Court File and Parties
Court File No.: Thunder Bay 171051 Date: 2018-06-25 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Kevin Andrew Mason
Before: Justice Pieter Joubert
Heard on: November 28 and 30, 2017
Reasons for Judgment released on: June 25, 2018
Counsel:
- Vicky Bae, counsel for the Crown
- Christopher Watkins, counsel for the defendant Kevin Andrew Mason
JOUBERT J.:
A. INTRODUCTION
[1] Kevin Mason stands charged with two counts arising from an incident on March 26, 2017. It is alleged that Mr. Mason assaulted Marcy Mason with a weapon, to wit: a belt, contrary to s. 267(a) of the Criminal Code of Canada ("Code"), and that he knowingly uttered a threat to Ms. Mason to cause death to her, contrary to s. 264.1(1)(a). The trial proceeded on November 28, 2017, and continued on November 30, 2017, and December 1, 2017. I acquitted Mr. Mason and indicated in brief oral reasons that a written decision would follow. These are my reasons for judgment.
B. CASE FOR THE CROWN
[2] The case for the Crown included the viva voce evidence of the complainant, Marcy Mason, a belt seized at the scene, a recording of two 911 telephone calls, and the observations of police officer Robert Bonthron which were read into the record by agreement of the parties.
1. Evidence of Marcy Mason
(a) In-Chief
[3] Marcy Mason is the spouse of Kevin Mason. The couple have two children together: Jackson and Jett, ages two years old and eight months old, respectively. At the time of the incident, the couple lived together in Thunder Bay.
[4] In her evidence in-chief, Ms. Mason testified that shortly after 11:00 PM on March 25, 2017, she and Mr. Mason returned home after dinner with friends of Mr. Mason at the Five Forks Restaurant in Thunder Bay. The couple had consumed alcoholic beverages at the restaurant. Ms. Mason testified she had consumed two drinks. She was not certain but believed Mr. Mason had consumed about three to four alcoholic beverages. She testified that she was not intoxicated at the time and estimated that, on a scale of zero to ten (with zero reflecting a state of complete sobriety), Mr. Mason would have registered an eight.
[5] According to Ms. Mason's evidence, at the residence the couple proceeded to smoke an unspecified quantity of marijuana which Ms. Mason testified would have placed her at a level of six or seven out of ten. She estimated that Mr. Mason would have registered at a level of nine. An argument broke out because Mr. Mason wanted the couple to go back out with his friends. The couple continued to argue for an hour, at which time Ms. Mason was told by Mr. Mason that she could not attend with him the following day to the funeral of his friend. He told her that he would attend the funeral with a woman referred to in these proceedings as "Roxanne". This resulted in a second argument which Ms. Mason indicated commenced at approximately midnight and during which Mr. Mason was walking back and forth between the bedroom and kitchen while she was in the kitchen.
[6] It was in this context that Ms. Mason testified that the events that form the subject of the criminal proceedings happened. I understand that a hallway leads from the bedroom to the kitchen. Ms. Mason testified that the bedroom door was open. She could see Mr. Mason seated on the bed. He stood up very quickly and went to the sock drawer opening it and returning to the bed. He sat back down and then wrapped a belt made of green cloth material around his hands. On consent, a belt seized by police matching the description provided by Ms. Mason was filed as Exhibit 1. Ms. Mason identified the belt to be the one she observed Mr. Mason to have been holding on the evening in question which she had last seen laying on the floor when police arrived.
[7] Ms. Mason testified that Mr. Mason tried to strangle her with the belt, and Crown counsel had her describe what happened. She saw Mr. Mason exit the bedroom holding the belt wrapped around both of his hands. She testified that as Mr. Mason approached her, she told him "Any closer and I'm going to call the police". He did not reply but ran toward Ms. Mason and placed the belt around her neck causing her to fall to the floor. By this time, she testified, Mr. Mason could hear that the police had been called. She told him, "The cops are on their way". He stopped, and said "See how easy it is? You're done."
[8] Ms. Mason was asked by counsel for the Crown to describe how Mr. Mason put the belt around her neck. She was initially unable to recall this but subsequently testified that Mr. Mason placed it around her left-hand side wrapping it around her neck one time. Ms. Mason testified that she fell down "probably pretty instantly". She testified that she told Mr. Mason, "Stop. Stop. I called the cops" and she testified she assumed he stopped because he saw the phone connected to 911. Ms. Mason testified, at that time, Mr. Mason said nothing but the police called back and while she spoke with police Mr. Mason told her not to tell police about the incident because the two have children together.
[9] At that time, on consent, Crown counsel played an audio recording of two telephone calls placed to/from 911, subsequently marked as Exhibit 2. It may be noted that no transcript of the 911 calls was provided. Ms. Mason identified the first telephone call to be the call placed by her to police using her cell phone. Ms. Mason testified she pressed the call button and the phone was knocked out of her hand. She testified that all of this happened at the time that Mr. Mason was wrapping the belt around her neck. Ms. Mason identified the second call as the one placed by police. She identified her voice, which she testified sounded "very strained, gaspy, squeaky". She identified a male voice in the background as Mr. Mason's voice, whom she testified she heard say "not to call the cops because [the couple] have kids". Ms. Mason testified that, at the time of the second telephone call, she was running outside onto the back deck and Mr. Mason was chasing her. Mr. Mason then went back to the kitchen, and took her keys. She thought he was going to drive away but he went across the street to his grandmother's residence.
[10] Ms. Mason testified that during the episode she could not breathe for about 20-30 seconds. It was more pressure than pain and she remained conscious but she was in shock. She testified that as a result her voice was "squeaky" and that she found herself coughing. She testified that she had redness around her neck and a bruise on her arm but she was not bleeding. She testified that she understood the words, "You're done" to mean "I was going to die." Ms. Mason testified that the incident has caused her fear and anxiety, to a point where she does not like to leave the house and is scared every time the phone rings.
