R. v. Heibein

Citation: 2012 ONCJ 742

Information No.: 11-460

Court and Parties

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

HAROLD HEIBEIN

PROCEEDINGS AT TRIAL

BEFORE THE HONOURABLE JUSTICE G. J. BROPHY

on June 15, 2012 at WALKERTON, Ontario

Appearances

B. Linley – Counsel for the Crown

B. Barrie – Counsel for H. Heibein

Reasons for Judgment

Brophy, J. (Orally)

Background and Charges

This is a matter involving Harold Heibein. He has been charged with two offences, both of them under Section 267(b) of the Criminal Code of Canada in that it is alleged that on the 18th of June, 2011, in firstly the Town of Hanover and secondly in the Township of Normandy in the Municipality of West Grey, he committed an assault on a Wanda Mason causing bodily harm to her.

The events that are alleged by the Crown follow quickly, one upon the other, and the facts are not in and of themselves distant in time or in nature. Before I review those facts and discuss the issue in the case I will simply emphasize perhaps for the purpose of Mr. Heibein and the other persons in the courtroom, basic principles.

Fundamental Legal Principles

The core principle is that everyone charged with an offence in Canada is presumed to be innocent unless and until the Crown has proven that person's guilt beyond a reasonable doubt and the presumption of innocence means that Mr. Heibein starts the trial with a clean slate, the presumption stays with him throughout the case and it is only defeated if and when the Crown counsel satisfies the court beyond a reasonable doubt that Mr. Heibein is guilty of the crimes charged.

There's a burden of proof and there's a principle of reasonable doubt; the burden of proof that the accused individual does not have to prove anything, the burden is on the Crown to prove the case from start to finish and with reference to reasonable doubt, the Crown has to satisfy the court that the offence has been made out beyond a reasonable doubt. That is to say no reasonable doubt has arisen in the case as a result of evidence that could be called by either side.

The Crown's Case

Now, with reference to this particular case, the charges are basically dependent upon the evidence of Wanda Mason. Wanda Mason is or at the time was the spouse of Harold Heibein. Harold Heibein was visiting Hanover where apparently he grew up or at least spent his high school years and was attending a high school reunion. Mr. Heibein is a 51 year old man, so this is a reunion that goes back in time.

His spouse, Wanda Mason, accompanied him on the 17th of June, 2011 to that reunion weekend although they only spent literally Friday evening and parts of Saturday morning in the Hanover area.

The allegation in a nutshell is that on that evening at the Queen's Bush Inn in downtown Hanover there was a dispute between them and that Ms Mason says that Mr. Heibein assaulted her twice. Once in the Town of Hanover pulling her out of the car and punching and kicking her and secondly on the highway, I'll call it, between Hanover and Neustadt where he did essentially the same thing and then abandoned her in a ditch and left for London where they lived. I will review the facts in a little more detail in a moment but that is the essential nature of the case.

The issues are simply ones of fact finding and of course as Mr. Barrie has mentioned in his submissions the court has to consider the W.D. principles which I'll avert to in a moment.

Relationship History

The facts in somewhat more detail are these; Mr. and Ms Heibein and Mason met on December the 26th 2009. Both of them had had prior relationships. Mr. Heibein as indicated is 51. I don't have the age of Ms Mason in front of me but she would be past 40 I'm sure. They met, they quickly struck up a relationship and they began living together in January of 2010. They then got married I believe in June of 2010 and they continued living together but there was a separation in January through to March of 2011. They reconciled in some fashion in April and May and ultimately attended this high school reunion I've spoken about already.

The relationship was a quick starting relationship. It had frailties associated with it. Mr. Heibein's evidence is that Ms Mason had a drinking problem. She was a steady drinker, she was a binge drinker. She was a bit of both and when she was binge drinking she wouldn't sleep. She was also, according to Mr. Heibein, coarse in her language and her demeanour and all of these things were troublesome but particularly the drinking. Interestingly Ms Mason does not assert that Mr. Heibein was a particularly troublesome drinker. She says he used foul language with her and she, although she didn't phrase it this way, she gave as good as she got in that vein.

With reference to the relationship it was tumultuous to say the least. Mr. Heibein says that he tried to maintain a calm demeanour throughout. Matters deteriorated after the marriage in 2010 and by January of 2011 Mr. Heibein who's a long-haul trucker and is constantly to the West coast generally, would begin receiving text messages from Ms Mason. The text messages that had been presented in court had been sent in January of 2011 and they were of a threatening, insulting and taunting nature.

