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Russell Wangersky: Both sides now

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The scales of justice. — Stock photo

There’s a reason police officers hate to be called to what used to be known as a “domestic disturbance.”

Russell Wangersky
Russell Wangersky

The reason is that there’s nothing domestic about it; the collision between partners, spouses, ex-spouses, etc., can be heated, dangerous and unpredictable.

So there’s no wonder that criminal charges sometimes arise, and there’s no wonder that they sometimes end up featuring the kind of “he said/she said” testimony that makes it hard for a judge to reach the standard that “beyond a reasonable doubt” a crime has been committed.

That brings me to something that is not a big-name case — it doesn’t involve the entertainment industry or any sort of celebrity, just the everyday average world we live in. There’s no real reason to use the names of the people involved, or to say much more than that it happened in a rural Newfoundland town.

What’s interesting is the issue and what it says about making decisions as to who’s at fault at the very beginning of a process, based on nothing more than your own social biases and whatever smattering of evidence you happen to have.

Here’s the case in a nutshell: a man (I’ll call him Ed) was upset about parenting issues with his son. He went to the home of his ex-partner (I’ll call her Mary) and confronted her about it at the front door.

Two witnesses against one, angry ex-partner — what do you think? Self-defence or not? Who do you believe is the real victim?

A friend of Mary’s was in the kitchen, cooking dinner. Mary and her friend say the argument got heated, with Mary testifying that she was afraid. The judge wrote in his verdict, “She said that she experiences severe panic attacks. She also said that when the complainant came to the house, she ‘started to panic’ and eventually was ‘frozen with fear.’”

Mary and her friend said Ed got more threatening and, red-faced and eyes bulging, started to come inside. To protect Mary, her friend pushed Ed across the deck, through a deck railing and onto his back on the lawn. The friend then told Ed “I’ll f--king kill ya.”

Mary’s friend was charged with uttering threats and assault. Mary and her friend both said the friend was acting in self-defence.

Two witnesses against one, angry ex-partner — what do you think?

Self-defence or not? Who do you believe is the real victim?

OK, so those aren’t all of the facts — there’s one thing I haven’t mentioned yet.

Ed had pressed the “record” button on his cellphone before he went to Mary’s house.

(Stop right here for a sec. There is, of course, an argument to be made that, if you’re the only one who knows a confrontation is being recorded, you have the advantage of tailoring your behaviour — or keeping your temper — to show yourself in the best possible light.)

That recording ended up being integral to the case. Other than the investigating police, the recording and its resulting transcript, the judge says, were “the only objective evidence in this matter.”

And the recording told a different story.

“From the transcript, we know that there were no threats uttered by (Ed), towards anybody,” the judge wrote. “Even if we take the view of the evidence most favourable to the accused, the most that (Ed) might have done is taken a step towards the bottom step of the flight of stairs going upstairs in the house. As a result, he was never closer to (Mary) than six feet, there was no force being used against anybody, nor was there any threat of force.”

Mary’s testimony that she was frozen with fear? The judge says the series of insults thrown out by Mary during the argument (the judge lists several) suggests something else: “The abusive invective … does not appear consistent with someone who is ‘frozen with fear’ during a ‘panic attack.’”

In particular, the judge wrote, her remark, “‘(Ed) you needed that a long f--king time ago’ was made while (Ed) was on his back on the lawn outside the house.”

Mary’s friend was convicted.

But what happens if there was no audio recording?

That’s the problem.

This is not the situation in every case. But it does have implications.

Why? Because it makes clear that no one is implicitly on the side of the angels, simply because they make an allegation.

There are rarely clean hands. It’s not even necessarily deliberate in all cases; everyone looks through their own lens when they tell you about what happened in any particular circumstance.

But on top of that, everyone is capable of lying.

What do we do to solve that?

Do we all carry recording devices, to be activated whenever something seems to be going south?

I wish I knew.

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Recent columns by this author

Russell Wangersky: When you can't trust your partner

Russell Wangersky: Shrinking wallets, special offers

Russell Wangersky’s column appears in 39 SaltWire newspapers and websites in Atlantic Canada. He can be reached at russell.wangersky@thetelegram.com — Twitter: @wangersky

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