[11] In support of its case, Crown counsel sought to tender evidence through Ms. Mason of prior discreditable conduct by the accused. I declined, at first, to permit this evidence to be received. However, as the testimony continued, and on consent of the defence, I reconsidered my ruling and the evidence was received. Ms. Mason testified that the couple had been married for approximately four years. They had been together for five years in total. She described the relationship as "toxic." The couple fought a lot. For instance, she testified that at the "after party" on the night of their wedding, Mr. Mason broke beer bottles on the street. The police were called. Ms. Mason convinced the officer not to arrest him and the two were dropped off at the Valhalla Inn. Ms. Mason was angry with Mr. Mason and the two argued in their hotel room at which time Mr. Mason punched her in the face. When Ms. Mason awoke, Mr. Mason had left. She had no vehicle to return to the location where the after party had been held to retrieve her belongings. As another example, on a year that she could not recall, Ms. Mason was struck in the face by Mr. Mason causing bleeding to her nose. Ms. Mason testified that he would not allow her to go to the hospital. Ms. Mason testified that there were other incidents but could not indicate the rough number. One incident involved Mr. Mason whipping a jacket that almost hit a baby, according to Ms. Mason.
[12] Ms. Mason testified that none of the other incidents resulted in Court proceedings. She testified that she was too scared. She testified that, before the marriage, she had been employed but that after that she had stopped working because Mr. Mason was the bread-winner. She testified that following the events in issue the children were placed with Mr. Mason's mother, on a voluntary basis through a kin placement. She admitted in direct examination that she had received a conditional discharge in 2011 for assault on an unrelated party and that she had recently been charged with mischief and uttering threats against Mr. Mason.
(b) Cross-Examination
[13] Defence counsel began the cross-examination with a series of questions about the individual known as "Roxanne." Defence counsel suggested to Ms. Mason that in the time leading up to the event in issue, she had come to suspect that Mr. Mason was involved with another woman and that she turned out to be correct in that suspicion. Ms. Mason disagreed. Counsel then suggested that the problems between the couple had developed when Mr. Mason had started spending time with Roxanne. Ms. Mason testified in response that things had always been bad. She agreed with the suggestion that Roxanne and Mr. Mason have a child together whose birth predated the incident in question. She denied the suggestion that she was aware, on the evening in question, that Mr. Mason was spending time with Roxanne. Defence counsel pressed this point. He had Ms. Mason confirm her testimony in direct examination that on the evening in question Mr. Mason had stated that he would be attending the funeral with Roxanne. Ms. Mason agreed that this had been upsetting to her because she had been suspicious that something was going on between the two. She agreed with the suggestion that the event served as a triggering event in the sense that Ms. Mason's suspicions turned out to be true.
[14] Defence then asked Ms. Mason a series of questions about her estimates of sobriety and the evening more generally. Ms. Mason agreed that earlier in the evening things were perfectly normal. She again indicated that Mr. Mason was intoxicated to a level of eight out of ten. She confirmed he had consumed four alcoholic beverages at the restaurant. She agreed that at a level of eight out of ten, Mr. Mason would have been intoxicated to the point of not being able to think correctly, slurring words, dropping things, and stumbling. She confirmed once again her estimate that after consuming marijuana at the home Mr. Mason was a nine out of ten. She agreed with the suggestion that he would have been so intoxicated that he would be at the point of passing out.
[15] It was at this point that counsel, once again, questioned Ms. Mason about Roxanne. Ms. Mason testified that she had not, at the time of the argument, known that Mr. Mason and Roxanne had a child together. However, Ms. Mason agreed she had known about Mr. Mason's relationship with Roxanne at that time. She agreed with the suggestion that she had been "very angry" about it at that time of the incident. Defence counsel suggested to Ms. Mason that, on the date in question, Mr. Mason had told her, "Fuck you, the marriage is over." She testified, "No, not exactly". Defence counsel repeated this suggestion: "He said, the marriage is over." Ms. Mason testified, "I don't recall". She disagreed with the suggestion that Mr. Mason decided to leave and as a result Ms. Mason called police. At this time, she testified that Mr. Mason did not tell her that the marriage was over.
[16] Defence counsel suggested to Ms. Mason that she has a "big anger problem" and she testified, "Yes." Several questions were asked concerning damage inflicted by Ms. Mason a few weeks preceding this trial to two vehicles belonging to Mr. Mason. Ms. Mason readily agreed that she had caused severe damage to the vehicles in question. However, when asked how the damage was inflicted Ms. Mason testified, "I don't remember". Ms. Mason was asked if the damage had been inflicted using a knife. She again testified, "I don't remember." Counsel put to Ms. Mason that the event in issue occurred "only a few weeks ago" and she agreed. Counsel asked if Ms. Mason had been either so intoxicated or so angry at the time that it might have affected her memory and she testified, "Maybe both". Counsel asked Ms. Mason if her anger or intoxication indeed "goes to that level" and she testified, "No." Counsel suggested that one of the two vehicles was essentially "carved apart" and Ms. Mason agreed with this, testifying "Yah". She agreed with the suggestion that two of the vehicle's tires were "slashed". Counsel then asked, "So, you remember that?" and she agreed.
[17] Defence counsel then suggested to Ms. Mason that she had actually caused damage to Mr. Mason's vehicles not once but twice. Ms. Mason agreed. Once again, she testified that she could not remember any specifics. Counsel suggested that the vehicle damaged in this way was Mr. Mason's work vehicle, and the witness testified, "I don't know". Counsel suggested that Mr. Mason's vehicle had been "sprayed with red spray paint" to which Ms. Mason testified, without hesitation, "Yup." Counsel asked if this was the same situation where she had no memory, and she agreed. She was asked whether her lack of memory was due to being "intoxicated or furious" and testified, "Probably both". Defence counsel asked what she had to drink, and Ms. Mason could not provide any details at all. She testified, "I'm not sure." The question was asked, "Do you remember starting to drink?" and the answer given was, "No." Defence counsel put to her, "It was just a couple of weeks ago" and Ms. Mason testified, "I don't remember."
