R. v. Gauthier, [1977] 1 SCR 441

Supreme Court of Canada

R. v. Gauthier, [1977] 1 S.C.R. 441

Date: 1975-06-26

Her Majesty The Queen Appellant;

and

Marcel Gauthier Respondent.

1975: March 18; 1975: June 26.

Present: Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law—Trial before judge sitting alone—Testimony of accused on voir dire—Restriction of cross-examination—Evidence on voir dire not part of trial evidence—Criminal Code, s. 502.

Respondent was acquitted on two counts of robbery by a judge sitting without a jury. At the trial the Crown first submitted evidence on a voir dire to have certain statements made by the accused out of court declared admissible. The accused, who was not represented by counsel, then testified that no promises or threats had been made to him, but that he had never made a statement. Having heard this evidence, the judge held that the statements had been obtained freely and voluntarily and were therefore admissible. Subsequently respondent called some witnesses in defence but did not testify himself. At the conclusion of the trial the judge, in view of all the evidence, in particular the accused’s deposition on the voir dire, concluded that he had a reasonable doubt in his mind as to whether the accused participated in the offence, and that he would give him the benefit of the doubt. The Court of Appeal unanimously dismissed the appeals by the Crown. Hence the appeal to this Court.

Held (Laskin C.J. and Spence J. dissenting): The appeal should be allowed and a new trial ordered.

Per Martland, Judson, Pigeon, Dickson, Beetz and de Grandpré JJ.: On the voir dire, the trial judge did not have to decide whether the statement that the prosecution sought to introduce in evidence had actually been made, and whether it was true. In a trial by jury, it is for the jury to answer such questions. Consequently, the judge who hears the evidence on the voir dire gives a ruling only on the admissibility of the statement in question. When there is no jury and the same judge has to rule on both the admissibility of the evidence and its probative value, he must necessarily withhold his conclusion on the second point until the end of the trial, that is, after hearing the whole case.

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Since a voir dire is necessary in a trial without a jury, as in a trial with a jury, it cannot be maintained that the rules are different. Given that the prosecution is restricted in its cross‑examination of the accused who is testifying on a voir dire, to consider this deposition as part of the evidence in a trial without jury would give the accused a singular advantage and the prosecution an extraordinary disadvantage. This would allow the accused to testify on the voir dire on a portion of the case that suited his purposes, while avoiding cross-examination on the rest.

There is nothing in the record at bar to suggest a consent on the part of the prosecution that the evidence introduced on the voir dire be used as evidence at the trial. Without this consent, and in view of the fact that the deposition of the accused on the voir dire was the very basis for the conclusion as to a doubt on which the acquittal was based, there are grounds for granting a new trial.

Per Laskin C.J. and Spence J., dissenting: The voir dire evidence cannot be read into the trial without the concurrence of counsel. In the present appeal it would appear that the trial judge, the accused, who was not represented by counsel, and the Crown were all ready to accept the evidence given on the voir dire as part of the evidence in the trial upon the merits. The trial judge did not err in law in using the evidence given by the accused on the voir dire.

[Re R. v. Shepherd (1951), 100 C.C.C. 95; R. v. Bannerman (1966), 48 C.R. 110, followed; DeClercq v. The Queen, [1968] S.C.R. 902, considered; R. v. Mulligan (1955), 20 C.R. 269; White v. The King, [1947] S.C.R. 268, referred to; R. v. Milner (1969), 11 C.R.N.S. 178, not followed.]

APPEAL from a decision of the Court of Appeal for Quebec, affirming the acquittal of respondent by a judge without a jury. Appeal allowed and a new trial ordered.

G. Girouard, for the appellant.

G. Dansereau, for the respondent.

The judgment of Laskin C.J. and Spence J. was delivered by

SPENCE J. (dissenting)—I have read the reasons for judgment written by Mr. Justice Pigeon and I adopt the statement of facts set out in those reasons except as I shall add to them hereafter.

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I am in agreement with Mr. Justice Pigeon’s opinion that the judge trying a charge without the intervention of a jury and who found it necessary to conduct a voir dire as to the admissibility of a statement by an accused must, when he has ruled that statement admissible in law and proceeded with the main trial, exclude from his mind, in determining the guilt or innocence of the accused, all evidence given in that voir dire and especially the evidence of the accused if he has himself testified upon the voir dire. I am, however, of the view that this is subject to the exception noted by Chief Justice Miller in R. v. Bannerman[1], at pp. 114-115, which Mr. Justice Pigeon has cited, i.e., “unless leave is given, with the concurrence of counsel, to have voir dire evidence read into the trial for the purpose of saving time”.

