W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue.

DATE: 20030718

DOCKET: C37386

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– N.E.L. (Appellant)

BEFORE:

LASKIN, MOLDAVER and CRONK JJ.A.

COUNSEL:

Louise Botham

for the appellant

Erika Chozik

for the respondent

HEARD AND ENDORSED:

July 16, 2003

On appeal from the conviction entered by Justice J. David McCombs of the Superior Court of Justice, sitting without a jury, dated November 1, 2000.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant raises three grounds of appeal. First, given that the trial judge determined that it was dangerous to accept the complainant’s version of events in the absence of independent corroborative evidence, the trial judge erred by making findings of fact in the absence of such evidence. Second, the trial judge erred by failing to consider independent evidence inconsistent with the complainant’s version of events, in particular, the evidence of the complainant’s co-worker concerning the nature of the complainant’s relationship with the appellant. Third, the trial judge failed to give due regard to the significance of the absence of evidence establishing that the complainant sustained physical injuries during the alleged sexual assault.

[2] We would reject each of these grounds of appeal.

[3] Although the trial judge indicated that it would be very dangerous, in his view, in the circumstances of this case to rely on the complainant’s evidence where that evidence was not corroborated by independent evidence, he properly recognized that corroboration is not required in a sexual assault case. The approach adopted by the trial judge benefited the appellant because it resulted in the application of a standard of proof higher than that required at law. In any event, the trial judge found ample corroborative evidence on the essential elements of the offences for which he found the appellant guilty. In our view, the trial judge did not err in his assessment of the evidence and there is no basis for appellate interference with his findings.