Ontario Court of Justice
Between:
HER MAJESTY THE QUEEN
— AND —
WILLIAM BRUCE MATHEUSZIK
Before: Justice L.M. BALDWIN
Heard on: March 4, 26 and 27, 2015
Reasons for Judgment brought forward from: June 12, 2015
Released on: April 27, 2015
Counsel:
- Mr. S. Bradley — counsel for the Crown
- Mr. A. DiCarlo — counsel for the defendant William Bruce Matheuszik
BALDWIN J.:
Charges
1William Matheuszik is charged with 3 counts as follows:
(1) that on or about the 29th day of June, 2014, at the Town of Oakville he did commit an assault on Charmaine Mangaoang, contrary to s. 266 of the Criminal Code;
(2) that between the 1st day of June, 2014 and the 30th day of June, 2014 at the Town of Oakville he did by verbal means knowingly utter a threat to Charmaine Mangaoang to cause death to her, contrary to s. 264.1(1)(a) of the Criminal Code;
(3) that on or about the 8th day of July, 2014, at the Town of Oakville, he did commit an assault on Robbin Patrick MacDonald, contrary to s. 266 of the Criminal Code.
2The Crown proceeded summarily.
Background
3The accused (Bill) aged 50 years (born July 7th, 1964 in Montreal) has been a pilot for 30 years, employed by Air Canada for 19 years, and a Captain with Air Canada since 2000. He has no criminal record.
4He has been married three times and has children from his past marriages. [1]
5He met his current wife, Charmaine Mangaoang, online on a dating site in June of 2011 when she was 18 years old. She was a high school student living with her parents in the Philippines at the time.
6On January 12th, 2013 they were married in the Philippines. Charmaine still lives in the Philippines and travelled to Oakville to visit with her husband on a Visitor's Visa at various times throughout the summer of 2013 to the summer of 2014. She would fly back to the Philippines from time to time. They both testified that the master plan was for both of them to eventually live full time in the Philippines.
7Bill was living in a townhouse owned by his parents at 3350 Grand Ravine Drive Unit #33 in Oakville.
8Robbin MacDonald (age 45 years) moved in as a tenant in May of 2013 according to his evidence. Bill testified that Robbin moved in sometime in 2012. Robbin was still living there at the time of the alleged offences. Mr. MacDonald paid rent. He had one of the 3 bedrooms with full use of the house. Robbin and Bill had been good friends for many years. They originally met through motorcycle bike activities.
9Robbin was re-training at Ryerson University in the Occupational Health and Safety field. He had previously worked in the film industry, but due to physical injuries, he could no longer perform the required duties. He has a Master's Certificate in Advanced Television and Film from Sheridan College.
10Ross Dion (age 41 years) moved in as a tenant about one week before the alleged July 8th offence. He was also re-training at Ryerson University where he met Robbin MacDonald approximately 2 months before. Ross told Robbin that he needed a place to stay. Robbin asked Bill if Ross could move in and Bill agreed. Bill had no prior dealings with Ross before he moved in. Charmaine testified that she first met Ross in the house on July 3rd, 2014.
11The central Crown witness at this trial was Robbin MacDonald. He and Ross Dion testified that Bill assaulted him on July 8th, 2014 at approximately 11:00 p.m. in the evening. The dispute was primarily about Bill moving Robbin's belongings in the house that day without his prior knowledge or consent. Robbin testified that there had been tension in the house for months due to Bill and Charmaine fighting.
12Robbin MacDonald also testified about the domestic violence allegations. He testified that Bill threatened Charmaine with death and assaulted her by hitting her head as she was covered up by a garbage bag that Bill had placed over her. Robbin testified that Bill had ordered Charmaine to sit on the front stoop in this bag. Bill told Robbin not to move the bag of 'garbage'.
13Other allegations were made by Mr. MacDonald, including Bill locking Charmaine out of various rooms of the house and the house itself. Allegations included locking the freezer and fridge to prevent Charmaine from eating food when he was mad at her and other controlling and demeaning behaviour.
14At trial, both Bill and Charmaine vigorously denied all the allegations and placed the blame for all conflict on Robbin MacDonald.
Summary of the Testimony of Robbin MacDonald
15When Robbin moved in, Bill's 18-year-old son Jesse was living there. Jesse was a little bit wild and Bill had concerns about his behaviour. Because Bill was away a lot for his work as a pilot, he wanted Robbin to provide a stabilizing influence in the house.
16After Bill married Charmaine, there were issues between Bill, Charmaine and Jesse, but there were no issues between himself and Bill.
17Sometime after Charmaine came to Canada on a Visitor's Visa in January of 2014, Jesse moved out.
18Just days before the July 8th, 2014 assault, Ross Dion moved in as a tenant in the house. The townhouse had 3 upstairs bedrooms.
19On Tuesday July 8th, 2014, Robbin and Ross had been out of the house doing things for school.
20They returned to the house in the afternoon. Bill and Charmaine were in the house.
21When he got home that day Robbin discovered that a lot of his property in the house had been moved, including his hockey equipment. His stuff had been piled up downstairs in the basement which made him angry. He had previously asked Bill not to move his property without telling him first.
22Robbin testified that the atmosphere in the house had been very tense for some time because of the arguments between Bill and Charmaine. For that reason, he had decided over a month before that he was going to be moving out of the house in the near future. As a result of his property being moved without his knowledge or consent on this day, he decided that he was going to move his things out. He testified that a lot of the things in the house belonged to him. He started to pack up his dishes in the kitchen cupboard.