Mr. Heibein's evidence is that he was concerned about them, was fearful to some extent; actually he says he called the London Police Service at one point. But whatever that amounted to, it did not stop him from some reconciliation with Ms Mason as I understand it, towards the end of March or in March sometime in 2011. They were separated for approximately two months.

In May, on another trip, Ms Mason sent Mr. Heibein another text message which has been presented in court and I assume of course there were other text messages throughout the relationship, that's a very common way of communication these days between all sorts of people in all sorts of situations but the one that was presented to the court showed a phone photo picture of Ms Mason performing oral sex on somebody and it presumably was sent to Mr. Heibein for some purpose that Ms Mason intended which is impossible to completely understand.

Ms Mason in her evidence says that that the photo that was sent in May and the earlier text messages that have been filed with the court which contain various statements about sexual relations with other people were somehow engendered by Mr. Heibein's predilections. Mr. Heibein denies this absolutely and says this was not at his instigation in any way, shape or form.

Events of June 17-18, 2011

That is the background and the context in which the events of June the 17th and 18th occurred and I'll have some comments in a moment about what to make of those background facts but suffice it to say that Mr. Heibein decided to go to his high school reunion, he spoke to Ms Mason about this and they, she agreed to go and they set off at about 4:30 in the afternoon on Friday June the 17th 2011. They got to Neustadt at some point and they stopped at a friend's. First of all at Neustadt I believe they stopped at a roller rink or a ice hockey rink where there was supposed to be some roller skating, something of that nature, that wasn't on because they were too early. They went through Neustadt but Mr. Heibein noted a friend's residence was occupied. They stopped, they visited for 45 minutes to an hour and then they proceeded on to Hanover.

Mr. Heibein's evidence is that Ms Mason was drinking in his vehicle on the way up from London. He says that she had four to five beers, Coors Light, the ubiquitous Coors Light, and when they stopped at the friend's in Neustadt Mr. Heibein had a beer and I understand from his evidence Ms Mason had a beer. Ms Mason's evidence was somewhat different in that she says Mr. Heibein was drinking in the vehicle and had three or four beers or some approximation of that, and had a couple of beers at the friend's place.

In any event the evidence was contradictory but there was some drinking in the motor vehicle by at least one person and there was some drinking before they got to Hanover.

At the Queen's Bush Inn

In Hanover, somewhere between seven-thirty and eight o'clock roughly, again nobody's actually tracking this and making notes as to times, they got to the Queen's Bush Inn/Hotel and they went in. In that establishment there were many people that Mr. Heibein and other persons had gone to school with. As I understand it, although I'm inferring this fact, this was one of the meeting places for Friday evening for this high school reunion.

In that establishment Mr. Heibein and Ms Mason went through the bar area I gather, and then out on to the patio and when they got to the patio they particularly met up with a Wanda Litt and a Nancy Rutherford and Mr. Heibein struck up conversations with those two individuals, particularly Nancy Litt.

Ms Mason was there, was introduced, got some money from Mr. Heibein and went back into the bar. According to Mr. Heibein she didn't come back for a considerable period of time. It's uncertain what exactly she was doing. She says in the course of her evidence that she was socializing, mixing with people and was drinking beer. At this point Mr. Heibein was drinking more beer, there's varying estimates as to how much he had. Nothing really turns on that other than it wasn't a single beer it was something more than that. The estimates are maybe as much as four or five or as little as two or three.

The facts are that Mr. Heibein was drinking but in the context of the evening and in the nature of the event, not in gross amount. Having said that, he was continuing his conversations, particularly with Ms Litt and I'll speak more about that in just a moment and Ms Mason came back into the room – or the patio that is to say – approached Mr. Heibein about some more money for beer. There was some mild resistance. The money was handed over she went back and bought some more beer.

Ms Mason is also described as mixing with other people and in the evidence, generally, other than that of Ms Mason, it's suggested that she was being loud, perhaps a little bit obnoxious, a little more aggressive than she needed to be; flirting with a fellow by the name of Ed Dosman, trying to approach a group of younger men, four or five in their mid-twenties who would have nothing to do with her – and things of that nature.

