Wednesday, December 23, 2015


R. v. H.A.K., 2015 ONCA 905:

[11]       First, the law imposes no requirement that the complainant's evidence be corroborated, whether because of the nature of the offence alleged or otherwise. Indeed, it would have been legally wrong for the trial judge to have instructed the jury, expressly or by necessary implication, that corroboration was required or that it was unsafe for the jury to find the appellant guilty of sexual assault in the absence of corroboration: Criminal Code, s. 274. The evidence of a single witness may satisfy the trier of fact beyond a reasonable doubt of the guilt of an accused. 

[12]       Second, to the extent that the appellant advocates use of the term "corroboration" in the instruction, it is a term long since interred and unworthy of exhumation. See, for example, Vetrovec v. R., [1982] 1 S.C.R. 811, at p. 831.

[13]       Third, in a criminal trial, the Crown has a discretion about whom it will call as witnesses. It is obliged to put forward sufficient witnesses so that the essential elements of the offences charged can adequately be proven. A decision not to call certain witnesses carries the attendant risk of failing to meet the burden of proof imposed on it. But that is for the Crown to decide absent evidence that the discretion is being abused: R. v. Yebes, [1987] 2 S.C.R. 168, at pp. 190-91; R. v. Cook, [1997] 1 S.C.R. 1113, at paras. 30-31, 54. 

[14]       Fourth, at least twice in his instructions on the burden and standard of proof, the trial judge told the jury that a reasonable doubt could arise from an absence of evidence. In his canvass of the position of the defence, the trial judge repeated counsel's submission about the absence of evidence as a source of reasonable doubt about the appellant's guilt.

Of the Law Societies of Upper Canada and Nunavut 

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