Ontario Court of Justice

Date: 2015-04-27

Court File No.: Halton 1991/14 and 2031/14

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

[1] William 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.

[2] The Crown proceeded summarily.

Background

[3] The 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.

[4] He has been married three times and has children from his past marriages. [1]

[5] He 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.

[6] On 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.

[7] Bill was living in a townhouse owned by his parents at 3350 Grand Ravine Drive Unit #33 in Oakville.

[8] Robbin 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.

[9] Robbin 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.

[10] Ross 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.

[11] The 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.

[12] Robbin 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'.

[13] Other 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.

[14] At 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

[15] When 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.

[16] After Bill married Charmaine, there were issues between Bill, Charmaine and Jesse, but there were no issues between himself and Bill.

[17] Sometime after Charmaine came to Canada on a Visitor's Visa in January of 2014, Jesse moved out.

[18] Just days before the July 8th, 2014 assault, Ross Dion moved in as a tenant in the house. The townhouse had 3 upstairs bedrooms.

[19] On Tuesday July 8th, 2014, Robbin and Ross had been out of the house doing things for school.

[20] They returned to the house in the afternoon. Bill and Charmaine were in the house.

[21] When 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.

[22] Robbin 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.

[23] Bill 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)].

[24] Robbin 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'.

[25] Robbin was looking into the cupboard that faces the living room. His back was to Ross at the time.

[26] Then 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.

[27] Bill 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.

[28] Robbin testified that he entered the living room and called 911 on his cell phone. The police arrived 5 to 10 minutes later.

[29] In cross-examination, Robbin testified that he has never initiated a physical fight with anybody.

[30] He denied that any of his prescribed medications makes him aggressive. (Transcript March 4, 2015 pp. 45, 65)

[31] Robbin 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.

[32] Robbin 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

[33] Robbin testified that right after the incident he had to support his arms because they were hurting.

[34] In 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.

[35] He lost a lot of his linguistic skills and had problems with his speech. It took almost a year to get his functioning back.

[36] Subsequent 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.

[37] After 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.

[38] These 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.

[39] Robbin 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

[40] Robbin testified that there were two fridges in the kitchen. One was for his use, (and then Ross), and one for Bill and Charmaine.

[41] When 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)

[42] He 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.

[43] Robbin 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.

[44] Robbin 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.

[45] Sometimes 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.

[46] In 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)

[47] When Charmaine ran away from the house she would be gone for four or five days at a time. (p. 79)

[48] Robbin 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.

[49] The 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

[50] This was a Sunday at approximately 7:00 a.m. (p. 93)

[51] Robbin 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.

[52] Bill told him not to touch the garbage at the bottom of the stairs.

[53] Robbin looked downstairs and saw Charmaine sitting down on the floor covered by a garbage bag. Her feet were sticking out of the bag.

[54] Bill said "don't touch her, she's garbage, that's where she belongs." (Transcript March4/15 p. 31) Bill said it matter-of-factly.

[55] Robbin testified that when things got bad between Bill and Charmaine, Bill talked to him so that Charmaine could hear.

[56] Bill went down and slapped the top of the garbage bag with his hand.

[57] As 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

[58] It happened in the morning. The evidence varied on whether this occurred at approximately 7:00 a.m. or 9:00 a.m.

[59] Robbin had been asleep in his upstairs bedroom. Bill and Charmaine were in their bedroom.

[60] Robbin 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)

[61] Robbin heard Bill scream "I'll fucking kill you – I'll choke the life out of you". (p. 34)

[62] Afterward, 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.

[63] In cross-examination, Robbin testified that after he heard Bill threaten Charmaine that day he asked her if she was okay because she was crying.

[64] When 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

[65] Robbin 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)

[66] One 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.

[67] In 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.

[68] Charmaine never asked him to call 911. He did hear Charmaine threaten Bill that she would call 911. (p. 86)

Testimony of Officer Andrew Short

[69] He 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.

[70] He observed the 'apparatus' on the fridge when he was in the house.

[71] After 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

[72] She has been an officer with the HRPS since August of 2012.

[73] She was dispatched at 11:12 p.m. and arrived on scene at 11:20 p.m.

[74] She 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.

[75] After 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

[76] Ross was re-training at Ryerson University in the summer of 2014.