23Bill had been downstairs watching a movie with Charmaine. Bill then came upstairs. Ross was in the living room sitting down. The kitchen is open to the dining room [reference photograph Exhibits #2 (b), (c), (d)].
24Robbin made it clear to Bill that he was upset that his property had been moved and they both started to yell and swear at each other. Robbin told Bill that he was leaving and Bill told him to 'get out'.
25Robbin was looking into the cupboard that faces the living room. His back was to Ross at the time.
26Then Bill charged quickly at him from a distance of approximately 10 feet. Bill hit his neck with a part of his body and Robbin's glasses flew off. Bill pushed him another 8 feet or so and they ended up against the glass patio door. Robbin's back was up against the door and Bill's head was in his arm at chest level.
27Bill struck him two times in the stomach and once in the groin/privates using his fist. Then Bill backed away and it stopped. The yelling between them continued. At some point during this altercation, Charmaine came upstairs from the basement. She was screaming 'call the police'. Ross was standing there observing.
28Robbin testified that he entered the living room and called 911 on his cell phone. The police arrived 5 to 10 minutes later.
29In cross-examination, Robbin testified that he has never initiated a physical fight with anybody.
30He denied that any of his prescribed medications makes him aggressive. (Transcript March 4, 2015 pp. 45, 65)
31Robbin testified that prior to July 8th he had a great relationship with Bill. He did not have a great relationship with Charmaine. He had discussed calling the police with her before because of Bill's behaviour toward her, and she always said no. He did not call the police himself because Charmaine and Bill would both deny that anything had happened.
32Robbin denied putting Bill into a headlock. Robbin testified that Bill charged into him with his head to his chest "like a bull" and his reaction was to put his "damaged" arm around Bill's head. Bill could have easily just pulled away. His grip on Bill was minimal. The whole time he was trying to calm Bill down. (pp. 52, 53) At no time did he hit Bill back. (p. 69)
Re: Robbin's Previous Injuries
33Robbin testified that right after the incident he had to support his arms because they were hurting.
34In 2005 he had been playing hockey as a goalie when his head was slammed into the goal post which resulted in a broken neck. He sustained fractures to vertebrae C5 and C7. C6 was significantly damaged. His ankle and hip were also damaged.
35He lost a lot of his linguistic skills and had problems with his speech. It took almost a year to get his functioning back.
36Subsequent to that, he went through cancer treatments for a few years at the Juravinski Cancer Centre (Hamilton). Bill was his best friend and took him to all his doctors' appointments.
37After that he started to have problems with the mobility in his hands and arms. It felt like his arms were constantly broken at the elbows because his bones started to grow into his spinal cord so the nerves out to his arms were constantly being pressed.
38These problems stemmed from the broken neck and were present during 2014 and at the time of the assault. Robbin testified that Bill was aware of all of this.
39Robbin was asked why he was stammering and having trouble getting his words out during portions of his testimony. Robbin testified that it was something that is triggered by emotion. He had trouble like that as a child and it has started to happen again over the last while.
Re: The Locked Fridge
40Robbin testified that there were two fridges in the kitchen. One was for his use, (and then Ross), and one for Bill and Charmaine.
41When the police arrived on July 8th, they asked him about the lock on the freezer and the wire around the handle that was on Bill and Charmaine's fridge. (see Exhibit # 1)
42He told them that when Bill and Charmaine would fight, Charmaine would say really mean things to Bill. When the fights got bad, Bill would lock the door to his bedroom and the fridge.
43Robbin testified that he had talked in confidence to Bill about this before and told him that he should see someone to deal with the stress and the negativity between him and Charmaine. He told Bill that if the police became involved he would never lie for him.
44Robbin testified that he also told the police that when Bill got really mad at Charmaine he would lock her out of the house. Sometimes it would be cold outside and she would just be wearing shorts and a tank top. Robbin would bring her back inside when he was home. It happened last winter when there was lots of snow.
45Sometimes Bill would make her stay in the basement. If Charmaine came back upstairs, Bill would put her back down there again. Bill would sometimes put Charmaine in the corner of a room and make her stay there.
46In cross-examination, Robbin denied that he had ever locked Charmaine out of the house. (p. 55) He testified that it felt like Bill locked Charmaine out of the house once or twice a week. (p. 78)
47When Charmaine ran away from the house she would be gone for four or five days at a time. (p. 79)
48Robbin testified that the black lock used to lock the fridge was kept in the garage when it was not on the fridge. He has never seen it used to lock the bikes in the garage.
49The padlock was always on the freezer. When Bill would get mad he would use the big black lock to bind the fridge and freezer portion together. (p. 73) When Bill used the big black lock, it was the "ultimate". Robbin would see the lock on the fridge. Robbin would let Charmaine eat out of his fridge when that happened.
Re: June 29th, 2014 – 'Garbage Bag' Assault
50This was a Sunday at approximately 7:00 a.m. (p. 93)
51Robbin had been asleep in his upstairs bedroom and went downstairs to make a protein shake. He was walking back to his bedroom when he had a conversation with Bill at the top of the stairs.
52Bill told him not to touch the garbage at the bottom of the stairs.
53Robbin looked downstairs and saw Charmaine sitting down on the floor covered by a garbage bag. Her feet were sticking out of the bag.