It must be noted that in the present appeal the accused at trial was not represented by counsel and that the learned trial judge was most meticulous in informing the accused of his rights and particularly of the effect of testifying. As noted by Mr. Justice Dubé in his reasons for the Court of Appeal of Quebec, the respondent was entitled to be under the impression that the evidence which he gave in the course of voir dire was also part of his defence, and it would appear that counsel for the Crown was under a similar impression. The experienced trial court judge quite evidently assumed, in giving reasons, that he was entitled to have regard for the evidence given during the voir dire in determining whether or not he should convict the accused.

Under these circumstances, it would appear that the learned trial judge, the accused and the Crown were all ready to accept the evidence given on the voir dire as part of the evidence in the trial upon the merits.

In view of those circumstances, I am in agreement with the view expressed by judges in the Court of Appeal for Quebec and particularly by Dubé J.A. when he said:

[TRANSLATION] It seems to me clear that the trial judge did not err in law in using the evidence given by the accused on the voir dire when he delivered his final

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judgment, even though this evidence was not repeated in defence; I think that the reverse would be a serious ground of appeal.

For these reasons, I would dismiss the appeal.

The judgment of Martland, Judson, Pigeon, Dickson, Beetz and de Grandpré JJ. was delivered by

PIGEON J.—This appeal is from a judgment of the Quebec Court of Appeal affirming respondent’s acquittal at a trial without a jury. The trial was on three counts of robbery and began with a voir dire on which the accused testified. After an adjournment, the judge ruled as follows:

[TRANSLATION]… at the hearing of May 4 last, the Crown revealed its intention to produce statements made by the accused out of court when he was arrested, and the Crown requested a voir dire, that is, a trial within a trial, to establish that the statements had been obtained freely and voluntarily.

Under the Criminal Code, the Crown must establish beyond any reasonable doubt that the statements were obtained freely and voluntarily, without promises or threats.

For the evidence on the voir dire, the Crown called the following witnesses: Det. Alfred Maccarone, Det. Jacques Grondines, Det. Maurice Fleurent, Det. Yvon Beaulieu, Const. Pierre Tétreault, Const. Wilkofsky, Const. Roger Deschamps, Const. André Yvon and Const. Pierre Morin, and all these persons, who had been in contact with the accused from the time of his arrest until the statements were given to Det. Maccarone and Det. Jacques Grondines, on May 13, 1972, testified that no promises or threats were made in their presence to induce the accused to make any statement whatever.

The accused testified in his own defence and admitted that the officers made no promises or threats: neither the detectives nor the constables who were present when he was arrested and who later kept him in the detention area. The accused said that he made no statement and also that no promises or threats were made to him.

On the voir dire, the fact of whether or not the accused made a statement must not be taken into consideration,

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but is used mainly for, and may affect, the evidence that will be introduced as to whether or not he made a statement; the evidence given on the voir dire, however, must be used only to determine whether the statement was given freely and voluntarily.

Having heard all the evidence, the Court comes to the conclusion that the statements are admissible in evidence, since the Crown proved beyond any reasonable doubt that the statements were obtained freely and voluntarily.

Following this decision, the Crown called Det. Maccarone, who had taken the statements made to him by respondent and had them recorded in writing. The statements were then filed and received in evidence. The accused called some witnesses in defence, but did not testify himself. The trial judge acquitted him in two judgments, the essential of which is as follows:

[TRANSLATION] The extra-judicial statement was not signed by the accused. Can it be used as evidence against the accused despite this fact? On the basis of the decision in R. v. VAUPOTIC, 70 W.W.R. 128, it seems that this question can be answered in the affirmative…

The accused testified on the voir dire and categorically denied making any statement to Dets. MACCARONE and GRONDINES. Does this evidence introduced on the voir dire constitute evidence at the trial? The answer must be in the affirmative if we consider the decision of the British Columbia Court of Appeal in R. v. MILNER, 11 C.R.N.S. 178…

Where an extra-judicial confession is admitted in evidence, it is for the jurors or the judge sitting alone to assess the truth or falsity of the statement. The courts have long recognized that a confession made out of court could be the basis of a conviction. In this regard see a decision of the Court of Appeal of Quebec in FORD v. THE QUEEN, 17 C.R. 26. That case involved an extra-judicial statement signed by the accused, which the latter tried to repudiate at the trial…

In the record at bar, in view of the testimony of Mrs. Marcelle LAVOIE, the fact that the extra-judicial statement was not signed by the accused, and that he denies having made it, the Court has a reasonable doubt in its mind as to whether the accused participated in the robbery committed in the FELIPE cocktail lounge on March twenty-first (21), one thousand nine hundred and seventy-two (1972).