[77] As 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.

[78] On 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.

[79] When he got back, Robbin was packing his stuff because Bill had moved some of his things when they were gone from the house.

[80] Robbin 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.'

[81] Bill started to walk to the front door. He turned around and charged at Robbin. Robbin's glasses flew off of his face.

[82] Robbin defended himself by putting Bill in a headlock.

[83] About 10 to 15 seconds later, Bill pushed Robbin back into the (glass patio) doors and he started hitting him in the groin.

[84] Robbin never struck Bill.

[85] Charmaine came in and said call the cops.

[86] In 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.

[87] Ross testified that the posts depicted in Photo Exhibits #2(a) through (d) were not obstructing his view.

[88] He 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.

[89] Before 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.

[90] The physical incident started when Bill used two hands to push Robbin's face. This push caused Robbin's glasses to fly off.

[91] Robbin 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.

[92] After Bill was arrested that night, his wife got into a car and disappeared.

[93] He 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

[94] Charmaine testified through a Tagalog interpreter.

[95] Charmaine is 21 years of age. She was born April 1, 1993 in the Philippines.

[96] She 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.

[97] They have no children, but she wants to have children with Bill.

[98] Bill is a pilot for Air Canada.

[99] Bill 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.

[100] Charmaine 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.

[101] On 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

[102] Charmaine 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.

[103] Both times that Bill locked the freezer happened in the month of July 2014.

[104] Charmaine testified that the motorcycle lock was never put on the fridge.

[105] Bill put the locks on the freezer and fridge because the fridge was leaking.

[106] When 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

[107] Charmaine 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.

[108] She 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.

[109] She did not meet Ross until July 3rd, 2014 when he had already moved into the house.

Re: July 8th, 2014

[110] She and Bill had cleaned the house during the day. They watched a movie downstairs and she went upstairs to get ready for bed.

[111] She came downstairs and saw Ross in the living room sitting on a chair using his laptop.

[112] She saw Robbin and Bill against the door. Robbin had Bill in a headlock.

[113] She 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.

[114] Charmaine testified that she did not see Bill punch Robbin.

[115] After 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.

[116] She 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.

[117] In 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.

[118] Bill 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.

[119] Charmaine told the Officer on a later phone call when asked, that Bill had tied her up and that they did it for fun.

[120] Charmaine 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

[121] He was born on July 7, 1964 in Montreal and graduated from CEGEP there, which is equivalent to an Ontario High School degree.

[122] He is currently a Captain with Air Canada as noted in the background section.

[123] He 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.

[124] He described his relationship with his wife Charmaine as being "spectacular". He denies ever being physically aggressive, threatening or controlling of her.

[125] He testified that they rarely argued. He cannot even remember what the arguments were about. When they rarely argued, it was 'low key'.

[126] Bill 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.

[127] Bill moved into the townhouse owned by his parents in Oakville in 2010. It has 3 bedrooms, one kitchen, 2 fridges and a basement.

[128] When 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

[129] He 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.

[130] Sometime 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.

[131] One 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.

[132] After 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.

[133] Then 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.

[134] Bill 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

[135] When he first met Charmaine she was a University student in the Philippines. Since they have been married, Bill has financially supported her.

[136] Charmaine 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.

[137] Charmaine 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

[138] Ross 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.

[139] Ross moved in the last day of June 2014.

[140] Bill agreed that he never had a relationship with Ross. (Transcript March 26, 2015 p. 27)

[141] In 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

[142] Bill 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)

[143] Robbin 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)

[144] Charmaine 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.

[145] Bill testified that there were constant issues between Robbin and Charmaine since the day she first arrived.

[146] As 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)

[147] Things got so bad that Robbin would blame two little pussycats for deflating the tires on his bicycle. (March 27/15 p. 27)

[148] On 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

[149] Bill testified that Robbin complained of many ailments. He had problems with his neck and shoulders. Robbin told him that he had cancer.

[150] Bill 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.

[151] He 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

[152] During 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.

[153] The 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.

[154] Charmaine mopped the floors and he moved Robbin's things to other parts of the house.

[155] He and Charmaine ate dinner and then they watched a movie downstairs.

[156] Ross 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.

[157] Before the altercation began, Bill went upstairs to get some ice cream for himself and Charmaine.

