R. v. Mackay, 2010 ONCJ 597

COURT FILE No.: 08-7395DV Citation: R. v. Mackay , 2010 ONCJ 597 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — and — ROBERT DONALD MACKAY Before Justice Gregory A. Campbell Heard on August 24, October 26 and November 16, 2010 R. Dietrich ................................................................................................. counsel for the Crown G. Goulin ............................................................................................... counsel for the accused REASONS FOR JUDGMENT CAMPBELL J.: BACKGROUND [ 1 ] Beth St. Germaine is the complainant in this proceeding.

She is someone who was intent on having a longstanding intimate relationship with Robert MacKay. Mr. MacKay’s interest in this dating relationship waned after a few months. He was non- committal and essentially wanted it to end it. The defence asserted that Ms. St. Germaine mistrusted the accused and was also capable of being violent. Some background about this relationship is required. [ 2 ] On Friday, May 30, 2008, Ms. St. Germaine let herself in to Mr. MacKay’s home prior to his expected return. Although the complainant did not have a key to the home she said she was shown how to gain access by Mr. McKay.

While waiting, she answered the telephone and spoke to a woman who identified herself as the accused’s girlfriend. The two women talked for a short while and then agreed to meet that same day at Mr. MacKay’s house. They were together at the accused’s house when he arrived home. The account of what followed differed somewhat between the witnesses. There is no dispute that the complainant was angry. She acknowledges that she punched Mr. MacKay in the arm. Mr. MacKay’s other girlfriend testified that she saw the complainant slap and kick the accused. Mr. MacKay said that he was punched and kicked.

The excitement lasted for approximately 10 minutes. The other woman left and the complainant spent the night with Mr. MacKay. [ 3 ] I am satisfied that there had been times when Ms. St. Germaine parked her car at a nearby church parking lot and watched Mr. MacKay’s home. I also accept that the complainant had a habit of scrolling through the call history on Mr. MacKay’s home telephone and from time to time she called numbers back that appeared but were not familiar to her. While all of this annoyed Mr. MacKay his efforts to try and end the relationship were uneventful. [ 4 ] Ms. St.

Germaine remained hopeful about the relationship. Both the complainant and accused confirmed that they continued to see each other periodically through to the date of the occurrence at issue. Ms St. Germaine pointed out that they had in fact gone away for a weekend together just shortly before October 8, 2008. Ms. St. Germaine testified that she held out hope that the relationship would improve. That hope continued even beyond October 8, 2008. [ 5 ] Count one of the information alleges that Mr. MacKay assaulted Beth St. Germaine on October 8, 2008. The crown, of course, has the onus to prove that that Mr.

MacKay applied force to Beth St. Germaine without her consent. Count two alleges that Mr. MacKay knowingly uttered a threat to cause bodily harm to Beth St. Germaine on this same date. The elements of this offence require

the crown to prove that the accused uttered the threat to cause bodily harm and that the uttered words, when viewed objectively in the context or circumstances in which they were spoken, conveyed a threat of serious bodily harm. That is to say, that the words were meant to intimidate or to be taken seriously. The Facts [ 6 ] On October 8, 2008, Beth St. Germaine decided to stop by Mr. MacKay’s home to see him. It was a Wednesday and just before 11:00 pm when she arrived at his residence and let herself in.

She described how she was inside the home in the accused’s bedroom talking and asked what he was doing in the basement. She indicated that he had been doing some renovation in the basement. She described him as being agitated or “a little on edge.” During the course of their brief discussion, she said that the accused suddenly grabbed her wrist and pulled her down to the basement and then threw a wine bottle against the wall that he had been working on. This act of aggression alarmed Ms. St. Germaine so she ran upstairs to get away from Mr. MacKay but he followed her.

She told him that he was “fucking crazy” and then said, “I wish your mother could see who you really are.” At that point, she testified, Mr. McKay “lost it”. She said that Mr. MacKay told her that he could duct tape her up, torture her in the basement and kill her and no one would find her for three days. She described how he then wrestled her down to the floor in the kitchen and positioned himself on top of her, straddling his legs on either side of her and placed his knees on to her shoulders while she lied with her back on the kitchen floor. [ 7 ] Ms. St.

Germaine testified that she found it hard to believe that someone she had spent the last year with could be capable of killing her. Nevertheless, she said that she was very much afraid. The complainant went on to describe how Mr. MacKay leaned over toward her and smacked her about her head and face and temple area as she lied there on the floor with him on top of her. She described how he also flicked his hand in her face in and around the eye area.