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ACCORDINGLY, the accused must be given the benefit of this doubt, and he must be acquitted of the charge as laid in No. 72-3756.

With respect to record No. 72-3754, namely a robbery perpetrated on the person of Mr. Claude ST-AMOUR on March twenty-first (21), one thousand nine hundred and seventy-two (1972), except for the extra-judicial statement of the accused submitted as Exhibit P-5, the Crown had no direct evidence of the robbery. With regard to the extra‑judicial statement, for the reasons above stated, the Court comes to the same conclusion, namely that there is a reasonable doubt as to whether the accused participated in a robbery committed on the person of Mr. Claude ST-AMOUR on March twenty-first (21), one thousand nine hundred and seventy-two (1972).

ACCORDINGLY, the Court acquits him of the charge as laid.

Appeals by the Crown were unanimously dismissed, the Chief Justice saying inter alia:

[TRANSLATION] On the voir dire, the trial judge had to rule only on the admissibility of the confession submitted by the prosecution, namely whether it was free and voluntary. In my opinion, he did not have to decide at that time whether it was actually made by respondent and whether it was true. By admitting it in evidence, the judge ruled that the Crown had proved beyond any reasonable doubt and to his satisfaction that respondent had not been subjected to undue pressure before the time at which the Crown contends the confession was made. By subsequently acquitting the accused, the judge in no way contradicted himself. He found that the additional evidence introduced during the trial created a reasonable doubt in his mind.

With respect to the Crown’s contention that the trial judge could not, for his final decision, take into account respondent’s testimony during the voir dire, this is in my opinion excessive formalism. To require the judge to hear the accused and, if we are to be logical, all the other witnesses on the voir dire, a. second time, is in my view an unjustified waste of time.

For his part, Turgeon J.A. said, inter alia:

[TRANSLATION] I am not convinced that in a trial where a judge is sitting alone, he may, without the consent of the parties, take into account the testimony of the accused on the voir dire when deciding on the merits, because in principle the prosecution is restricted at that time in its cross-examination of the accused…

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However, in this case, as my brother has shown, the accused, counsel for the prosecution and the trial judge all took it for granted that the accused’s testimony on the voir dire was part of the evidence at the trial. This was done without any objection or protest on the part of counsel for the Crown. There was thus tacit consent on this point and it is too late to raise the objection on appeal.

Dubé J.A., with the concurrence of Bélanger J.A., said inter alia:

[TRANSLATION] In a trial before a judge sitting alone, it is not necessary to treat the voir dire as a trial within the trial, since it is the same judge who has to rule on the admissibility of the confession and also on its probative value.

The commonly accepted expression in our case law, that the voir dire is a trial within a trial, is only an expression, not a fact. There is in fact only one trial, but in the portion which takes place before a jury, it is the judge’s duty to take all possible precautions to ensure that the jurors are not influenced by unlawful or inadmissible elements of evidence…

However, in trials before a judge sitting alone, these formalities become completely pointless. The evidence heard by the trial judge on the voir dire is as much a part of the trial as any other evidence. It is not even necessary for the parties to agree for this evidence to be included in the record, because it is there already.

In my opinion, this rule also applies to the testimony of the accused if he chooses to testify during the voir dire. Clearly, the judge should not then take into account questions, which the accused may have been asked in order to test the truth of his testimony, regarding his criminal record or even his confession (DE CLERCQ, Supreme Court, reported in 4 C.R. N.S. p. 205; a majority decision, three dissents). He must disregard these “side issues” in the case and keep strictly to the proven facts…

Moreover, in the instant case it is clear that the accused, who presented his own defence, was always under the impression that the testimony he gave on the voir dire was also part of his defence (J.R. Vol. 3, p. 480):

No, but Your Lordship, I would like to make it clear that this evidence, since it is voir dire evidence and applies to the three (3) counts, that I will use it in future in the other cases.