The point of all that is simply that Ms Mason who no doubt felt out of sorts because this wasn't a group of people that she knew and perhaps she wasn't received with great, the greatest of friendliness, never-the-less the tenor of the evidence is that she was being loud and was becoming increasingly intoxicated.

Ms. Mason's Account of Events

The evidence in then a more particular way becomes important to follow because Ms Mason's evidence is that when it was time to leave the bar, which was closing time which I understand to be 1:30 in the morning, her understanding was that they were going to effectively camp in Mr. Heibein's Envoy in a local park area. Mr. Heibein says there was a different plan. He was planning on spending the evening or the night rather at Tony Steffler's an old friend of his out near the Mulock Road which would be east of Hanover and a bit.

In any event Ms Mason thought they were going to stay in some park and the vehicle was obviously large enough to accommodate some form of camping if that's what they wanted to do. Her evidence is they got into the vehicle, they drove to the park area, they were there about ten minutes. There were a number of text messages that arrived and were sent. She questioned who they were from. She thought they were from the ladies in the bar that Mr. Heibein had been speaking to and an argument broke out about that. Somehow in that course of that argument it was decided that they were going to go back to London. This is Ms Mason's evidence.

So, the vehicle starts up and they leave and about ten minutes later, Ms Mason says Mr. Heibein pulls over with no provocation on her part and a fight breaks out in that Mr. Heibein gets out of the vehicle, walks around to the passenger side, opens the door, drags her out by her hair, throws her down onto the grass and beats her with his fists and his feet.

In the course of that happening she says she lost her cell phone which she says must have fallen out of her pocket. At the end of the beating she gets up, gets back into the car, she recognizes that she has lost her cell phone, she asks, oddly enough, Mr. Heibein then to look for the cell phone, not withstanding that he is supposed to be in a rage having just beaten her significantly.

He then apparently, and this is the evidence of Ms Mason, tries to find the cell phone by looking around in the general area where this dispute took place, or this beating took place. He can't find it. He does find the back of it as I understand it or some part associated with the cell phone and he gives that to her.

According to Ms Mason he then gets back in the driver's seat and off they go. Now they get out of Hanover and they are proceeding – and Ms Mason in fairness to her, doesn't know the area so she's somewhat at sea in terms of directions and what roads are what – but as it turns out they're now on the road to Neustadt or the highway they had come up on and significantly south of Hanover after the big bends in the road, Ms Mason's evidence is that again Mr. Heibein for whatever reason loses is, pulls over to the side of the road, gets out, goes around, pulls her out of the vehicle in the same manner, by her hair, throws her down to the ground, there's a ditch there, and he again beats her with his fists and his boots.

She asks for her purse, he throws her purse at her, he gets back in the vehicle and dives off leaving her in the ditch.

That's essentially the story of Ms Mason and the evidence does not give a good reason why Mr. Heibein would act in this manner. Not that she has to find a reason, maybe Mr. Heibein just lost it, but having said that, there's no specific ignition point or flammable point that caused, in her evidence, Mr. Heibein to behave in this manner. She can only point to, if anything, the relationship that Mr. Heibein had been developing with, in her words, the ladies in the bar, and that somehow this was something that provoked him to behave in this manner.

Aftermath and Medical Evidence

Ms Mason's evidence is that she picks herself up and I suppose dusts herself off, and then finds a farm house to go to. She attends at the residence of James Price and his spouse, a senior couple. She goes to their door, she gets their attention, they invite her in, there are telephone calls placed, curiously enough, firstly to family members of Ms Mason before the police are called. Mr. Price's evidence is he thinks he called the police but that maybe not completely accurate. I think there's evidence that he dials 911 about ten or fifteen minutes after she gets there. He notes that she had been drinking but he didn't think she was drunk. Although I note that Mr. Price is a self-confessed non-drinker or at least he isn't a drinking man I think was the question that was put to him, he said no. Mr. Price says that he didn't think she was drunk. He calls the police.

Officer Darren Storey from the Hanover Police Service attends. He gets there shortly after – sorry – he gets there at 3:55 A.M. So we're now about two and a half hours after the bar had been closed and Officer Storey comes in, he has a brief conversation with Ms Mason and he takes her to the Hanover Hospital. They are in the Hanover Hospital for about an hour. Ms Mason is seen by a doctor and then Officer Storey takes her to the Hanover Police station and a video statement is taken.