[18] Ms. Mason was then asked if she had sent a constant string of letters and text messages to Mr. Mason. Her reply was, "He has to me, too". She was asked whether she had indicated that she would do things to certain people and Ms. Mason testified, "Yah". Ms. Mason was asked what she had said she would do. She testified "I'm not sure, exactly". She was asked if she had said she would kill them, and answered "Possibly". She was asked if this was in relation to killing a woman and child, and she testified, "I wasn't actually going to kill them." She was asked if she said that, and she answered "Yah". Ms. Mason was asked if she experiences anger to the point of blackout and testified, "Yes".
[19] Ms. Mason was asked, and she denied, that Mr. Mason had told her that the marriage was over at which point she became so angered that she attacked him in what became a wrestling match of sorts, and that she then threw the belt down to cover her tracks. She agreed with the suggestion that she had not completed any programming to address her issues and had progressively lost custody of the children.
(c) Re-Examination
[20] In re-examination, Ms. Mason testified that she had been in counselling and that the counselling has to do with safety planning and ways to work on her anxiety. She testified that the fact that Mr. Mason was as intoxicated and high as he was would have been why Mr. Mason did not kill her, as it would have been easier for Mr. Mason to do so had he been sober.
2. Belt Seized By Police
[21] As noted earlier, on consent of the parties a belt seized by police at the scene was entered into evidence and marked as Exhibit 1. It is uncontested that the belt, as described by Ms. Mason, is a men's belt green in colour and made of a cloth material. It has a metal buckle.
3. 911 Calls To/From Police
[22] There is also no controversy between the parties that a call was placed to 911 by Marcy Mason on her mobile telephone, followed by a second return call from police to Ms. Mason. As noted earlier, the audio recordings were entered into evidence and marked as Exhibit 2 and were played in Court. No transcript was provided which is unfortunate because the contents proved difficult to hear in Court. As trier of fact, I am in a position to review the tape and to make the following findings in relation to the two calls. I have done so, and make the following findings.
[23] For the first telephone call, which is brief in nature, there is a clear voice, that of the 911 operator, "911 emergency, do you need police fire or ambulance?" Having reviewed the exhibit, I find that immediately after the operator states this there appears to be a female voice. Her words are not clearly captured. The voice is very faint and sounds possibly muffled. The barely audible words spoken by what appears to be a female voice appear to be, "Fuck you". The voice of the operator indicates, "Hello?" and then "Hello?" once more. There is a very brief, nonverbal, sound that appears to be made by a female voice. The sound is fleeting and I simply cannot discern whether the sound is a whimper or something else. The dispatcher is heard to state, "You have 911". A ringing sound then marks what was identified in Court as the second telephone call.
[24] For the second telephone call, which is also brief in nature, I find as a fact, that an exchange takes place in which the dispatcher indicates that it is the Thunder Bay Police calling and that someone dialed 911 from a cell phone. A female voice, which appears to be breathing heavily, asserts that her husband just tried to strangle her with a belt. A male voice can be heard expressing, "No I didn't" and "What are you talking about? The dispatcher requests and is given the address of 433 East Mary Street during which time the male voice states, "Are you fucking kidding me?" The female voice provides her name as Marcy and states that police need to come "right now" because he is going to kill her. The male voice is heard in the background stating, "We have children". The female voice repeats "He is going to kill me" and "get away," and then states "He's taking my car". The male is identified as "Kevin Mason".
4. Observations of Officer Robert Bonthron
[25] On agreement, the following facts were tendered in lieu of viva voce evidence respecting the observations of police officer Robert Bonthron, a member of the Thunder Bay Police Service who was on duty from March 25, 2017 to March 26, 2017. In the course of his shift, the officer was involved in the incident in question. He responded to the call and arrived at 432 Mary Street East, Thunder Bay at approximately 3:05 AM with his partner, Kerry Dunning. Officer Bonthron interviewed the complainant, Marcy Mason. She informed him that an argument had ensued after the couple had returned home, at which time Mr. Mason took a belt out of a drawer and wrapped it around the neck of Ms. Mason from behind. The officer was told that this this had occurred in the kitchen and that during the incident Mr. Mason told Ms. Mason, "You're done." The officer was told that Ms. Mason called 911 and that the accused stopped and ran out of the house.
[26] Officer Bonthron made observations of injuries to the complainant. He noted that her nose was bleeding and there were red scratch marks on the side of her neck. The officer also noted that Ms. Mason was upset and crying at times. Paramedics were called, and the officer noted that Ms. Mason declined medical treatment and declined to stay elsewhere. At 03:50 hours, officer Bonthron seized a belt at the scene which was subsequently placed in property and stores and on agreement is Exhibit 1 in this trial. The officer did not interact with the accused and is not the investigating officer.
C. CASE FOR THE DEFENCE
[27] The defence called the accused Kevin Mason to give evidence in his defence.
1. Evidence of Kevin Mason
(a) In-Chief
[28] Mr. Mason testified in-chief that he is self-employed and owns a company named "Gutter Guru" which was doing well until earlier in 2017, when family stressors prevented him from continuing to work for himself. Mr. Mason has three children and I understand from his testimony that Jaxon and Jett are children whom he has with Ms. Mason and that Allandra is the daughter of Roxanne. He testified that he is a caring, devoted father, who does everything he can for his children. He testified that the criminal allegations led to CAS involvement, and that he has since completed several programs including the partner assault response (PAR) program, an intensive anger management program, the Triple P Positive Parenting program, the Caring Dads program and a drug and alcohol and counselling program. He testified that these programs were taken to address issues of grief in respect of the divorce process and in respect of his childhood experience of his father's suicide which he had buried "deep inside."