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Counsel for the Crown also gave the impression that he considered the voir dire evidence as part of the evidence throughout the entire proceedings, in particular at p. 312 J.R. Vol. 2, when he said:

I object, Your Lordship, not to the accused’s arguments, but to the manner in which he is presenting them, because I would like to know in which record a motion for a nonsuit is being made. At the beginning of the trial, I stated that we would proceed in record 3756, and I also said that the voir dire evidence would be included in the other two records because it is the same voir dire evidence; these are statements which were taken successively; the accused is now making a motion for a nonsuit.

It should first be noted that the Court of Appeal correctly held that, on the voir dire, the trial judge did not have to decide whether the statement that the prosecution sought to introduce in evidence had actually been made, and whether it was true. In a trial by jury, it is for the jury to answer such questions. Consequently, the judge who hears the evidence on the voir dire gives a final ruling only on the admissibility of the statement in question: R. v. Mulligan[2], (Ontario Court of Appeal). When there is no jury and the same judge has to rule on both the admissibility of the evidence and its probative value, he must necessarily withhold his conclusion on the second point until the end of the trial. In fact, with regard to the question as to whether the statement was actually made and whether it is true, the judge presiding over a voir dire in a trial by jury is required to decide only whether there is evidence to be submitted to the jury; it is not for him to weigh such evidence. There is no provision authorizing a judge sitting alone to do otherwise or to make a final ruling on these questions before hearing the entire case. It is true that in DeClercq v. The Queen[3], Hall J., dissenting, appears to say at the foot of p. 921 that on a voir dire, it is the judge’s duty to decide whether the statement was actually made by the accused. However, this must be read with the categorical statement at the top of the same page:

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Once admitted, the statement goes to the jury who alone may decide whether the statement was in fact made, whether it was true and who may give it such weight as they see fit.

The important question in the case at bar is whether, in a case where there is no jury, the evidence on the voir dire is part of the trial evidence like any other evidence, as Dubé J.A. maintains. In my opinion, this statement cannot be supported. No provision of the Criminal Code was cited in support, and I can see no other legal basis for it. Part XVI of the Criminal Code, headed Indictable Offences—Trial without Jury, under which the trial was held, ends with the following section:

502. The provisions of Part XIV, the provisions of Part XV relating to transmission of the record by a magistrate where he holds a preliminary inquiry, and the provisions of Parts XVII and XX, in so far as they are not inconsistent with this Part, apply, mutatis mutandis, to proceedings under this Part;

Provisions concerning trials by jury are in Part XVII, headed Procedure by Indictment. Although the rules concerning the admissibility of confessions, including those for voir dire, are not spelled out there, they definitely form part of the provisions to be followed in the procedure by indictment. In my opinion, it can therefore be stated without risk of error, that those same rules should be applied mutatis mutandis in a trial without jury, “in so far as they are not inconsistent” with the provisions of Part XVII. I find nothing that might be said to be inconsistent. Consequently, we need only consider what changes may be necessary because there is no jury. I fail to see how it could be argued that one of such necessary changes would be the exclusion of any voir dire. There is definitely nothing which prevents a judge sitting alone from proceeding in this regard exactly as if there were a jury. Of course, the result will be that he will also have to decide at the end of the trial whether the confession was actually made, after previously deciding whether it is admissible in evidence. But there is nothing to prevent him from dealing with these two stages separately and from holding on the admissibility of the confession in evidence the “trial within the trial”, which is held

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as a voir dire when there is a jury. Mutatis mutandis means making all necessary changes, but necessary changes only. For this reason I fail to see how it could be decided that in a trial without a jury, a voir dire is unnecessary, and statements made by the accused may be admitted in evidence without a preliminary decision as to whether or not they were freely and voluntarily made. Furthermore, no one appears to suggest that in a trial without a jury a voir dire is unnecessary. But if this is so, how can it be maintained that the rules are different?

I must also add, with respect, that Dubé J.A.’s position appears contradictory. On the one hand he says that if the accused testifies on the voir dire but not at the trial proper, his deposition may be used to his benefit, however he adds:

[TRANSLATION]… of course, the judge should not at that time take into account questions, which the accused may have been asked in order to test the truth of his testimony, regarding his criminal record or even the truthfulness of his confession (DE CLERCQ, Supreme Court, reported 4 C.R. N.S. at p. 205).