She estimated that this open hand smacking and flicking of her face occurred a total of 20 times and during that same time period he also saw fit to spit in her face on more than one occasion. [ 8 ] This went on for approximately five minutes before the accused got up but she indicated that he was not yet done. She added that after he got up and while she was still lying on the floor, he kicked her in the lower left back and rib area. Ms. St. Germaine ultimately got up to her feet and went immediately to the bathroom to see her face because she could feel that it was swelling up.

She was crying as she went into the bedroom where Mr. MacKay was and with her head in her hands asked, “How could you do this?” She stated that she was concerned at that time that her brother and family would learn of this insofar as Ms. St. Germaine worked as an office administrator for a small privately held family corporation that was operated by her brother and father. She was scheduled to report to work the next morning. [ 9 ] When asked why she went into the bedroom where Mr.

MacKay was located after the alleged assault, the complainant indicated that she wanted to resolve the matter and didn’t want to get Mr. MacKay into trouble. She held the opinion that if her family saw the extent of her injuries it would have adverse consequences for Mr. MacKay. She added that she also would have been embarrassed by the situation. [ 10 ] The following morning, Ms. St. Germaine reported to work as scheduled. She tried to cover up with a sweatshirt and a hood. Her brother, however, noticed injuries to her face. In particular, he testified to seeing swelling to his sister’s eyes, forehead and nose.

After discussing how she sustained the injuries, David St. Germaine told his sister to call the police. He then sent her home. The next morning, the complainant again reported to work as scheduled. This time her father was in attendance. Mr. St. Germaine recalled seeing a black eye. He was unable to describe any other injuries. He sent his daughter home but called the police himself. [ 11 ] Police Constable Warren Anglin was charged with investigating the complaint. Officer Anglin met with the complainant and her mother at the St. Germaine family home for over an hour.

He recalled that the complainant didn’t want any assistance from the police. During that interview, however, he observed the following injuries: swollen and bruised eyes and forehead, bruise to lower back and two bruises to the inside of Ms. St. Germaine’s right arm. He testified that Beth St. Germaine also mentioned four bumps on the back of her head; however, he did not inspect or examine that complaint of injury. Officer Anglin recommended to her that she seek medical attention. [ 12 ] A couple of weeks later the police officer followed up and obtained statements from the complainant’s father and brother.

The complainant had difficulty recalling whether she met with the police at or about that time. However, she did recall being informed by the police that Robert MacKay had been charged with a criminal offence and would have been prohibited from communicating with her. Notwithstanding, the complainant confirmed that she made several telephone calls to Mr. MacKay in an effort to discuss the matter. She indicated that her reason for making the calls were an attempt to try and help Mr. McKay by letting him know that she was not interested in proceeding with a prosecution. On the advice of counsel, Mr.

MacKay refused to return any of those telephone calls notwithstanding having received several voice mail messages from her over the course of two or three days. [ 13 ] The trial was scheduled to be heard on October 19, 2009. On that date, Officer Anglin was in attendance at the courthouse along with Beth St. Germaine. The officer testified that Beth St. Germaine delivered, for the first time, a handwritten statement outlining the events of October 8, 2008 together with a series of photographs. Beth St.

Germaine testified that the reason she provided the statement and photographs to the officer on that day was because she understood that this information could assist with a resolution of the matter without the necessity of a trial. When asked when the photographs were taken and the statement prepared, Ms. St. Germaine testified that it was a day or two after the incident occurred and at a time when she was sitting at home with her girlfriend and discussing the situation.

As a result of that discussion, she concluded that it would be wise to document the incident by writing out a statement and taking pictures of her injuries as they appeared at that time as she thought it was possible that this information might become important later, she explained, for example, in the event that she was ever assaulted again by Mr. MacKay. [ 14 ] On November 4, 2009, Police Constable Anglin followed up with Ms. St.

Germaine and this time obtained a statement from her that essentially mirrored those facts the complainant had outlined in the statement delivered to him on October 19 at the courthouse.

[ 15 ] Robert MacKay took the witness stand and indicated that his dating relationship with Ms. St. Germaine began in the fall of 2007. He stated that the relationship broke down after a few months “because she was physical.” He made reference to being punched by Ms. St. Germaine, in or around February 2008, after the complainant discovered that he had attended a strip bar. He also described how the complainant became confrontational by yelling and punching him again on May 29, 2008 after he called her to pick him up after he failed a roadside alcohol-screening test.

