Aug 9, 2018

A reflection on R. v. Donald, 2018 CanLII 49158 (NL PC)

R. v Donald, 2018 CanLII 49158 (NL PC)

Criminal law has a difficult relationship with Truth, in the epistemological sense. It aims to uncover the true version of events, and to apply its rules to it as things really were. However, as a human enterprise, it is prone to the same pitfalls of knowing as the human beings that populate it. What is "true" becomes much more difficult to uncover when recounted through individual memories, inherently subjective. Needing a stable conclusion, as objective as possible, the criminal law thus has to rely on principles that diverge from the truth-finding function in order to ensure that a version is chosen to which to apply legal effects.

This recent case is a great illustration. Everyone involved agreed that the accused had committed an assault. However, two versions of truth competed for recognition as the chosen legal truth: whether, after they argued, the accused punched the complainant in the head and pushed her on the bed; or, whether the accused merely slapped the complainant, which later fell on the bed after bumping into him.

The judge created a legal truth from an amalgam of both competing versions. Under the beyond a reasonable doubt standard, which was crystallised in such he-said-she-said situations in a test known after the Supreme Court case of R. v. W.(D.), [1991] 1 S.C.R. 742, he accepted that it was possible that the accused only slapped the complainant. He was left with a reasonable doubt. He, however, rejected that it was possible that the complainant fell on the bed without being pushed by the accused. He was not left with a reasonable doubt. The Truth remains elusive, but a legal conclusion is reached so to ensure that criminal law can be applied. "Judgment accordingly." (par. 32)