For all practical purposes, in my opinion this is tantamount to maintaining that in a trial without a jury, the deposition of an accused on a voir dire may later be used for him but not against him. Nothing of the sort was decided by this Court in DeClercq. In that case the accused was convicted by the trial judge sitting without a jury, and the only question before this Court was whether the judge had erred in asking the accused, who was testifying on the voir dire, whether the statement he had signed was true. Martland J., speaking for the majority, said (at p. 910):

…The sole issue before this court is as to whether the learned trial judge erred in law when he asked the appellant whether the statement which he had signed was true.

In conclusion, he said (at pp. 911-912):

There was no attempt by the learned trial judge in the present case to use the voir dire as a means of determining the guilt of the appellant. He stated at the outset of the inquiry that he had seen the statement and that he

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did not propose to look at it. When it was produced it was handed to the witness for identification and he was questioned concerning it. Had he been satisfied that the statement was not voluntary, the trial judge would not have become aware of its contents. The inquiry as to its truth was related solely to the weight to be given to the evidence on the issue as to whether or not it was voluntary.

In my opinion it is important to consider, as Turgeon J.A. did, that when the accused testifies on a voir dire the prosecution is restricted in its cross-examination of the accused. As Kaufman J.A. states in his book The Admissibility of Confessions (second ed., p. 30), “this should be limited to testing credibility and to the matter in issue”. Thus, if it is held that in a trial without jury the accused’s deposition on a voir dire is part of the evidence and may be used on his behalf, but may not be used against him to the extent indicated above, the accused has a singular advantage and the prosecution suffers an extraordinary disadvantage. This runs counter to the general rule established by the Canada Evidence Act, namely that the accused is not required to testify and his silence cannot be used against him, but, if he chooses to testify, he is treated as an ordinary witness. He may therefore be cross-examined on all facts of the case as well as on anything that may affect his credibility, subject to the one generally admitted exception that he cannot be cross-examined on a statement that was held inadmissible on the voir dire.

In deciding as it did in the case at bar, the Court allowed the accused to testify on the voir dire on a portion of the case that suited his purposes, while avoiding cross-examination on the rest and preventing the prosecution from referring to it. This can hardly be described as formalism; it touches one of the most basic aspects of the administration of justice, namely the rule that any judgment must be based exclusively on the evidence presented at the trial. If it were to be held that in a trial without a jury it is not essential to hold a voir dire, and the judge may admit evidence of statements made by the accused, provided he rules on their admissibility at the end of the trial, I would not

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agree, but I would consider it less objectionable than a voir dire that does not respect the basic rule, namely that it is a trial within a trial, and accordingly the evidence produced therein is to be used on the voir dire only, even though the same judge presides at the voir dire and decides on the merits.

In my opinion, the correct rule was stated by Kelly J. in Re R. v. Shepherd[4], namely that even in a trial without a jury, the evidence presented on the voir dire is not part of the evidence to be considered on the merits. With respect, I do not find the opposite approach, as adopted by the British Columbia Court of Appeal in R. v. Milner[5], convincing or logical. In that case Davey C.J.B.C. said (at p. 180):

…where the trial is before a judge sitting alone. There, the judge is the trier of the fact; he hears the evidence which is given on the voir dire; the voir dire is part of the trial and, regardless of the finding of the learned trial judge in those circumstances on the admissibility of the evidence, any evidence which is given on the voir dire is given as in the course of the trial itself and, if it is relevant, it is admissible in favour of or against the parties. Of course, it goes without saying that the evidence on the voir dire must be confined to what is material to and admissible on the question to be decided upon it.

If the voir dire is an integral part of the trial without a jury, why should the evidence be restricted to a particular question?