Photographs are also taken. Photographs are important because they are objective, real evidence of the circumstances of Ms Mason. It is clear that Ms Mason had come to some harm. She had a black left eye. She had abrasions on her face. She had a small cut on her forehead and other minor marks on her face. There are no other significant injuries that are observable. It is noteworthy that in her evidence she says she received no particularized treatment at the Hanover Hospital other than to be given some Tylenol pain medication.

Ms Mason's evidence is that subsequently she gets back to London and in terms of medical intervention she was asked by the London Police to go to a hospital. She did that, she had a CAT scan I believe although I'm not sure of the particular procedure that was followed and it revealed nothing and she received no particular treatment from the hospital to deal with any of her injuries.

Interestingly enough Mr. Price – and this is the frailty of all witnesses – he says it was her right eye that was black and in fact it was her left eye. But that's neither here nor there.

The – another interesting thing about Mr. Price's evidence before I leave him so I don't overlook it – is a curious thing happened in cross-examination involving Mr. Price because Mr. Price when I say senior man, he's probably not much older than I am, having said that he was asked if he talked to somebody out in the hallway before he gave his evidence and he said he did and confessed very quickly that he was promoting the guilt of Mr. Heibein before of course he had heard any of the evidence and knew the full story. It's an interesting observation about people's assumptions about cases.

In any event that's Ms Mason's description of what happened in its essential terms.

Mr. Heibein's Account of Events

Mr. Heibein's evidence is markedly different. Mr. Heibein testified that they did attend the high school reunion as I've described. He says that Ms Mason was drinking in the car on the way up. He says he didn't have anything to drink until he got to his friend's place in Neustadt. He gets, they get to the bar, he goes out onto the patio, they both go out onto the patio, there's introductions made and all of the things I've already described took place in general terms and then they left the bar at about one-thirty in the morning.

His evidence is that as he was walking to his vehicle, which was parked some sixty feet approximately, away from the bar area, although the descriptions I heard from other people would suggest it should be more but it's not for me to say. He says he sent a text to Ms Wanda Litt whom he had met in the bar, whom he had known a long time ago but hadn't seen for many years, and he said he sent that to make sure that he had gotten the right reference point and that the message would go to the right place.

He says that he did this on his way to the vehicle. He says they then got into the vehicle. He describes Ms Mason as being intoxicated. Other people in the bar, specifically Ms Litt and Ms Rutherford say she was intoxicated as well. They get into the vehicle. He is behind the wheel he's starting the vehicle up and I think they begin to move the vehicle. He's got to go out of the parking lot, he's got to make a left onto what I believe is 9th Street and as he makes that left and he's, in his evidence, about 400 feet away from the Queen's Bush Inn, he receives a text message. His description of what happens next is that Ms Mason wants to know who the text message is from, she reaches out, she grabs at his phone, the phone is knocked out of his hands, the phone falls down to the console area between the two bucket seats. He says that Ms Mason then proceeds to strike him and attack him with her cell phone, that is to say, in her right hand, striking him on the right side of his face.

At some point in this scramble the cell phone flies out of the hands of Ms Mason and out the open windows which have been lowered to clear the air in the vehicle.

Mr. Heibein's evidence is that he is in the process of pulling over because he was concerned about the distraction of this assault on him and he might run into something so he's trying to bring his vehicle to a halt. He says he had his right arm up to block the blows of Ms Mason but he did not strike her in any fashion.

The vehicle comes to a halt. He says that Ms Mason now wants to recover her cell phone, she opens the door and she literally falls out the vehicle and hits her face on the cement below the vehicle. He gets out, goes around, he says that he assists her getting back into the vehicle, uttering appropriate foul language as to why she's doing what she's doing – or asking her effectively – and she then asks him to search for the cell phone which is consistent with her story in the first instance and he gets out a pocket flash light he has attached to his key chain, and he's searching on the grass for the cell phone.

He can't find it. He does find the back of the cell phone, he gives it to her, he gets back in the driver's seat and at this point the decision was made, I gather from his evidence which may be consistent with Ms Mason's evidence, they decide to go home and he says, I'll take you home. So out they go, they do some back roads in Hanover to get onto Neustadt road and they proceed south.