And then a day or so later, he was confronted by Ms. St. Germaine at his home along with Josie Truong after the two women discovered he was dating both women. Mr. MacKay explained how on that occasion the complainant came toward him from the front porch of his house “in a rage” and proceeded to punch him, kick him and even threw his telephone at him. He said that he was left with a cut lip, and several bruises to his side and leg (See photographs Exhibit numbers 4 a, b and c). [ 16 ] With this backdrop, Mr. MacKay testified that the complainant’s violent behaviour again emerged on October 8, 2008 after Ms. St.

Germaine arrived at his home and proceeded to scroll through the call history on his telephone and then dialled a number. The accused testified that he asked Ms. St. Germaine to stop what she was doing and to leave. He added that as he approached the complainant and made effort to remove the phone from her hand, he received an immediate palm strike to his face from Ms. St. Germaine followed by a squeeze of his face with the same hand she used to strike him holding him at bay and pushing him away. Mr.

MacKay said they struggled as he tried to remove the phone from her other hand, and they ended up on the kitchen floor. Once he had her down, he states that he removed the phone from her hand and placed it on the countertop and pinned her arms to the floor under his knees. Once he had her under control Mr. McKay “…rapped her on the head a couple of times” while stating “fucking think.” After she promised to leave, Mr. McKay let Ms. St. Germaine up but he stated she didn’t leave she didn’t leave. Instead, she apparently walked to the basement and looked for some wine.

He described her as “drunk”, “erratic” and “aggressive”. He followed her about the house and up the stairs where she stopped to look at herself in the mirror. From there he said the complainant went to the computer room and then to the bedroom where she finally calmed down, apologized and again undertook to leave. As Ms. St. Germaine began pulling out of the driveway Mr. McKay followed and called her back because she had left her pocket book. He states that she pulled back in and he tossed her purse on the front seat of the car.

The complainant had no real recollection of this but didn’t dispute it may have occurred. [ 17 ] Three days later, on October 11, 2008, David St. Germaine was at the golf club and approached the accused. They had a brief discussion about the incident. David St. Germaine was asked during the trial if he noticed any marks or injuries on the accused. He testified that he did not observe any injuries. Mr. McKay recalled the discussion that day. He describe how he was seated at the bar and turned when Mr. St. Germaine approached him. [ 18 ] When asked if he threatened Ms. St. Germain, Mr.

MacKay stated that he only responded to statements made by her but in a manner that was not intended to be serious. To this end, Mr. McKay testified that the complainant said that she was going to have him killed. In response, he stated, “Maybe I’ll tie you up.” [ 19 ] Mr. MacKay denies causing the injuries depicted in the photographs or any injuries at all. He stated that but for the rapping on her forehead when he was trying to get her to “fucking think” he states that he did not strike her, harm her or threaten her. [ 20 ] I’ve touched on Josie Truong’s testimony to this point. Ms.

Truong indicated that she was at Mr. MacKay’s house with the complainant in May 2008, and recalled being on the porch when the accused arrived home when “The next thing I know, she ran down the porch toward Robert yelling…bad names…and slapping and kicking him.” Ms. Truong left approximately 10 minutes later. ANALYSIS [ 21 ] I have given consideration to the testimony of Robert MacKay. Essentially, the defence argues that his handling of the situation was entirely appropriate having regard to the violent and intrusive nature of the complainant. I am not able to accept Mr.

MacKay’s narrative and the assertion that Ms. St. Germaine was a violent person who caused him injury and posed a threat to his property thereby requiring him to wrestle her to the ground and rap her on the head in an effort to get her to the “Think”. While I can accept that the complainant may have struck Mr. McKay in May 2008 after she discovered he was seeing another woman, what occurred that day was not to my mind as described by Mr. MacKay. Even Ms. Truong who was called by the defence, described slapping and kicking. She said nothing of punching. Mr.

MacKay also said that he sustained injuries that day from the complainant that were visible and to that end he took photographs, although he didn’t develop them until subsequent to the October incident. He testified that he ran into Ms. Truong in the park a few days later and showed her his bruises. Ms. Truong testified that she did not see the accused during the next few days that followed. [ 22 ] While the complainant agreed with the suggestion that that she may have punched the accused, she had no specific recollection. She said that if she did punch him it would have been to his arm or shoulder.