54Bill said "don't touch her, she's garbage, that's where she belongs." (Transcript March4/15 p. 31) Bill said it matter-of-factly.
55Robbin testified that when things got bad between Bill and Charmaine, Bill talked to him so that Charmaine could hear.
56Bill went down and slapped the top of the garbage bag with his hand.
57As soon as Bill walked away, Robbin took the bag off of Charmaine. She was sitting with her knees drawn up to her chest. She would go into this position when she was afraid.
Re: June 28th, 2014/or End of June 2014 – Utter Death Threat
58It happened in the morning. The evidence varied on whether this occurred at approximately 7:00 a.m. or 9:00 a.m.
59Robbin had been asleep in his upstairs bedroom. Bill and Charmaine were in their bedroom.
60Robbin was awakened by the sounds of Bill and Charmaine fighting in their room. "They were fighting, screaming, yelling at each other. It sounded like stuff being thrown." (p. 34)
61Robbin heard Bill scream "I'll fucking kill you – I'll choke the life out of you". (p. 34)
62Afterward, when they were downstairs near the front foyer, Bill asked Robbin where he kept his hunting knives. This was said anywhere from 5 minutes to 30 minutes after the fight in the upstairs bedroom.
63In cross-examination, Robbin testified that after he heard Bill threaten Charmaine that day he asked her if she was okay because she was crying.
64When Bill made the comment about where do you keep your hunting knives, Robbin thought it was inappropriate and concerning. Things were escalating to a point where Bill was starting to become someone he did not know. Robbin testified that Bill was increasingly acting upset, depressed and angry. (p. 83)
Re: Use of Restraints
65Robbin testified that when Bill was out of the house, Charmaine would spend a great deal of time in their bedroom. "She spent like 20 hours a day in their bedroom." (p. 36)
66One day Bill and Charmaine had a bad fight and Bill took off for a ride on his motorcycle. He came back about 2 hours later and told Robbin that he had harnessed Charmaine naked to the bed and asked Robbin if he wanted to see. (p. 37) Robbin did not want or ask to see.
67In cross-examination, Robbin testified that Bill told him that he had some kind of restraint on the bed and that he had harnessed Charmaine to the bed naked. He said it in a mundane/matter of fact tone.
68Charmaine never asked him to call 911. He did hear Charmaine threaten Bill that she would call 911. (p. 86)
Testimony of Officer Andrew Short
69He has been employed with the HRPS since December of 2013. He responded to the 911 call made on July 8th, 2014 and arrived at the townhouse at 11:08 p.m.
70He observed the 'apparatus' on the fridge when he was in the house.
71After Bill had been arrested and advised of his rights by Officer Williams, he was present when Officer Williams asked Bill about the locks on the fridge. Bill replied, "I'm an idiot. I lock it on my wife when we are arguing." (p. 97)
Testimony of Officer Kim Williams
72She has been an officer with the HRPS since August of 2012.
73She was dispatched at 11:12 p.m. and arrived on scene at 11:20 p.m.
74She observed the wire attached to the lower arm of the fridge and the hinge with a deadbolt on the freezer. The large black lock was not attached to the fridge at the time.
75After she arrested Bill, she asked him why the locks were on the refrigerator. His response was "that he was an idiot and locks the fridge door via the handle when arguing with his wife." (p. 101)
Testimony of Ross Dion
76Ross was re-training at Ryerson University in the summer of 2014.
77As of July 8th, 2014 he had only moved into the house 1.5 weeks before. He had not met Bill before he moved into the house.
78On that day, he and Robbin had been at the University. He dropped Robbin off at Bill's house and got dinner and then returned to the house and was in the living room.
79When he got back, Robbin was packing his stuff because Bill had moved some of his things when they were gone from the house.
80Robbin was in the kitchen taking things out of the cabinets. Bill asked him what he was doing and Robbin explained he was moving out at the end of the month and was going to put his stuff in storage. Bill was telling him to 'get out of my house.'
81Bill started to walk to the front door. He turned around and charged at Robbin. Robbin's glasses flew off of his face.
82Robbin defended himself by putting Bill in a headlock.
83About 10 to 15 seconds later, Bill pushed Robbin back into the (glass patio) doors and he started hitting him in the groin.
84Robbin never struck Bill.
85Charmaine came in and said call the cops.
86In cross-examination, Ross testified that he was sitting on a chair in the living room when the incident started. He got up from the chair and watched the altercation take place.
87Ross testified that the posts depicted in Photo Exhibits #2(a) through (d) were not obstructing his view.
88He had known Robbin for a couple of months before the incident. At the time of the incident he had no issues with Bill or with Robbin.
89Before the incident he and Robbin had made up their minds to leave Bill's house by month's end. Someone, not Bill, had been into their rooms and things had been taken. The trust issues were with Bill's wife.
90The physical incident started when Bill used two hands to push Robbin's face. This push caused Robbin's glasses to fly off.
91Robbin put Bill in a headlock for a few seconds, then Bill pushed Robbin to the sliding doors. Robbin was telling Bill to calm down. Robbin was not calling Bill out to fight. Bill was swinging and made contact with Robbin's groin area.
92After Bill was arrested that night, his wife got into a car and disappeared.
93He and Robbin stayed in the house to the end of the month. During that time, there was some contact with Bill's father.
Testimony of Charmaine Mangaoang
94Charmaine testified through a Tagalog interpreter.