As I've indicated already near the Price farm there's another explosion. Mr. Heibein's evidence is that Ms Mason attacks him again. Now they are travelling at about 80 or 90 kilometres per hour, the risks are higher. Mr. Heibein's evidence is that there is an oncoming vehicle, he's getting concerned about going off the road or going into the middle of the road. He's concerned about a significant accident. He has his right arm up and now not just holding that right arm up he's also pushing his right arm out effectively in hitting motion to his right, I'll call it a swatting motion so that it's better described.

He says he made contact but he doesn't know where he made contact. He ultimately gets the vehicle under control, gets it pulled over to the side of the road and by then he says he's had enough. He goes around to the passenger side, grabs Ms Mason by her wrist and her shoulder and pulls her out of the vehicle and she is now standing on the side of the road.

He then gets her purse and her flip-flops which were a second pair of shoes and throws them out of the vehicle, shuts the passenger door. While all of this is going on he observes that Ms Mason has now fallen into the ditch. This is not a ditch as could perhaps be described as a five foot drainage ditch or something of that nature it's, as I understand it a relatively shallow ditch, but a ditch none-the-less. He gets back in his vehicle and he drives off.

Mr. Heibein says that he did not hit her, he never punched her. He never kicked her. He never grabbed her hair in any of the two incidents that have been described. He says that at best he, in town, held up his arm to prevent her from hitting him. At best or worst perhaps, when they were on the Neustadt highway he held up his right arm to block her blows and he also thrust out at her with his right arm to subdue her in some sense. The only other time he says he touched her is when he helped her back into the car in town and when he grabbed her shoulder and wrist and pulled her out of the car when they were out in the country. That's all he says he did.

Corroborating Witness Evidence

Now, that is the evidence as I understand it and the principle that of course is in play in this matter is first of all the assessing of the credibility of the witnesses and then secondly the application of W.D.

The assessment of the credibility of the witnesses is always a difficult task because it is fully dependent upon they way in which the witnesses present themselves in court. So, demeanour plays a role but a relatively minor role in assessing credibility and further, the evidence has to be assessed in terms of it probabilities. That is to say, is the story of a witness harmonious with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

In terms of evidence, if I can just return to the evidence briefly, I should mention of course that I have received evidence from Wanda Litt and Nancy Rutherford and their evidence plays a role in assessing the other evidence of the two main persons, that is to say Ms Mason and Mr. Heibein. It's also important to note the limited weight or the significance of the evidence of Nancy Rutherford because Ms Rutherford was not a party to any of the particular incidents in any way shape or form, directly or indirectly. At best all she can do is say that when she was at the Queen's Bush Inn on the patio she had opportunity to observe Wanda Mason and Mr. Heibein and her evidence is consistent with what I've already indicated, that is to say that Ms Mason was becoming intoxicated if not intoxicated and she was loud and difficult.

She does say, perhaps more usefully, that Mr. Heibein was, as she has always known him to be, and she doesn't know him well, clearly, but as she has known him to be, was relatively calm and mild mannered and never gave any indication during the events at the Queen's Bush that he was losing his temper with Ms Mason or anything of that nature.

Wanda Litt's evidence is a little more complicated and it is for two reasons; the first reason is because subsequent to these events, about two weeks, although in Mr. Heibein's evidence one week after the events, they struck up a friendship which developed into a relationship and they see each other on a fairly regular basis now. This is important to understand. Although they knew each other as young people - and I was trying to do the math and somebody said they've known each other for 40 years - which means they must have met in grade seven. That may be true, but in any event they did not have any personal relationship prior to this event and that assists in part in terms of assessing the weight to be given to the evidence of Mr. Heibein and Ms Litt however Ms Litt's evidence does speak to the same things as Ms Rutherford's evidence in terms of the observations made in the bar of both Ms Mason and Mr. Heibein.

And then the second important and complicating feature of Ms Litt's evidence is that, she says that indeed she left the Queen's Bush Inn. Her evidence is that she left at approximately the same time as Mr. Heibein and Ms Mason. That she went to her car which was closer to the Queen's Bush Inn. That she got in her car and drove home. An odd thing is that she was only two to three minutes away, a block and a bit, and it begs the question why she took the car to the Queen's Bush Inn, but there may be mobility issues I don't know about or there could be other reasons. In any event, she drove home. She is only two or three minutes on the road. She says she probably took longer backing out of the parking lot than it actually took to get home, and she's home and she receives a text message from Mr. Heibein.