[29] Mr. Mason was asked by his counsel to comment about the situation surrounding Jaxon and Jett. He testified that he "lost custody". According to him, Ms. Mason initially had care of the children following the criminal allegations. He testified that he had to keep breaking the conditions he had been placed on because his children were being neglected and were not safe, and that Ms. Mason has an addiction to opioids and cocaine and drinks daily. Mr. Mason testified that CAS has indicated that he has gone above and beyond in relation to the children, and that Ms. Mason has gone downhill.
[30] Mr. Mason testified that he has a criminal record that includes an entry most recently for possession of a drug, for criminal harassment, and in 2012 for uttering threats in a previous, unrelated, spousal relationship. He indicated that his experience with the PAR program years earlier was not as positive as his experience more recently because he has completed the program in conjunction with the other programs and the focus has been not only himself but his children.
[31] Mr. Mason testified in relation to his prior conduct. His testimony in-chief focused on the incident surrounding his wedding night. Mr. Mason testified that he and Ms. Mason were drinking and partying. They went outside to have a cigarette and in the course of doing so two people doubling on a bicycle passed by. The person on the front of the bicycle "flipped a cigarette" at Ms. Mason who was in her wedding dress. This upset Mr. Mason and he began to chase after the bicycle which led to someone calling police. The officer who arrived, who he knew, told him that he was intoxicated and drove the couple to their hotel. Once there, Ms. Mason broke a champagne glass and Mr. Mason left. Mr. Mason insisted that he did not do anything to Ms. Mason that evening. He acknowledged that the couple has had their "ups and downs, for sure, good times and bad".
[32] Mr. Mason testified about his relationship with "Roxanne". He told this Court as a matter of his "personal integrity" that he did not have an affair with Roxanne. He testified that she and Ms. Mason had become pregnant around the same time. His rationale as I understand it was that he had sexual relations with Roxanne before he and Ms. Mason were actually married. Mr. Mason testified that Roxanne had not told him the specifics surrounding Allandra's parentage but when Mr. Mason recently began to bring Jaxon to her house to play he began to wonder and he obtained a paternity test.
[33] Mr. Mason testified that his relationship with Ms. Mason was not good and that she was not willing to work toward having his daughter in his life. He testified that she took things "very badly" when he told her about Allandra. She proceeded to damage his vehicles carving the words "Roxanne's a slut" and "Stay away" onto the vehicles. He testified that Ms. Mason indicated that Allandra was not wanted and could "go suck dick" on Simpson Street. He testified that she said that she was going to kill Roxanne and beat up the child, who Mr. Mason indicates is four as of December, 2017.
[34] In respect of the incident complained of, Mr. Mason testified that on the evening of March 25, 2017, the couple had dinner at the 5 Forks Restaurant with other couples. He consumed two beers before attending and once there he consumed two double rye beverages. He denied being a nine out of ten and estimated his level of intoxication to be a three or four. He testified that after returning home he did not consume any more alcohol and that the marijuana smoked by him did not have a significant impact. He believed that Ms. Mason had consumed wine at the restaurant along with a couple of shots of liquor. He did not believe that she was that intoxicated on the evening in question.
[35] Mr. Mason testified that he and Ms. Mason were the only couple who did not proceed from the 5 Forks Restaurant to the residence of one of the other couples. This prompted an argument. He drew a diagram, filed as Exhibit 3, explaining where he and Ms. Mason were in their residence at that time. He testified that he had taken his shirt and pants off at this time and was laying on the bed. Ms. Mason was in the kitchen. The two were arguing back and forth. He testified with reference to his diagram that the couple were not able to see one another from where they were located.
[36] In relation to the subsequent argument, Mr. Mason testified that a friend of his had passed away on the preceding weekend. Mr. Mason told Ms. Mason that she was not coming with him the next day to the funeral as he did not want to fight with her. In response, Ms. Mason asked who he was going with. He replied, "Just Roxanne" and Ms. Mason walked into the room. He testified she "snapped". When she was at the doorway, she ran and jumped on top of him on the bed and started trying to claw him with her nails. During this time he was laying on his back and side and facing the bathroom, looking to his left. He testified that as a result he received a small scratch on the side of his face and he now has a scar from it.
[37] Mr. Mason testified that in response he grabbed Ms. Mason's left hand with his left hand pulling it away from his face. He then grabbed her right hand with his right hand, at which point Ms. Mason's arms became crossed. Mr. Mason then released Ms. Mason's right hand and grabbed her head with his right hand, and then from that position he rolled over in what he described as a "wrestling move" which enabled Mr. Mason to get up and walk away. He testified that in the process, he pinned Ms. Mason down. He testified that he did not use "extreme force" just "common defence tactics." He has been boxing all of his life. Mr. Mason testified that he slapped Ms. Mason's hands away in the process of trying to hold her down. In relation to injuring Ms. Mason, he testified it was "just as [he] described" and that if he had it would not have been "intentionally inflicted".
[38] Mr. Mason testified that he then got up and went out of the front door to his grandmother's house which is nearby. He was wearing his boxers. He testified that he returned because he did not have his keys and that when he grabbed his keys and he heard Ms. Mason screaming more. He walked down the street, and Ms. Mason opened the back door and yelled that she was putting him in jail and taking the children. He testified that he yelled back, "We have kids".
[39] Defence counsel asked Mr. Mason about the green belt and his response in testimony, initially, was "I never seen it before". He then proceeded to testify that the belt in question came stitched into a pair of cargo pants which he last came into contact with approximately six to eight months before the incident in question. Mr. Mason specifically denied the account given by Ms. Mason. He testified that he never grabbed the belt, never attacked her and that what happened was "completely" the opposite. He testified that her evidence was fabricated and untrue.
