DATE: 20030624

DOCKET: C38985

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. MALCOM CHARLES (Appellant)

BEFORE:

DOHERTY, ARMSTRONG JJ.A. and BLAIR R.SJ. ad hoc

COUNSEL:

Alan Richter

for the appellant

Sarah Gray

for the respondent

HEARD & ENDORSED:

June 13, 2003

On appeal from the order of Justice Salmers of the Superior Court of Justice dated September 25, 2002.

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

[1] The appellant’s own statements provided ample evidence from which a reasonable jury, properly instructed, could infer that the complainant was not consenting and could not consent to the sexual activity.

[2] The appellant’s claim that the committal was arbitrary and made in the absence of any evidence from which the absence of consent could be inferred is without merit.

[3] The appeal is dismissed.