95Charmaine is 21 years of age. She was born April 1, 1993 in the Philippines.
96She met Bill online through a dating site in June of 2011 when she had just turned 18 years old. They chatted for 3 months before Bill came to visit her in the Philippines on September 21, 2011. Thereafter, Bill would come to the Philippines and visit her every month for 2 years. They married in the Philippines on January 12, 2013. She first came to Canada in June of 2013 as a visitor.
97They have no children, but she wants to have children with Bill.
98Bill is a pilot for Air Canada.
99Bill has never hit her or made her feel bad. He has never threatened her, put her in a garbage bag or locked her out of the house. Bill has never thrown anyone out of the house.
100Charmaine testified that she had a bad relationship with Robbin. She dislikes his character and his attitude. He tells lies and blames her for stealing his keys. He yells at her.
101On June 27th she was in the backyard and Robbin told her to go in the house and clean up her 'shit'. Then he locked the door to the house. This was around 10:00 or 11:00 in the morning. She texted her husband so he would tell Robbin to open the door. Her husband was at work at the time. Robbin came back out 15 minutes later.
Re: Locks on Fridge/Freezer
102Charmaine testified that the freezer in the kitchen was locked twice by Bill because he did not want her to eat a lot of ice cream because it was bad for her. She would not describe Bill as controlling. She was pleased that he cares about her body and her health.
103Both times that Bill locked the freezer happened in the month of July 2014.
104Charmaine testified that the motorcycle lock was never put on the fridge.
105Bill put the locks on the freezer and fridge because the fridge was leaking.
106When she first came to the house there was only one fridge and it started to break down and water was leaking. Bill's brother gave them another fridge and then they had two.
Re: June 28 and 29th, 2014
107Charmaine testified that she was not even in the house on June 28 or 29th when the threat and assault on her are alleged. She was at Maria's house in Toronto.
108She left because of her fight with Robbin on June 27th. She left the house around 5:00 p.m. on June 28th and did not come back until the evening of July 2nd when Bill picked her up.
109She did not meet Ross until July 3rd, 2014 when he had already moved into the house.
Re: July 8th, 2014
110She and Bill had cleaned the house during the day. They watched a movie downstairs and she went upstairs to get ready for bed.
111She came downstairs and saw Ross in the living room sitting on a chair using his laptop.
112She saw Robbin and Bill against the door. Robbin had Bill in a headlock.
113She told Ross to call the police because she was scared that Robbin was going to kill Bill. After she said that, Robbin let Bill go.
114Charmaine testified that she did not see Bill punch Robbin.
115After Robbin called the police, Bill called a friend of his from work (Jessica Cirino) to come and pick her up. She stayed there for the night and then stayed with Cathy and later with Maria, who are both Filipino.
116She stayed at the Oakville townhouse for the month of August and then flew home to the Philippines. She came back to Canada in January of 2015 after Bill's father contacted her to say she needed to be a witness at this trial. She is staying at the Oakville townhouse now. She has not talked to Bill since his arrest.
117In cross-examination, Charmaine testified that she did tell the police on July 8th that the freezer had been locked 2 days prior to the incident.
118Bill locked the freezer when she got upset so she won't eat ice cream. Bill does not like it when she eats too much. She does not consider that controlling. She weighs 92 pounds.
119Charmaine told the Officer on a later phone call when asked, that Bill had tied her up and that they did it for fun.
120Charmaine testified that she does not work. She is supported by Bill. Bill's parents give her money and friends help her out.
Summary of the Testimony of William Matheuszik
121He was born on July 7, 1964 in Montreal and graduated from CEGEP there, which is equivalent to an Ontario High School degree.
122He is currently a Captain with Air Canada as noted in the background section.
123He has been married twice before. The first one was in 1990 for 10 years; the second one was for 5 years and ended in 2010.
124He described his relationship with his wife Charmaine as being "spectacular". He denies ever being physically aggressive, threatening or controlling of her.
125He testified that they rarely argued. He cannot even remember what the arguments were about. When they rarely argued, it was 'low key'.
126Bill denied every allegation testified to by Robbin. Bill blamed all the tensions in the house on Robbin. Bill claimed that it was Robbin who drove his son Jesse out of the house. Bill claimed that Robbin tried to break up his marriage to Charmaine. Bill claimed that Robbin was constantly in conflicts with everyone.
127Bill moved into the townhouse owned by his parents in Oakville in 2010. It has 3 bedrooms, one kitchen, 2 fridges and a basement.
128When he first moved in, one of his sons also moved in. His son moved out in the summer of 2013.
(1) Bill and Robbin's Relationship
129He first met Robbin approximately five years ago (2010) through motorcycle riding at a weekly event in Toronto. Robbin was just one of a group of people that he would ride with.
130Sometime in 2012, Robbin told him that he was being evicted and needed a place to stay. He told Robbin he could stay at the townhouse. He knew Robbin quite well by then and actually helped Robbin to move in.
131One day before Robbin moved in, the two of them were riding their motorcycles and a car cut them off. Robbin drove his bike up ahead and yelled at the driver about that.
132After Robbin moved in, the two of them were driving from Oakville to the Dundas Conservation Area to go mountain biking and another car pulled in front of them. Robbin (the driver) pulled up beside that guy and started screaming at him.
133Then there was the time when Charmaine and he were cleaning up the spare bedroom in the townhouse. He did not realize that Robbin had stored some of his toiletries in there and they had been put in the garbage. When Robbin realized his things were in the garbage he went nuts. Bill testified that he told Robbin to calm down; he did not realize that they were his things and he took them out of the garbage.