On the other hand, I see no objection to the judgment of the Manitoba Court of Appeal in R. v. Bannerman[6]. In that case the accused, who was found guilty, contended that the judge sitting alone should have heard a second time the evidence introduced on the voir dire concerning the free and voluntary nature of the statement. He maintained that the judge having ruled, at the end of the voir dire, that the statement was admissible, it was not enough for the person who had taken the statement to be called upon to introduce the statement in evidence, as was done in the case at bar. In my opinion, the Manitoba Court of Appeal was correct in saying (at pp. 114-115):

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The admission of the statement was allowed only after a voir dire. The learned trial judge held it was a voluntary statement and properly admissible, so after the voir dire it was filed in the trial as Exhibit 3. Counsel did not raise any objection as to voluntariness when the trial resumed after the voir dire, before the statement was filed as Exhibit 3. Mr. Walsh now contends that evidence should have been produced at the trial after the conclusion of the voir dire to show the voluntariness of the statement. I am unable to accept this contention. It is true that after a voir dire in a jury trial the trial resumes and the admission or confession must be proved, including the voluntary aspect, in the ordinary way in the presence of the jury. This is done necessarily because a jury is excluded during the voir dire, and, furthermore, it is part of the jury’s function to assess the truth, and the voluntariness or otherwise, of the statement. However, it is not reasonable to require a repetition in the trial proper, before the judge alone, of all the evidence taken on the voir dire in order to establish whether the statement was or was not made voluntarily. I realize that the voir dire must be kept separate from the trial and that certain evidence on the voir dire must be completely excluded from the mind of the trial judge—such as evidence that might be given by the accused and others—unless leave is given, with the concurrence of counsel, to have voir dire evidence read into the trial for the purpose of saving time. The judge’s function is to decide whether a statement is or is not admissible, and he decides that after hearing the voir dire. Then the statement, if ruled admissible instead of being an exhibit for identification as in the voir dire, becomes an exhibit in the trial, and once it becomes an exhibit in the trial it is part of the evidence by virtue of the ruling of the learned trial judge that it is admissible.

I have underlined the passage in this quotation where the Court refused to allow the accused’s deposition on the voir dire to be considered part of the evidence at the trial. It is possible that only the question whether such a deposition may be used as evidence against the accused was considered, but once again, I fail to see how a distinction can be made and how it can be said that without being evidence against him, it becomes evidence for him. The rule is that what is evidence against a party is also evidence for him. If a statement made by the accused is introduced in evidence, the accused is obviously entitled to rely on everything in the statement that may be favourable to his case. This is not doubtful.

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It only remains to consider whether in the record at bar, there was a consent on the part of the prosecution that the evidence introduced on the voir dire be used as evidence at the trial. In my opinion, Dubé J.A. was completely mistaken with regard to the meaning of the statements made by counsel for the prosecution which he cited. In order to properly appreciate the meaning of these statements, it must be remembered that the accused was on trial on three different indictments, that is, three different cases before the same judge. The statements made by counsel for the prosecution were only that he intended that the evidence introduced on the voir dire in the first case should also be used in the other two cases. It is clear that there was no question of using it otherwise than as evidence on the voir dire in those other cases. In fact, in each case, the prosecution relied on a separate statement made at the same time before the same witness, Det. Maccarone.

In view of these facts, it is clear that when the accused referred to three “counts”, he actually meant three indictments. After carefully examining the record in this regard, I must come to the conclusion that the statements quoted by Dubé J.A. meant only that the evidence introduced on the voir dire in the first record was to be used for the same purpose in each of the other two records. The accused’s comments on this show that he understood these statements and there is nothing from which one can conclude that the prosecution consented that evidence introduced on the voir dire should be used as evidence at the trial. Without such consent, this evidence could not be used on the merits, any more than could a deposition taken at a preliminary inquiry that had not been introduced as evidence at the trial in the prescribed manner, in cases where, exceptionally, this is permitted or agreed upon. It no doubt often happens that on appeal from a judgment on summary conviction, the parties agree to use the evidence introduced before the magistrate rather than having a trial de novo. However, without such consent, the evidence introduced in the first trial is not part of the record when an appeal is taken, and this cannot be regarded as unnecessary formalism.

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In conclusion, it should be noted that the judgment of the trial judge shows that the reference to the accused’s deposition on the voir dire is the very basis for the conclusion as to a doubt on which the acquittal was based. Consequently, in my opinion, the prosecution has shown the existence of the condition required for the granting of a new trial in accordance with the principles laid down in White v. The King[7].

I conclude that the appeal should be allowed, the judgments of the Court of Appeal and the acquittals by the trial judge on the two charges mentioned therein should be set aside and a new trial on these charges should be ordered.

Appeal allowed.

Solicitor for the appellant: Gérard Girouard, Montreal.

Solicitor for the respondent: Gilles Dansereau, Montreal.