She also had no recollection of striking Mr. MacKay previously after learning that he had gone to a strip club, although again she had no difficulty agreeing with defence counsel’s assertion that she may have. As she agreed with counsel’s suggestion she was to my mind accommodating. Any uncertainty that I may have had in regard to what if any damage or injury this complainant was capable of inflicting was resolved when Mr. MacKay smiled during his testimony after his first indication that the complainant punched him in or around February 2008 after he attended a strip bar.

And, as he smiled he said that he was not injured. I am satisfied that Mr. MacKay never at any material time regarded the complainant as someone who either caused or would cause him personal injury. [ 23 ] I also found Mr. MacKay’s memory to be selective. In particular, he demonstrated on many occasions an inability to recall specific facts that on occasion I thought should have been readily apparent. For example, where he was situated in the home on October 8, 2008 when Ms. St. Germaine first appeared apparently unannounced.

And while he testified that the complainant struck him, he was initially unable to give any indication of the number of times. Subsequently, on reflection, he offered up a rather unconvincingly number indicating that he must have been hit by her five times. And with that, he was unable to recall at what point during their struggle when she actually hit him. [ 24 ] On the whole of his narrative, there was no context. I was essentially left with a representative them that was devoid of

any real substance. In the end, I simply did not believe him. [ 25 ] Notwithstanding my rejection of the accused’s story, I must determine if I am nevertheless left with a reasonable doubt by it. The underlying premise I am invited to consider by the defence, in addition to the assertion that the events didn’t happen as indicated, is that the complainant was an uninvited guest who had been asked to leave. That she was irrational that evening and as she scrolled through Mr.

MacKay’s telephone call history he was within his rights to demand the return of the phone and attempt to remove it from her hand, and that but for her behaviour the struggle to retrieve his phone and get her out of the house would not have followed. That struggle included the indication that while Mr. McKay tried to ward off blows from the complainant, following a palm strike and the grabbing of his face, he took the time, after he wrestled her to the ground, to place the phone on the countertop.

One would think that following a palm strike to the face, the subsequent squeezing resulting in a scratch to his face and the struggle to the floor that followed would not have afforded Mr. MacKay with the opportunity to take such care as to be able to locate a convenient countertop to place the phone down on. Moreover, Mr. McKay was inconsistent following his initial indication of being struck with a palm strike to the face and subsequent squeezing as she held his phone away from him in her left hand. During cross-examination, Mr.

MacKay indicated at one point that the complainant actually had two phones in her hands, a cell phone and his home phone but apparently she placed her cell phone down on the breakfast bar before she gave him the palm strike to the face. And then there is the evidence concerning the scratch to his face. I don’t know how that injury was occasioned. Mr. Mackay was unable to say. He stated that he assumed it arose from when she grabbed him following the palm strike. Moreover, I am more than suspicious about the description provided by Mr.

MacKay in regard to how he was seated at the golf club and turned toward the complainant’s brother when he approached him a few days after the incident. This testimony struck me as less than frank account of that event. To my mind, his ability to recall this otherwise insignificant detail two years later was offered up as an explanation in response to the complainant’s brother’s indication that he did not notice any injuries to the accused when he spoke to him that day. And with all of this, it noteworthy that Mr.

MacKay was unable to provide any indication of where he was hit by the complainant, although he says that she struck him during the struggle and at best he can offer but a guess about the number of time she struck him that night. [ 26 ] In the end, I not only reject the Mr. Mackay’s narrative, but I am also not left with any reasonable doubt by any part of it. In the final analysis, I must consider the whole of the evidence and if I am left with a reasonable doubt, Mr.

MacKay must be acquitted. [ 27 ] It was argued that the crown’s case was unreliable for a variety of reasons, and in particular the evidence of the complainant herself. For example, the defence questioned why the complainant after the attack described by her would take the time to go to the bathroom and look in the mirror, rather than run out the door. And, moreover, why would she go into the bedroom where Mr. MacKay was situated after she saw her face swollen and sore. And, why would she return or pull back into the driveway to receive her pocketbook from her attacker.

I have absolutely no reservation in accepting this complainant’s evidence for why she did what she did. She not only explained why, but I found that her own logic and reasoning remained consistent throughout her testimony. [ 28 ] Ms. St. Germaine cared for Mr. MacKay and did not want to bring harm to him. She also wanted to avoid the embarrassment that she perceived would follow for both of them associated domestic violence. There can be no doubt that Ms. St. Germaine cared for Mr. MacKay in circumstances when one might expect that she should not have.