134Bill testified that his relationship with Robbin was decreasing every day. There was constant conflict. Robbin was always telling him to leave Charmaine. Robbin was constantly diagnosing her with mental illnesses. Robbin always needed to be the "top-dog". (March 27/15 p. 25)
(2) Bill and Charmaine's Relationship
135When he first met Charmaine she was a University student in the Philippines. Since they have been married, Bill has financially supported her.
136Charmaine first came to Canada on a 5-year multiple-entry Visitor's Visa in either June or July of 2013. The Visa required a maximum stay of 6 months at a time.
137Charmaine does not really like the cold weather in Canada, so she went back to the Philippines around Christmastime and returned at the end of February.
(3) Bill and Ross - No Relationship
138Ross was one of Robbin's acquaintances from school. Bill had never met Ross prior to him moving into the house. Robbin had told him that Ross was in a bind and needed a place to stay.
139Ross moved in the last day of June 2014.
140Bill agreed that he never had a relationship with Ross. (Transcript March 26, 2015 p. 27)
141In cross-examination, Bill repeated that he had no issues with Ross. Ross had only been there for 6 days. (p. 64)
(4) Robbin's Relationship With Charmaine
142Bill testified that the more time Charmaine spent in Canada the more Robbin would try to break up their relationship. Robbin told him that Charmaine was bipolar, schizophrenic and psychotic. Robbin would tell him to leave Charmaine. Robbin would tell Charmaine to leave him. (p. 47) Robbin would tell him that his wife was a bitch, a princess and he said that she was controlling everybody. (March 27/15 p. 17)
143Robbin would say things to his son about him. (p 47) It was because of Robbin that his son left the house and moved back in with his mother. (March 27/15 p. 28)
144Charmaine and he had talked three or four weeks before July 8th that Robbin should be moving out. He talked to Robbin about it and Robbin agreed to move out at the end of his semester in October. That was acceptable to Bill.
145Bill testified that there were constant issues between Robbin and Charmaine since the day she first arrived.
146As time progressed, Robbin became increasingly unstable. He would react in odd ways. He would exhibit very aggressive tendencies when Bill was present. (March 27/15 p. 18)
147Things got so bad that Robbin would blame two little pussycats for deflating the tires on his bicycle. (March 27/15 p. 27)
148On July 8th, 2014, Robbin said that he was going to stay for another 6 months. That was unacceptable to Charmaine. They had not figured out a way to get Robbin out of the house without a confrontation. (March 27/15 p. 29)
(5) Bill's Knowledge of Robbin's Injuries
149Bill testified that Robbin complained of many ailments. He had problems with his neck and shoulders. Robbin told him that he had cancer.
150Bill does not believe that Robbin has any difficulties with his arms because he has watched him mountain bike, play hockey and ride a sport bike.
151He has seen Robbin inject testosterone in his buttocks. Robbin injects himself on a weekly basis, but Bill was not sure how many times per week. (p. 34) Right after Robbin injects himself is behaviour is "a bit edgy".
(6) Incident on July 8th, 2014
152During the day, Robbin and Ross were out of the house. He and Charmaine decided to clean the house because friends were going to come over later that week.
153The house was in disarray with Robbin's hockey stuff, his laundry, his director's chair, an axe and a tent, and other items strewn about.
154Charmaine mopped the floors and he moved Robbin's things to other parts of the house.
155He and Charmaine ate dinner and then they watched a movie downstairs.
156Ross and Robbin got back from school about 10 o'clock. Robbin commented on how great the place looked. Robbin liked it when Bill and Charmaine did cleaning.
157Before the altercation began, Bill went upstairs to get some ice cream for himself and Charmaine.
158At around 11 o'clock Charmaine brought some dishes into the kitchen. She came downstairs and told Bill that Robbin was packing up his pots and pans and dishes.
159Before the altercation began, Bill went upstairs to get Charmaine a bottle of water, which he retrieved from the garage.
160He went into the kitchen and asked Robbin what he was doing. Robbin stated that he does not like it when people touch his stuff when he is not there. Bill testified that he was completely "caught off guard" because an hour before Robbin had been fine with everything.
161"And he started yelling, started calling me a pussy, telling me to get a set of balls. He started calling Charmaine a bitch, a whore, a slut. He rapidly approached me, right into my face, nose-to-nose." (p. 38)
162Robbin charged at him from a distance of seven feet away. Robbin was screaming and yelling at him. (March 27/15 p. 22)
163Bill testified that he is only 5 feet 8 inches in height; Robbin is 6 feet, 3 inches in height.
164Bill testified that he was worried and concerned, but he was not angry. Robbin had the right to pack up his things. (March 27/15 p. 23) He was not going to bow down to Robbin. He was protecting/defending himself.
165As he held the bottle of water in his left hand, he used the open palm of his right hand to clear some space between them. He pushed Robbin at chest level about an arm's length away and then the tussling started.
166They ended up on the ground at one point and then as he tried to get up, Robbin had him in a headlock and they ended up against the glass door at the back of the kitchen. Robbin had a strong grasp on him and he was having trouble breathing and his tongue was swelling up. Bill testified that Robbin was 'choking' him.
167He punched Bill in the groin a couple of times so he could break free. The chokehold ended and he was able to get free.