(b) Cross-Examination
[40] In cross-examination, Mr. Mason was asked questions about prior conduct. Counsel suggested to Mr. Mason that on his wedding night he struck Ms. Mason causing her to have a black eye. Mr. Mason denied this and Crown counsel asserted that the police officer saw the black eye to which he responded, "Do you have any evidence of that?" It should be noted that no evidence was tendered at this trial from the police officer in relation to that or any other prior incident. Mr. Mason agreed with Crown counsel's suggestion that this was not the first time that he had been "charged" with an offence. Mr. Mason was cross-examined, more generally, on the marital relationship and he agreed that during the marriage Ms. Mason was completely financially dependent on him. He testified that Ms. Mason had moved into the residence with him, and testified that her becoming unemployed was one of the reasons that the couple had been experiencing difficulties.
[41] Crown counsel also asked Mr. Mason questions concerning the damage to his vehicle caused by Ms. Mason more recently. He testified that three tires were slashed in total. He testified that the damage to the one vehicle, a Lincoln, was "well over" $5,000 and he had a claim in with insurance, whereas with the other vehicle he was doing the repair work himself. Crown counsel suggested to Mr. Mason that the vehicles were "still functional" and he replied, "They do now". He testified that Ms. Mason had caused other damage on previous occasions including damage to the range hood in the house and damage to golf clubs. He testified, "I shouldn't have to put up with that crap".
[42] Mr. Mason was cross-examined on issues of child custody. Referring to Mr. Mason's earlier testimony, Crown counsel indicated that he had "lost custody" and Mr. Mason responded, "No, I gained it back this summer". Crown counsel suggested that, nevertheless, the outcome of the criminal proceedings would affect Mr. Mason's custody proceedings and Mr. Mason agreed. He was cross-examined with respect his earlier testimony that he had to break the conditions of his release. He testified that he had a "reasonable excuse" which was that he was protecting his children. Mr. Mason was quite agitated at this time and he testified that Ms. Mason's "own mother" has discussed her daughter's issues with drug addictions, lack of parenting skills, and placing of the children at risk. He testified that he was willing to go to jail to protect his children. When asked why he would have to go to jail to save his children, Mr. Mason testified that the children had "shitty diapers" and were not being fed. He asked, "What do you expect me to do? Wait until something happens? They're my life." He testified that he expected he would have custody when the criminal case was completed.
[43] Mr. Mason was also cross-examined on his criminal record which, it should be noted, was not filed with the Court at any point in the proceedings. Crown counsel asked why Mr. Mason had not told the Court in-chief about a sexual assault conviction. Mr. Mason, again appearing agitated, testified "I didn't think about it. I slapped a girl on the ass. It was a fuckin' dumb thing to do". He became confrontational with Crown counsel in his responses and questioned why the Crown would bring up the conviction. He testified that he thought in direct evidence that "we were talking about recent convictions".
[44] Mr. Mason was cross-examined about his earlier testimony that he had not been involved in an extra-marital affair. He agreed that Allandra, whose date of birth is December 16, 2013, would have been conceived in March or April of that year. But he maintained that he was not involved in an extra-marital affair and had not been seeing the two women at the same time. His explanation was that he was sexually involved with both women and was "not obligated" to be monogamous. Mr. Mason testified that he had learned about Allandra's birth in 2014, but he did not know that she was his daughter until a paternity test was done in 2017. He testified that once he knew, he did not tell Ms. Mason for about four months, because he was not to have contact with her and doing so would "just exasperate" matters. He testified that he had not told Ms. Mason before the testing because he had wanted to be sure first. He testified that he had "figured" that he and Ms. Mason would get marriage counselling or go their separate ways. However, she overreacted and threatened to "kill the little girl". Crown counsel suggested to Mr. Mason that he did not end the marriage on the night of the incident and he testified, "I said it's done" and indicated that he did not know "about Allandra" which I understand to mean that the paternity test had not yet been done.
[45] Crown counsel also cross-examined Mr. Mason on the evening in question. He was asked about his level of sobriety and maintained that he was "not that intoxicated". He was questioned about his testimony in-chief concerning the green belt, and it was suggested that the belt had not been stitched into the pants as suggested. He testified that he did not know, but indicated that what he did know was that the belt was part of a pair of Hugo Boss pants and was "not easily removable". He testified that he would not have pulled it out of the pants. Crown counsel suggested that the belt was not damaged to which he replied, "That does not mean anything."
[46] He testified that the incident between the couple in the bedroom, described as a wrestling match, lasted about four seconds before Mr. Mason had Ms. Mason "flopped over" and then another "two seconds" on the bed. He testified that he had "no issues" in subduing her. He indicated that he had to slap Ms. Mason's hands away and that she managed to make contact with her "claws" a couple of times one of which resulted in the scar on his cheek. Mr. Mason agreed that he did not go to the hospital as a result of his injuries. Asked if this was unusual behaviour for Ms. Mason, Mr. Mason indicated that things were often physical and that she threw things. Crown counsel suggested that if the behaviour on March 26, 2017, were a common occurrence, as he suggested, then Mr. Mason would not have been able to recollect the specifics. Mr. Mason, clearly agitated by this question, testified that he could recall the incident because he had been arrested and charged. He testified that he did not do anything and that the allegations were "erroneous bullshit".
[47] Finally, Crown counsel cross-examined Mr. Mason on his testimony concerning some of the events that have occurred since the incident. Crown counsel indicated that Mr. Mason was never approved by the Crown Attorney's Office to take the PARS program. He replied that he did not need approval and repeated his earlier testimony that he had completed the programming. Crown counsel then asked if he had completed anger management programming which I understand is a reference to the manner in which Mr. Mason conducted himself in the cross-examination. I will address this from the standpoint of demeanour but note, at this time, that the witness did not change position that he had completed the programming indicated.
(c) Re-Examination
[48] There was no re-examination of Mr. Mason.
