A trial judge's use of the phrase 'whether or not' the complainant consented, rather than directing that the Crown must prove beyond reasonable doubt that the complainant did not consent, constitutes a misdirection that tends to shift the onus of proof to the accused and is fundamental to the fairness of the trial. Leave under rule 4 of the Criminal Appeal Rules will be granted where such a misdirection deprives the applicant of a real chance of acquittal. The validity of rule 4 insofar as it restricts the statutory right of appeal on questions of law alone remains an open question.
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