168There was more yelling back and forth. Bill was telling Robbin to get out of the house and Robbin was yelling that he had paid rent.
169Then he and Charmaine went upstairs to change their clothes and they went into the garage to wait for the police. Bill did not call the police because Robbin already had. He believes that Robbin called the police because Bill had stood his ground. Bill did not want to be bullied by Robbin anymore. Robbin wanted to get him in trouble.
170Bill testified that he never touched Robbin's face. He does not know if Robbin's glasses came off. He knows that his own glasses came off during the altercation.
171Bill testified that this was the first time that Robbin had been aggressive with him.
172Ross was sitting in the chair in the living room the whole time. He did not see Ross get up from the chair at any time. Bill does not believe that Ross could have seen the entire physical altercation.
173He did not see Charmaine. He heard her yelling to Ross to call the police.
174The police arrived about 30 minutes later.
175In cross-examination, Bill stated that he came upstairs before the altercation and began to "clean up the kitchen". (p. 47)
176Bill stated that Robbin wanted to "get even with him" because he told Robbin to leave several weeks before.
177Bill stated that he was initially calm. He agreed with the suggestion that after Robbin insulted his wife he got upset and angry.
178Bill stated that he was telling Robbin to calm down. It was Robbin that charged at him.
179The physical altercation ended after he punched Robbin 2 to 3 times in the groin. (p. 64)
(7) June 28th, 2014 – Alleged Death Threat
180Bill denied ever threatening Charmaine in any way on any day ever.
181Bill testified that he was not even in Ontario on that day. On Friday June the 27th he was on an overnight flight in Edmonton. He did not return to Toronto until 10:33 p.m. By the time he drove back home to Oakville, it would have been close to midnight on the 28th.
182Exhibits #3 and #4 were entered as his Air Canada Flight Schedule for the month of June 2014. [2]
183Bill testified that the Schedule shows that he had to check into the Toronto Airport at 6:45 a.m. on the 27th. He would have left the Oakville house at 5:45 a.m. to make that check-in time.
184The Schedule shows that his check-out time on the 28th was 22:48 (10:48 p.m.) which means that he would arrive back in Oakville just after midnight.
185When he arrived back home Charmaine was not there. She was at Maria's house.
(8) June 29th, 2014 - 'Garbage Bag' Assault
186Bill testified that this never happened on any day ever.
187He was back from his flight just after midnight on June 28th, and on June 29th at approximately 9:00 a.m. he went to church. After that he went to Pearson and did a flight to Vancouver.
188Charmaine was still at Maria's house.
189In cross-examination, Bill agreed that he was home on June 29th at approximately 7:00 a.m.
190Charmaine stayed at Maria's house until July 2nd when he picked her up. (p. 55) Charmaine left the residence sometime on June 28th because Robbin commanded that she mop the floors and Robbin locked her out of the house. (p. 55) Charmaine had been traumatized by Robbin.
(9) Re: The Locked Fridge
191Bill testified that the fridge that he and Charmaine used had some "technical issues…It was leaking and the only way that I could figure out how to keep it from leaking was to install a latch on the freezer to hold the doors against the magnets. I believe it was the magnets that weren't working proper." (Transcript March 27/15 pp. 4, 5)
192Bill testified that the big black lock being held up to the fridge in Exhibit #1 is a motorcycle lock for his motorcycle. Bill testified that it has never been used to lock the fridge.
193Bill testified that the wire on the fridge door was used in conjunction with the latch (with the padlock) at the top to hold both doors firmly against the frame because both doors were leaking water onto the floor. (p. 7) Bill testified that he was "constantly having to soak up the water that was falling on the floor". (p. 9)
194He had only installed the wire a few days, or maybe a week, before the incident with Robbin. It was something new he was trying. It was the only thing he could do and he was trying not to buy a new fridge. (pp. 10 - 11) "I'm trouble shooting a fridge that was faulty." (p. 12)
195Bill testified that the keys were always kept in the bedroom. There were keys for the fridge, for the house and for the bedroom. "If we were not in the residence we would lock the bedroom and take the key which had the suitcase locks." (p. 13)
196Bill testified that on two occasions he locked the fridge after having a disagreement with Charmaine. (p. 13)
197When Charmaine gets upset she starts to binge on ice cream.
198"It's not healthy. We don't use the ice-cream as a meal…We use the ice- cream as a treat, occasionally. And it's our agreement that we both do that…At no time did she ever have the inability to get into that fridge. She could've walked upstairs, got the keys, come down and unlocked the fridge." (p. 14)
199Bill testified that he locked the freezer twice because the sweet things were up there.
200Bill testified that his relationship with Charmaine was "spectacular". He intends to stay married to her and to have children with her.
201In cross-examination, Bill denied that locking Charmaine out of the fridge was controlling behaviour. (p. 43)
202Bill acknowledged that after his arrest on July 8th he told the Officers, "I'm an idiot. I lock my wife out after we have arguments" when he was asked about the locks on the fridge.
203Bill testified that he also locks his bedroom door. "The bedroom is always locked. The downstairs furnace room is locked occasionally…I lost my key so that isn't locked anymore. The front door is locked when we leave. The motorcycles are locked up in the garage." (p. 51)
204Bill testified that he changed the handles on Robbin's and Ross' bedrooms doors so they could be locked "to make them more secure". (p. 52) Robbin's bedroom door had never had a lock on it before. Robbin would leave his door wide open.