E. POSITIONS OF THE PARTIES
[49] I will not reproduce the parties' submissions in full but note that I have had the full benefit of hearing and considering the submissions of both counsel. It should be noted that identity, date, and jurisdiction are not in issue.
[50] In summary, defence counsel in his submissions touched on the criminal record of Mr. Mason, the believability of his client in testimony, the injuries as reported by the police officer, and the testimony of Ms. Mason. He takes the position that client though "verbose" but is credible and in any case that the Crown has not proven its case to the standard set out in R. v. Lifchus, [1997] 3 S.C.R. 320 and R. v. W. (D.), [1991] 1 S.C.R. 742. He submits that Ms. Mason was "evasive" on key points and that her evidence simply cannot be trusted.
[51] Crown counsel, in turn, submits that both parties have demonstrated animosity in the course of their testimony and that the question is who is credible, and who has a motive to lie. It is the Crown's position that Ms. Mason provided a credible account corroborated by the contents of the 911 telephone calls, the presence of the belt at the scene and the physical injuries observed by officer Bonthron. She had no motive to lie and was forthright in her testimony. It is her position that Mr. Mason, on the other hand, is not credible. Crown counsel points out Mr. Mason's use of profanities and other expressions of anger. She submits that Ms. Mason has a motive to lie, having admitted that the outcome will impact whether he regains custody. Crown counsel invites me, as a consequence, to find that, even with the "benefit" of the W. (D.) test, the evidence of Ms. Mason is "the truthful and accurate representation." I am asked to find, in the result, that the offences have been proven beyond a reasonable doubt having "not been successfully rebutted" by a "less credible" version of events provided by the accused.
F. ISSUES & LAW
[52] In view of the submissions of the Crown, it is necessary to be clear in setting out the presumption, onus, and standard of proof in a case such as this.
1. Presumption of Innocence and Burden of Proof
[53] To be clear, Mr. Mason is presumed innocent and he need prove nothing. As Dickson C.J.C. writes in R v Oakes, [1986] 1 SCR 103, referring to the decision in Woolmington v DPP, [1935] AC 462 (HL), the requirement that the Crown prove the accused's guilt beyond a reasonable doubt is the "golden thread" of the criminal law:
The presumption of innocence is a hallowed principle lying at the very heart of criminal law …. The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise (paras. 29, 30).
[54] The burden of proof always remains with the prosecution. It is an error of law to require that the accused must "rebut" the evidence of the Crown.
2. Standard of Proof
[55] The requisite standard of proof is proof beyond a reasonable doubt. As explained by Cory J. in R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27:
First, it must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence. The two concepts are forever as closely linked as Romeo with Juliet or Oberon with Titania and they must be presented together as a unit. If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law. Jurors must be reminded that the burden of proving beyond a reasonable doubt [page59] that the accused committed the crime rests with the prosecution throughout the trial and never shifts to the accused.
3. The W. (D.) Test
[56] Mr. Mason having made the decision to testify, I am required in considering whether the Crown has met the requisite standard of proof to apply the principles for assessing contradictory evidence as set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742.
[57] The W.(D.) test as I understand it reflects the concern of the Supreme Court of Canada in ensuring, in cases where the accused testifies, that the presumption, burden, and standard of proof in criminal proceedings, is not undermined.
[58] Cory J. writes at para. 27:
In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole.
At para. 28, Cory J. writes:
A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are 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. [Emphasis in original.]
4. Cases Raising Issues of Character; Discreditable Conduct; Prior Criminal Records; and Motive
[59] It must be noted that where character, discreditable conduct, a prior criminal record, or motive are raised, in the context of R. v. W.(D.), Supra, the essential test does not change. Care must be taken to ensure that the burden, onus of proof, and standard of proof, are properly applied.
G. APPLICATION TO THE FACTS
[60] As noted above, Crown counsel invites me, as a consequence, to find that, even with the "benefit" of the W. (D.) test, the evidence of Ms. Mason is "the truthful and accurate representation." I am asked to find, in the result, that the offences have been proven beyond a reasonable doubt having "not been successfully rebutted" by a "less credible" version of events provided by the accused.
[61] With great respect, I must decline to do so. To do so would be to commit the very error that R. v. W.(D.) seeks to avoid, namely, a credibility contest between the Crown and defence witnesses in which the decision is made on the basis of whose testimony is preferred. Clearly, doing so violates the presumption of innocence and serves to reverse the burden of proof by requiring the accused to provide a "more credible" account.
[62] What I must do, instead, is to view the evidence as a whole and apply the test in R. v. W.(D.). Beginning with the first step, viewing the evidence as a whole, if I accept the evidence of Mr. Mason then I must acquit him. If I do not accept that evidence, but in light of the evidence adduced at trial his evidence nevertheless raises a reasonable doubt in respect of either of the offences, then I must acquit him. Finally, even if I reject his evidence, I must look to the remaining evidence to determine if the Crown has met its burden of proving these charges beyond a reasonable doubt.
1. Do I Believe The Accused?
[63] Do I believe Mr. Mason's account of what happened on the evening in question, specifically, that he did not attack Ms. Mason with a belt or utter the threat as alleged? Mr. Mason's testimony in essence is that when he told Ms. Mason, in the course of a heated argument, that he would not be attending the funeral with her and that he would be attending with Roxanne, she "just snapped", ran and jumped on top of him on the bed in the master bedroom, and started trying to claw him with her nails. He then used a "wrestling move" in the manner described by him to get Ms. Mason off and left the residence, returning for his keys. When he did, Ms. Mason yelled that she was calling police and he yelled back that the couple have kids together. Mr. Mason testified that if he injured Ms. Mason in the process it was not intentional.
[64] In considering the account provided by Mr. Mason, I must take both credibility and reliability into account. Demeanour is also a critical consideration. And, having had the opportunity to not only observe Mr. Mason in the course of his testimony in-chief and in cross-examination but also throughout the trial, I must express my concern respecting all three of these considerations.