[158] At 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.

[159] Before the altercation began, Bill went upstairs to get Charmaine a bottle of water, which he retrieved from the garage.

[160] He 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)

[162] Robbin charged at him from a distance of seven feet away. Robbin was screaming and yelling at him. (March 27/15 p. 22)

[163] Bill testified that he is only 5 feet 8 inches in height; Robbin is 6 feet, 3 inches in height.

[164] Bill 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.

[165] As 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.

[166] They 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.

[167] He punched Bill in the groin a couple of times so he could break free. The chokehold ended and he was able to get free.

[168] There 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.

[169] Then 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.

[170] Bill 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.

[171] Bill testified that this was the first time that Robbin had been aggressive with him.

[172] Ross 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.

[173] He did not see Charmaine. He heard her yelling to Ross to call the police.

[174] The police arrived about 30 minutes later.

[175] In cross-examination, Bill stated that he came upstairs before the altercation and began to "clean up the kitchen". (p. 47)

[176] Bill stated that Robbin wanted to "get even with him" because he told Robbin to leave several weeks before.

[177] Bill stated that he was initially calm. He agreed with the suggestion that after Robbin insulted his wife he got upset and angry.

[178] Bill stated that he was telling Robbin to calm down. It was Robbin that charged at him.

[179] The physical altercation ended after he punched Robbin 2 to 3 times in the groin. (p. 64)

(7) June 28th, 2014 – Alleged Death Threat

[180] Bill denied ever threatening Charmaine in any way on any day ever.

[181] Bill 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.

[182] Exhibits #3 and #4 were entered as his Air Canada Flight Schedule for the month of June 2014. [2]

[183] Bill 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.

[184] The 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.

[185] When he arrived back home Charmaine was not there. She was at Maria's house.

(8) June 29th, 2014 - 'Garbage Bag' Assault

[186] Bill testified that this never happened on any day ever.

[187] He 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.

[188] Charmaine was still at Maria's house.

[189] In cross-examination, Bill agreed that he was home on June 29th at approximately 7:00 a.m.

[190] Charmaine 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

[191] Bill 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)

[192] Bill 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.

[193] Bill 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)

[194] He 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)

[195] Bill 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)

[196] Bill testified that on two occasions he locked the fridge after having a disagreement with Charmaine. (p. 13)

[197] When 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)

[199] Bill testified that he locked the freezer twice because the sweet things were up there.

[200] Bill testified that his relationship with Charmaine was "spectacular". He intends to stay married to her and to have children with her.

[201] In cross-examination, Bill denied that locking Charmaine out of the fridge was controlling behaviour. (p. 43)

[202] Bill 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.

[203] Bill 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)

[204] Bill 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.

[205] Exhibit #5 is a photograph taken by HRPS which shows the new locks for these bedroom doors.

(10) Re: Restraints in the Bedroom

[206] Bill 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

[207] Bill testified that there were constant arguments he had with Robbin over the thermostat. (March 27/15 p. 20)

[208] In 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.

[209] He 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

[210] The 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.

[211] The 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.

[212] At 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.

[213] Robbin gave a consistent account of the incident. His account was not shaken in cross-examination.

[214] The 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.

[215] Robbin and Bill gave diametrically opposed accounts of the incident. Bill's account seems to be the polar opposite of Robbin's.

[216] It 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.

[217] Other 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.

[218] Bill'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.

[219] Charmaine 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.

[220] I 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.

[221] Bill 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.

[222] I 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.

[223] Bill'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.

[224] There 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.

[225] Charmaine 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

[226] At 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.

[227] Robbin 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.

[228] Charmaine 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.

[229] If 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.

[230] From June 14 through to June 22 there is nothing noted on the Flight Schedule at all. The same is true for June 26th.

[231] The 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.

[232] Accordingly a finding of guilt is registered on Count #2.

Re: June 29th/14 'Garbage Bag Assault'

[233] Robbin 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.

[234] Bill'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.

[235] Bill 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.

[236] I 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.

[237] I 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.

[238] I am satisfied beyond a reasonable doubt that this assault occurred and a finding of guilt is registered on Count #1.

[239] It 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.

[240] Sentencing 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"

[1] Reference 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.

[2] There was no verification by Air Canada that this was his completed Flight Schedule.