

[2] [1965] 1 C.C.C. 323.





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