205Exhibit #5 is a photograph taken by HRPS which shows the new locks for these bedroom doors.
(10) Re: Restraints in the Bedroom
206Bill testified that there were "soft Velcro restraints" in the bedroom. He bought them and it was something he and Charmaine tried during an intimate experience for love making. They mutually wanted to try it. Charmaine was not interested in it after they tried it and so they never did it again. (p. 15)
(11) Re: The Plan to Lock-up the Thermostat
207Bill testified that there were constant arguments he had with Robbin over the thermostat. (March 27/15 p. 20)
208In the summertime, Robbin would be cranking it down and Bill would have to bring the temperature up. In the winter, Robbin would run the temperature up and Bill would have to bring it back down. Bill testified that the costs in that house were escalating. When he lived there with his son Jesse the water and electricity bills were $220.00 every 60 days. Now they had tripled to $650.00.
209He and Charmaine had planned to go to Home Depot and buy a Plexiglas cover that you see in hotels to put over the thermostat.
Analysis
210The 3-pronged test set out in R. v. WD has been applied in assessing the credibility and the reliability of the testimony heard in this case.
211The Crown bears the high onus of proving the essential elements of each offence beyond a reasonable doubt. There is no onus on the defence to prove anything at all.
212At the end of the submissions on March 27/15, I registered a finding of guilt on count #3 – the July 8/14 assault on Robbin MacDonald.
213Robbin gave a consistent account of the incident. His account was not shaken in cross-examination.
214The account given by Robbin was supported by the only independent witness in this case, Ross Dion. Ross Dion was right there watching the entire altercation through the opening from the living room into the small kitchen. Ross had no issues with either Robbin or Bill. As noted above, Bill and Ross had no relationship with each other at all. Ross had moved into the townhouse just days before. Ross also had no relationship with Charmaine. She saw him for the first time in the house on July 3rd.
215Robbin and Bill gave diametrically opposed accounts of the incident. Bill's account seems to be the polar opposite of Robbin's.
216It is noted that much of Bill's account of the events was not put to Robbin or Ross for comment when they were being cross-examined. This lessens the weight that is attributable to almost all of Bill's account. Examples of this include the following:
(1) it was not put to Robbin or Ross that Robbin charged at Bill and came right into Bill's face before the physical altercation began;
(2) it was not put to Robbin or Ross that Bill used only one open hand to clear some space between himself and Robbin;
(3) it was not put to Robbin or Ross that Bill had a bottle of water in his left hand when the altercation began and when he pushed Robbin away;
(4) it was not put to Robbin or Ross that Bill ended up on the floor during the altercation in the kitchen;
(5) it was not put to Robbin or Ross that Bill appeared to have trouble breathing during the incident;
(6) it was not put to Robbin or Ross that Robbin was choking Bill.
217Other issues that Bill testified to were also not put to Robbin for his comment. Examples of this include the following:
(7) it was not put to Robbin that Charmaine left the house on June 28th because he had locked her out of the house and told her to clean the house on June 27th;
(8) it was not put to Robbin that he was to blame for Bill's son (Jesse) leaving the house;
(9) it was not put to Robbin that the reason for the locks on the fridge was because it had been leaking;
(10) it was not put to Robbin that he was responsible for the increasing electricity bills;
(11) it was not put to Robbin that he would tell Bill that Charmaine was mentally ill, bipolar, schizophrenic and psychotic;
(12) it was not put to Robbin that he told Bill that he was planning on staying in the house for another 6 months;
(13) it was not put to Robbin that he was in constant conflict with everyone;
(14) it was not put to Robbin that he blamed two little pussycats for deflating the tires on his bicycle.
218Bill's account of the events also contained internal inconsistencies. Examples of this include the following:
(1) just before the July 8th altercation with Robbin, he came up from the basement to get ice cream for himself and Charmaine; this later changed to coming up the stairs to get water for Charmaine; that also changed to coming up the stairs to clean up the kitchen; another version was that he come up to the kitchen because Charmaine told him that Robbin was packing up his pots and pans;
(2) the changing story of why the locks were on the fridge and freezer – to lock the food away when he fought with his wife or the new version of the old leaky fridge that required doors to be held together;
(3) the testimony that it was Robbin that frightened his wife away from the house for 5 days, yet Bill waited for 5 days to go and pick her up while Robbin stayed on as a tenant in the house;
(4) the testimony that things were getting worse day by day with Robbin, yet Bill lets Robbin bring the new guy Ross into the house at the end of June 2014 when Charmaine had allegedly fled;
(5) the testimony that Robbin had driven his son out of the house and from day one was trying to break up his marriage to Charmaine; Robbin was a tenant in the house. Bill decided who lived at that house. Robbin was not asked to leave that house until the physical assault on July 8th.
219Charmaine was called as a witness by the defence before Bill took the stand. This factor also adversely affects the weight to be given to his evidence as he had the benefit of hearing her testify first. Their versions of all the events appeared to be scripted and I infer that there has been some degree of collusion in the preparation of their testimony. They both went to great lengths to blame every single problem on Robbin and I find their evidence to be not credible.
220I conclude beyond a reasonable doubt that there was escalating conflict between Bill and Charmaine as testified to by Robbin. There was compelling evidence that in just days before the assault on Robbin, Bill had locked Charmaine out of the freezer/fridge on two occasions. I reject Bill's evidence that she always had access to the keys.