So, in a matter of minutes, but whether it was two minutes, four minutes, six minutes, eight minute, it's impossible to really know, there was a text message that arrived. She says in her evidence, her evidence is a little confusing on this point – in fairness to the crown on the cross-examination, she says that – and what I take from her evidence upon reviewing my notes – is that she then texted back reasonably soon after that first text came in, by that I mean to say she said in her evidence she was putting her pyjamas on so there was some delay, it wasn't an immediate response but it wasn't a long time between receiving the text and responding to it.

She then says however, clearly, that about a half hour later she then texted Mr. Heibein again to make some inquiries about the whereabouts of her friend, Nancy Rutherford. Why this would be necessary I don't know, but people send all kinds of texts that they don't have to send. In any event that was the third text that was sent. The first two are the important ones because of the connection between Mr. Heibein's statement about sending the text as he's walking to his vehicle and getting a text back as he's proceeding to drive his vehicle. Although the time line is tight, it is not impossible that it coordinates with what Ms Litt said and that's an important consideration in this matter.

Credibility Analysis

Now, having gone back to that evidence briefly I'll come back to the general principles and the assessment of credibility.

It is important and vital that this court of course assess the credibility of the individuals without reference to stereotypes and understanding that domestic abuse, and we'll call this a form of domestic abuse, can occur in many variations and is not a function of whether somebody is a difficult personality or a mild personality. In other words, people respond to things in a host of different ways and it is important for this court to recognize that although Ms Mason might be a problematic individual and she might have a drinking problem which she conceded to a certain extent in her cross-examination, and might behave in ways that were of a taunting nature and a threatening nature towards Mr. Heibein, this does not in any way, shape or form, mean that her evidence does not have value and shouldn't be considered on its own and be reflected upon in the circumstances of the day.

I appreciate the defence has tried to present that there is some animus on the part of Ms Mason and certainly Ms Mason had some issues with Mr. Heibein. The relationship they had was a problematic one from the beginning. Marriage late in life – I shouldn't say late in life but later on in life – after what I take to be failed relationships, living together very quickly after meeting in a bar, marrying in six months and then six months later separating and then roughly four months after that finding themselves into this dust up, it seems to me that this relationship was perhaps toxic from the get-go. Why the parties decided to form the bond between them is something of a mystery, but never the less, the court has to take into consideration that on some level that really doesn't matter because Ms Mason is entitled to be treated with dignity and protection just as we all are at all points in time.

Now, having said that, if I am to preface these remarks, it is clear in my view that Ms Mason has some credibility issues and I point to the vast difference between what she describes as the assault and the nature of the injuries that had been suffered.

In my experience when an assault literally does take place in the way in which she describes it, a flurry of punches to the face by a male person against a female person particularly and with kicks to the back and head by somebody who is wearing motor cycle boots, which although they aren't steel-toed boots, never the less are of substance, for Ms Mason then to have had injuries that effectively needed no medical attention other than Tylenol, for no injuries to her body other than what I saw by way of a black eye and the scrapes to her face, it seems to me that there is some discordance between her evidence and what in fact happened.

The photographs of course are good objective evidence of what occurred but never the less we're left with this discrepancy. I also have to note that Ms Mason described herself as having some drinking issues, that was admitted in cross-examination, and the events of the evening certainly depicted her as consuming a significant amount of alcohol and I accept from that perspective that she was intoxicated.

I also note that when she got to Mr. Price's residence her concern wasn't to call the police but rather was to call her ex-partner who is the father of her daughter and perhaps other family members as well and so it wasn't apparent in the way she was responding to the event that she thought a criminal act had occurred, although it is again important to recognize that people respond to these matters in varying ways.

When I look at the evidence of Mr. Heibein, although demeanour never plays a large role in the assessment of credibility it is clear that Mr. Heibein in the witness stand presented as a calm individual. He's been described as a calm individual by both Ms Rutherford and Ms Litt, recognizing that Ms Litt in particular has some reasons to support Mr. Heibein. And his, the description of Mr. Heibein by Ms Mason is also revealing in that she says that he never struck her before and if I understand the evidence correctly, did not behave in a threatening manner to her before which is very interesting given the toxicity of the relationship between them and the way in which Ms Mason was projecting herself to Mr. Heibein through text messages and other ways.