Her desire to protect him was ongoing and continued beyond the date when the information was laid. I accept Ms. St. Germaine’s evidence that she continued to care for him even after the charges were before the court and that she hoped that things could be worked out. Proof of all this is evident in that she initially tried to conceal her injuries when she went to work the next day. She never reported the assault to the police notwithstanding her brother’s indication that she should do so. She told the police, when they investigated in the first instance, that she didn’t want any part of a prosecution.

She refused to provide a statement to the police at that time. But she followed the advice or counsel of her close friend who was with her the day after, when she decided that it would be prudent to take pictures and outline a statement should the need arise in the event that Mr. MacKay injured her again in the future. Ms. St. Germaine clearly hoped that the relationship could be salvaged. I accept the complainant’s explanation for why she offered the photographs and her statement to the police nearly a year later at the courthouse.

She believed it would help to resolve the matter without the necessity of further prosecution. [ 29 ] I did not find a great deal of merit in the suggestion that other evidence adduced was not corroborative of the complainant’s story at all. In part this assertion was made because the complainant’s father saw only one black eye. What is clear to me is that Police Officer Anglin made observations shortly after the occurrence that were entirely consistent with the complainant’s testimony and the photographs she eventually produced. Similar, although less detailed, observations were made by Ms. St.

Germaine’s brother and father as well. The fact that her father only noticed one black eye does not mean that she did not have other injuries. Ms. St. Germaine father was forthright. He simply said that he noticed the one black eye. He was not asked, nor did he ever say that he examined her face or body or inspected her more closely. The complainant’s testimony, which I accept, was that she was trying to conceal the injuries and did not want to be embarrassed by them. This was clear from the outset when she went into the bathroom to look in the mirror after the incident, an observation also made by the accused.

She wore a hoodie to work the following day and tried to remain focussed on her work so as to not draw attention from her family. Mr. St. Germaine’s son had already informed him about what occurred. Did he really need to see more than one black eye? He was her father. He had heard and saw enough. He sent her home and called the police. [ 30 ] I am satisfied that there is corroborating evidence to support the complainant’s version of events from the investigating officer, the photographs and the complainant’s brother and father.

The accused’s assertion that he simply “rapped her on the head a couple of times” in the manner described by him could not have produced such injuries. In the end, I have considered the whole of the evidence and I am not left with a reasonable doubt as to Mr. MacKay’s guilt. I found the prosecution’s evidence to be compelling. I am satisfied beyond a reasonable doubt that Robert Donald MacKay assaulted Beth St.

Germaine as alleged on October 8, 2008 at the City of Windsor. [ 31 ] A finding of guilt will therefore be entered on count #1. [ 32 ] Insofar as count #2 is concerned, with respect to uttering the threat to cause bodily harm, Mr. MacKay testified that he did not make the threat as indicated but rather responded to a threat by the complainant, that she would have someone kill him. He testified that in response he told her that he would tie her up so she couldn’t leave. And this, he said, was a statement made by him in jest.

I could find no moment in time throughout this incident of October 8, 2008 when anyone was communicating in jest. However, I can

appreciate that Beth St. Germaine is certainly not someone who would be shy about expressing herself. She clearly demonstrated on more than one occasion during this relationship that she would voice her concern. For example; when she invited Ms. Truong over to discuss matters and then confronted Mr. MacKay when he returned home; and when she called back numbers she found on the accused’s telephone because she was suspicious of who he might be seeing; and when she told the accused during the assault that he was “fucking crazy” and added “I wish your mother could see who you really are”.

While I am not necessarily persuaded that the complainant made the first volley or statement threatening to have Mr. MacKay killed, having regard to the foregoing, such a remark may have been made by her. In the event the complainant made that statement, Mr. MacKay’s response to tie her up to prevent that from happening, might be reasonable or in any event, would not to my mind be sufficient to make out the offence of uttering a threat to cause bodily harm insofar as it would have been responsive to a perceived threat and an indication by the accused of his desire to prevent a potential harm.

While I have my doubts and suspect the exchange was more in line with what the complainant testified to, in regard to this count, I am left with a doubt. As such, count two will be marked dismissed. Delivered Orally, this 9 th day of December, 2010 ________________________________ Gregory A. Campbell Justice