221Bill gave a statement to the police after his arrest that he would lock the fridge when he was arguing with his wife. Robbin testified that when Bill got really mad at Charmaine he would lock the fridge and freezer so she could not access any food. Charmaine agreed that she told the police that the freezer had been locked twice in the month of July. The last time was on July 6th. On Bill's own evidence, he was trying something new when he put the locks on the freezer/fridge. He stated that he was troubleshooting a faulty fridge. I find as a fact that he was trying to troubleshoot a faulty relationship with Charmaine by using extremely aggressive and controlling behaviour.
222I also accept Robbin's evidence that Bill would lock Charmaine out of the bedroom and, at times, out of the house. It was clear when the evidence at trial was looked at as a whole, Bill has a lock obsession. He had locked up the furnace room, the fridge/freezer and all the bedrooms. His plan to soon lock up the thermostat is another example of this extreme behaviour. It was Charmaine who did not like the Canadian cold. I find as a fact that the plan was now to lock Charmaine away from the thermostat.
223Bill's evidence that Robbin was the reason that Charmaine fled the house for 5 days defies common sense. I find as a fact that it was because of Bill's frightening behaviour toward Charmaine that she fled the house. That is why Bill waited days to get her. She had run away from him.
224There was a clear power imbalance in the relationship between Bill and Charmaine. She is almost 30 years younger than him. She was a University student when she met him and has never had any work experience. Her status in Canada was as a visitor only. She has no family in Canada and her support network is in the Philippines. It appears that any support she has in Canada is related to Bill's work friends and a few Filipino friends she has in the GTA area. She has no car to drive and is totally financially dependent on Bill.
225Charmaine did not give a written statement to the police in this case. I conclude that she has a clear motive to fabricate her evidence to support Bill in any way that she can. This is not only because she is his wife and wants to remain his wife. This is also because she would appear to have very few other options given her vulnerabilities in this imbalanced relationship.
Re: Utter Death Threat Between the 1st of June 2014 and the 30th of June, 2014
226At trial, Robbin could not remember why he said this happened on June 28th when he gave his statement to the police. He knows that it happened close in time to the garbage bag assault and it was an early morning and the fighting between Bill and Charmaine from their bedroom woke him up.
227Robbin was consistent in his testimony that he heard Bill scream, "I'll fucking kill you – I'll choke the life out of you". When he saw Charmaine shortly after that downstairs, she was crying.
228Charmaine denies any such thing. Bill has produced Flight Schedules which purport to show that he was on an overnight flight to Edmonton on June 27th and he did not return to the Oakville townhouse until approximately midnight on June 28th and Charmaine was at Maria's house.
229If these Flight Schedules are accurate, then the threat could not have been made on June 28th. However, the unverified Flight Schedules show many days in June when Bill and Charmaine would have been in the house in the morning. It is noted that from June 8th through to June 13th, Bill's Schedule records that he was sick. No questions were asked about this and I do not know what kind of sickness this relates to.
230From June 14 through to June 22 there is nothing noted on the Flight Schedule at all. The same is true for June 26th.
231The question becomes if I believe beyond a reasonable doubt that Bill uttered this death threat to Charmaine at the end of June 2014 when, according to Robbin, things between the two of them were escalating. Because I accept Robbin's evidence as accurate, reliable and true in this regard, I am satisfied that one early morning in the month of June 2014 this death threat was uttered.
232Accordingly a finding of guilt is registered on Count #2.
Re: June 29th/14 'Garbage Bag Assault'
233Robbin testified that this also happened in the morning when he woke up to get his protein shake in the kitchen. His testimony about this extremely odd and concerning incident was consistent throughout.
234Bill's Flight Schedule would put him in the house on the morning of Sunday June 29th. His check-in time at the airport was 12:45 that day.
235Bill testified that after he got up and before he left for the airport, he went to church. Again according to Bill and Charmaine, she was staying at Maria's place.
236I reject both of their testimony in this regard for the same reasons I have noted above. I find as accurate, reliable and true, that on that day Robbin saw Charmaine on the front stoop of the house with a garbage bag over her. Bill told Robbin not to touch the garbage. I accept Robbin's evidence that Bill hit the top of the bag with his hand and left the room.
237I find as a fact that this extremely demeaning and frightening act is what drove Charmaine to run away from the house. She was not there when Ross moved in on either June 30th or July 1st.
238I am satisfied beyond a reasonable doubt that this assault occurred and a finding of guilt is registered on Count #1.
239It is not necessary for me to get into the bedroom restraints issue, but it is strange that Bill would acknowledge having told Robbin about using them with Charmaine in their private bedroom. It is also not necessary for me to get into Robbin's testosterone injections either, except to say, Bill's testimony that he would watch his roommate inject himself in the buttocks was strange. Clearly these 2 men had been very close friends in the recent past and much information was shared between them.
240Sentencing has already been adjourned to June 12, 2015 in the Milton Courthouse, courtroom #15 at 10:00 a.m. and a Pre-Sentence Report has already been ordered.
NOTE
A copy of these reasons has been prepared for the Halton Regional Police Service.
Air Canada may consider a mental health screening appropriate in these circumstances.
Released: April 27, 2015
Signed: "Justice L.M. BALDWIN"
1Reference was made in Bill's testimony that two of his sons had attended his marriage to Charmaine in the Philippines. There was no other evidence about how many children Bill has.
2There was no verification by Air Canada that this was his completed Flight Schedule.