[65] Dealing first with credibility, which refers to a witness' sincerity and believability, I find that at many points in the testimony Mr. Mason's evidence does appear sincere. However, at other points – and often on significant issues – his evidence simply cannot be believed. For example, at Mr. Mason's testimony respecting the green belt was, initially, that he had "never seen it before". Almost immediately, he testified that the belt in question came stitched into a pair of cargo pants which he last came into contact with approximately six to eight months before the incident in question. Another example concerns the testimony surrounding the "affair" with Roxanne, which Mr. Mason was clearly concerned about. Mr. Mason testified in-chief that he did not have an "affair" with Roxanne. He acknowledged that she and Ms. Mason became pregnant around the same time. In cross-examination, Mr. Mason testified that he had not been "seeing" the two women at the same time, and while conceding he was sexually involved with both women he was "not obligated" to be monogamous. To the extent that an affair may be construed as a sexual or romantic relationship or attachment between two people without the attached person's significant other knowing, I find Mr. Mason's testimony to reflect a lack of sincerity. In addition, the testimony of Mr. Mason that he "had to" keep not complying with conditions of release was simply not believable. Nor was his explanation for failing to disclose the conviction for sexual assault, namely, that he thought that his lawyer was asking him to testify about "only recent convictions".
[66] Reliability, dealing with accuracy, was also of significant concern. Mr. Mason appeared, on one hand, to be able to describe quite clearly the events of the evening in question. I also note that his estimate of the parties' respective sobriety would appear to be fair. Yet, at many points the testimony was vague and/or inaccurate. As an example, Mr. Mason testified in-chief that he had "lost custody" of his children. When questioned about this in cross-examination he testified, "No, I gained it back this summer." He later testified that he expected he would have custody when the criminal case was completed. While I certainly appreciate that the nature of the family proceedings was not fleshed out by either counsel, the testimony of Mr. Mason lacks specificity in respect of an issue that is an important issue, which as the Crown identified is motive. This is far from the only example where the testimony of Mr. Mason lacks accuracy.
[67] Third, while I accept that demeanour evidence must be approached with caution I must take into account the behaviour or Mr. Mason. In testimony, he presented as often very angry. He was particularly agitated in the cross-examination during which his face was very red, the language he used frequently vulgar and his tone often loud. On a few occasions, Mr. Mason appeared to be on the verge of self-restraint. And, at one point during the trial, at a recess, Mr. Mason could be heard screaming from a holding location outside the Courtroom proper. This sort of behaviour is of real concern in a case in which the allegation, in its most basic form, is that the accused effectively lost self-control.
[68] The impression that I am left with is that Mr. Mason is often loose with his words, highly impulsive, and at times inaccurate. This may account for some of the many inconsistencies in his evidence, but as already noted I am also concerned with the sincerity of Mr. Mason and I find myself, clearly, unable to believe his evidence. I therefore turn to branches 2 and 3 of the W.(D.) test.
2. Does Mr. Mason's Testimony Raise a Reasonable Doubt?
[69] Even though I do not believe the evidence of Mr. Mason, does his testimony raise a reasonable doubt in respect of either of the offences?
[70] The essential position advanced by Mr. Mason in testimony is that, on the evening in question, the couple became embroiled in a heated argument that at some point included a discussion about Roxanne. He testified that at that moment, Ms. Mason "snapped" and attacked him; that a wrestling match of sorts ensued in which Ms. Mason may or may not have been injured; and that he left shortly thereafter returning for his keys. He denied the assault with a weapon and death threat on his part.
[71] While I am not prepared to accept Mr. Mason's evidence, I am prepared to accept his testimony that he received scratches on the evening in question. There is some corroboration in Mr. Mason's pointing at a scar in the course of his testimony. Moreover, the injuries sustained by Ms. Mason, as observed by the police officer, are not inconsistent with the position advanced by Mr. Mason. As noted earlier in this decision, the officer observed a bleeding note and red scratch marks on the side of Ms. Mason's neck. I will discuss in the next section the fact that these observations are not the same as Ms. Mason's testimony respecting her injuries. For present purposes, I note only that I am prepared to accept the officer's observations to be accurate. Third, while I discuss the evidence of Ms. Mason in more detail in the next section, I find that her response to defence counsel on the issue of whether there was a fight about the marriage being over to raise concerns. Defence counsel suggested to Ms. Mason that, on the date in question, Mr. Mason had told her, "Fuck you, the marriage is over." Her response was not no. It was, "No, not exactly". Defence counsel repeated this suggestion: "He said, the marriage is over." Ms. Mason's response was, "I don't recall". Pressed further, Ms. Mason testified that the accused did not tell her that the marriage was over. I had an opportunity to observe Ms. Mason in the course of her testimony, and I do not believe her evidence on this point. Regardless, there is no doubt from the evidence of Ms. Mason that she might well have "snapped" and resorted to violence, and even forgotten what happened, where alcohol, marijuana, a heated argument, and the woman Roxanne, were involved. Finally, I find that the contents of the 911 tapes do not, conclusively, capture what did or did not happen on the night in question.
[72] In considering what to do with this evidence at the second stage of W.(D.), I refer to the decision of Code J. in R. v. Humphrey, 2011 ONSC 3024, [2011] O.J. No. 2412 at para. 155:
However, there is no burden on the accused to convince me of the truth of his exculpatory account. I am satisfied that his story might reasonably be true for the reasons set out above. As noted, his account has some credibility and some of the circumstantial facts support it, such that I cannot completely reject it. (Emphasis mine).
