Dean's Case — Assault & Weapons — Dismissed

Background
Dean and his girlfriend were drinking. They had a nasty fight. There was blood everywhere. When the police arrested Dean, they seized guns that they said were stored carelessly. Dean was charged with assault bodily harm and two counts of careless storage of firearm. Our defence was self-defence. For the weapons, I had intended an attack on the search and seizure, but I never got to make that argument. On the morning of the trial, the Crown agreed with me that the careless storage charge should be withdrawn. We then had a trial on the assault bodily harm charge. After hearing the evidence, the Judge said he didn't know who to believe. He then dismissed the charge.

Dean's Case
Police Report

Between
Her Majesty the Queen, and Dean W.

[2000] O.J. No. 5793

Ontario Court of Justice
Oshawa, Ontario
Dodds J.

Oral judgment: June 8, 2000.
(10 paras.)

Charge:	Assault Bodily Harm, Criminal Code, s. 267(b)
Counsel:	J. Kim, Assistant Crown Attorney, Oshawa Craig Penney, Criminal Defence Lawyer, Toronto

¶ 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.