Dean's Case — Assault & Weapons — Dismissed

Between
Her Majesty the Queen, and
Dean W.

Ontario Court of Justice
Oshawa, Ontario
Judge Dodds

Dismissed:  8 June 2000
(10 paras.)

¶ 1     DODDS J. (orally):  We've heard two different stories, two different versions of what happened that may have caused the injuries attested to by the photographs that we've seen here.

¶ 2     Defence counsel has referred to R. v. D.W. It's a 1991 decision, Supreme Court of Canada, that defines what proof beyond a reasonable doubt means.

¶ 3     I listened to this evidence and the complainant has told a credible story with gaps in it. This man has told a story with some detail and it has some gaps in it.

¶ 4     They'd been drinking a great deal. I suspect that they were more under the influence of alcohol than perhaps what Constable R*** suggests.

¶ 5     Which story to believe or is there a third? There's various elements in both of their stories. The thing about R. v. D.W., his definition says at page 406 of 63 C.C.C. (3d):  "proof beyond a reasonable doubt is proof that convinces the mind and satisfies the conscience so that you feel bound or impelled to act upon it."

¶ 6     The Crown has made a valiant effort to reconstruct what happened, and it may very well be that it happened just the way the complainant said it did; but, having listened to their respective stories, I can't conclude that the Crown's case is such to convince the mind and satisfy the conscience to the point that you feel impelled to act upon it.

¶ 7     The gaps in his story and her story are such that I don't think we will ever know beyond a reasonable doubt what occurred on that unfortunate evening, and just precisely how these injuries occurred. I suspect that it happened the way she said it did and I'm inclined to believe her, but that doesn't constitute proof beyond a reasonable doubt and we're simply left, in the end, with their different stories.

¶ 8     Charge will be dismissed.

¶ 9     MR. PENNEY:  Thank you, Your Honour. Thank my friend.

¶ 10     MR. KIM:  Thank you, Your Honour.

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