Code J. explains at para. 156:
As I read the long line of authority on which W.(D.) is based, the second stage in Cory J.'s analytical framework in that case refers to the trier of fact being in a state of uncertainty. As Morden J.A. put it in Challice, supra at pp. 556-7, it refers to "something in between" either "total acceptance" or "total rejection" of the accused's exculpatory account. These latter two states of mind, at which a trier of fact may arrive when assessing all the evidence at the end of the case, are addressed at the first and third stages of the analytical framework. The "in between" state of mind was also referred to in Challice, supra as simply meaning that the trier is "unable to resolve the conflicting evidence". In Nimchuk, supra, Martin J.A. referred to it as meaning that the trier does not know "exactly where the truth of the matter lay", unlike the other two states of mind where the trier of fact is sure where the truth lies. It is in these senses that I use the phrase "might reasonably be true" and not in the sense of imposing some tactical or evidentiary burden on the accused to disprove his guilt. I simply mean that his story has neither been accepted nor rejected, that it might be true, and that I am left in a state of reasonable doubt. I am aware that there is a line of authority holding that the phrase "might reasonably be true" can be understood, in some historical common law contexts, as placing a burden on the accused. I am not using the phrase in this sense. See: R. v. Mathieu (1994), 90 C.C.C. (3d) 415; R. v. Phillips and Baker (2001), 154 C.C.C. (3d) 345 at 358; R. v. K. (V.) (1991), 68 C.C.C. (3d) 18; R. v. Rattray (2007), 74 W.C.B. (2d) 12 (Ont. C.A).
[73] In applying those paragraphs to this case, and in specifically recognizing that there is no burden on the accused to convince me of the truth of his exculpatory account, I am prepared to accept that the story provided by Mr. Mason, while not believed by me, might nevertheless reasonably be true in that his account has some credibility and that some of the circumstantial facts do support his version of events. I cannot completely reject his version, and as a result there must be an acquittal on the basis of branch two of W.(D.).
3. Would there be an Acquittal on the Basis of Branch Three?
[74] Although I have decided this case on the basis of the second stage in W.(D.), I would note that were I to have found otherwise there would still be an acquittal in this case.
[75] In terms of credibility, in her evidence in-chief Ms. Mason presented as sincere and her account seemed believable. Her demeanour was consistent with what might be expected given the nature of the testimony. In cross-examination, that picture changed considerably. I had the opportunity to hear Ms. Mason's responses and observe her demeanour in cross-examination, and I find that Ms. Mason presented as evasive. This occurred on crucial issues at the time of the offence including the extent to which Ms. Mason knew about the existence of a relationship between Mr. Mason and the lady identified as "Roxanne". It also occurred on issues of credibility, including the extent of Ms. Mason's ability to recollect her recent actions in respect of Mr. Mason's vehicles. Ms. Mason variously testified that she did not remember, that she did remember, and finally, she stated "I haven't went to Court yet. I don't know what to say". That Marcy Mason was repeatedly evasive, at times to the point of approaching hostility, is of great concern. It undermines the extent to which this Court can accept, on the evidence as a whole, that she is being sincere.
[76] The other issue is reliability. This refers to the accuracy of the witness' evidence. I note from a standpoint of internal validity that it is troubling that this witness, in one context would claim to recollect the details of an event that dates back to March 26, 2017, and which led to charges against Mr. Mason accurately, but would claim to not be able to recollect the details of an event that dates back to a few weeks preceding the trial, but which led to charges against her. The reasons given by Ms. Mason for being unable to recall the more recent events are that they "may" have involved anger and alcohol consumption on her part. The anger was in relation to the relationship between Mr. Mason and the other woman. Yet, the earlier incident was one in which Ms. Mason, after some cross-examination, finally admitted she knew about the other woman and was angry. It was an event that also involved alcohol consumption as well as marijuana consumption.
[77] From a standpoint of external validity, I note it troubling that the testimony of this witness does not match the evidence provided by the officer. I appreciate that the Crown submitted in her closing submissions that the nosebleed was caused by the injuries inflicted by Mr. Mason. But, I simply do not agree that the evidence is "corroboration" when Ms. Mason's evidence was that she was not bleeding as a result. In the end, the question is credibility and reliability, and what I can conclude is that the reliability of the account of Ms. Mason as to her own injuries is called into question. Evidence is equivocal.
[78] The same may be said of the 911 tape. Crown counsel presented the 911 tape as very strong corroborating evidence because in her submission it was a tape that was made during the strangulation. But, as noted earlier there was no transcript produced and therefore I, as trier of fact, took the time to review the two calls repeatedly to determine what was actually captured. My findings are set out above, but can be summarized here as being to some extent consistent and to some extent inconsistent with the account of Marcy Mason. The first call is, in my view, ambiguous. In the second call, Ms. Mason's voice does sound strained, and there is an individual calling out in relation to the children. I appreciate that this is some corroboration of the account given. But, in view of the significant issues of credibility, the issues of reliability, of the witness both internally and in respect of the injuries observed, I cannot say beyond a reasonable doubt what happened.
[79] I also do not accept the submission of Crown counsel that Ms. Mason had no motive particularly when the Crown submits that Mr. Mason has a motive to lie because the outcome of the criminal proceedings will have an impact on the outcome of child welfare and custody proceedings with respect to the couple's children. It would stand to reason that Ms. Mason would have an equally strong motive to lie. She also stands charged with criminal offences in circumstances where the outcome of Mr. Mason's criminal trial will have an impact on. Taking this into consideration, along with the issues of credibility and reliability cannot, in my view, but lead to an acquittal. In arriving at this decision, I am mindful that I am entitled to accept all, none, or some of the complainant's evidence. I further note that, in arriving at this decision, I have considered all of the remaining evidence to determine if the Crown has met its burden of proving these charges beyond a reasonable doubt, as required at the third stage of W.(D.), including the evidence of prior discreditable conduct. I nevertheless find, in all of the circumstances, that the Crown has not met its burden in respect of either of the two counts before this Court.
H. Conclusion
[80] In the result, acquittals are entered on both counts.
Released: June 25, 2018
Signed: Justice P. Joubert