This then tells me that Mr. Heibein is, in a general sense, a calm individual. Which then begs the question of, well then how do I assess his evidence in light of the events that are alleged to have occurred?

I take into consideration of course that to some degree, Mr. Heibein's description of these two eruptions in his vehicle are perhaps the kinds of descriptions a criminal court would hear regularly or with some frequency from individuals who are trying to excuse their criminal behaviour. In other words, they're trying to say it was somebody else's fault and there's nobody else to testify about that, so how do we go? So I take into consideration of course that the easiest thing in the world for Mr. Heibein is to say it was Ms Mason who went crazy, not me. Having said that, in assessing the credibility of Mr. Heibein and contrasting that with the credibility of Ms Mason, I have to ask myself, why did Mr. Heibein erupt not once but twice in the manner that has been described by Ms Mason?

The reason I ask that question is, if he wanted to rid himself of the wife that was no longer meeting his needs and if he wanted to get on with a new life however that might unfold, why didn't he just simply drive home to London and park the vehicle, go in and get his stuff and leave? There's no need for him to react this way and it is not consistent with what has been described in his behaviour otherwise.

And most importantly, there's no particular reason why Mr. Heibein would have acted the way he did. There's nothing particular that happened on this night that would have triggered a violent reaction on his part not once but twice. He had been provoked many times previously and he hadn't responded in that manner and there's no evidence before me that he's ever responded in this manner before, so it seems to me that Mr. Heibein is a credible witness in a general sense, given the context of all and what I've said about his character and his reactions.

Application of the W.D. Test

So, having said that, I then have to turn to the W.D. considerations and I direct myself in accordance in the dicta set out by Mr. Justice Corey in the Supreme Court of Canada decision in Regina v. W.D., [1991] 63 C.C.C. (3d) 397 and particularly the words at page 409, which are as follows, and I quote:

First, if you believe the evidence of the accused obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you're left in reasonable doubt by it you must acquit. Thirdly, even if you're not left in doubt by the evidence of the accused you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Dealing with the W.D. formulation, first I ask myself do I believe the evidence of Mr. Heibein? For the reasons I've already expressed, Mr. Heibein is a reasonably credible witness but I remain uncertain about his evidence in a sense of having firm faith in it for two reasons. One is that no matter how you look at it, the events are bizarre and unfortunately there are too many situations where abusive individuals create a story to cover up their behaviour and I can't say that that escapes me in this – or is not a possibility in this situation.

Secondly, I'm a little concerned with the timelines associated with these text messages and what was said to who and when through text messages. I should point out just in passing so I have this as part of the reasons, it's also interesting to note as Mr. Barrie pointed out in his argument, the cell phone was actually found in a different location than where the tussle took place. As I understand it the first in town tussle took place on a patch of grass off a side walk, and yet the cell phone is found some, a number of feet away in a driveway which is consistent with what Mr. Heibein indicated. The cell phone flying out the window as they're still, as they're just pulling to a halt.

Having said that, and returning the analysis, I'm not absolutely convinced that everything that Mr. Heibein has told me is completely true. However, his testimony and other evidence that I've spoken about in these reasons absolutely leaves me in a reasonable doubt. I am just simply not satisfied that the Crown has proven the case because Mr. Heibein's explanation could reasonably be true and on that basis it seems to me, and dealing with the second branch of the W.D. decision, there has to be an acquittal and both charges against Mr. Heibein are therefore dismissed.

Conclusion

That concludes my reasons and I wish to thank counsel for their very good presentations in this case. Thank you.

Certification

FORM 2 – CERTIFICATION OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Lorelei Bonham, certify that this document is a true and accurate transcript of the recording of R. v. Harold HEIBEIN, in the Ontario Court of Justice held at Walkerton, Ontario, June 15, 2012, taken from Digital Recording Number 0311-207-CR1-20120615-094627, which has been certified in Form 1.

FORM 1 – CERTIFICATE OF RECORDING (SUBSECTION 5(1))

Evidence Act

I, Lorelei Bonham, certify that Recording Number 0311-207-CR1-20120615-094627 is the recording(s) of the evidence and proceedings in the Ontario Court of Justice, held at 207 – Cayley Street, Walkerton, Ontario on Friday, June 15, 2012, and that I was in charge of the sound recording device during those proceedings.