R. v. Filipowicz, 2011 ONCJ 1

COURT FILE No.: Toronto Region Citation: R. v. Filipowicz, 2011 ONCJ 1ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) E. Rokach ) for the Crown ) — AND — ) ) ) WLODZIMIERZ FILIPOWICZ ) E. Starrer, A.

Harnett ) for the accused ) ) ) ) HEARD: October 14, 15, 2009, January 7,8, 12, May 3, 4, October 1, 14, 2010, January5, 2011 FELDMAN J.: Introduction [1] Wlodzimierz Filipowicz entered not guilty pleas to threaten death, forcible confinement, choking, mischief, assault with aweapon and multiple assault charges alleged to have been committed in a volatile domestic context during a four month period beginningin early December of 2007. At the end of the prosecution’s case, the Crown asked that three counts of assault, two of mischief and oneof choking be withdrawn.

The remaining counts are set out in the discussion below. [2] The Crown called the complainant, Emilia Filipowicz, and Andrew Pakula, a family friend, in support of its case. Thedefendant testified in his own behalf. [3] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burdenof proof on the prosecution. [4] I admitted narrative evidence that I found helped in understanding the nature of the relationship in the context of thealleged violence.

In deciding this issue, I was assisted by the defendant’s own admission that in his behaviour towards his nowestranged wife, he was on occasion childish, petulant or controlling and that he at times overreacted when differences arose. [5] Mr. Filipowicz is an accountant who has lived in Canada for 15 years. He resides in house owned by his parents wholive in Poland. In 2005, he met the complainant during a trip that country. They became involved and initially developed a long-distancerelationship. The defendant’s application on her behalf for a tourist visa to Canada was denied in April of 2005.

He returned to Polandand decided to marry the complainant, which he did in August. His parents questioned his impulsive decision to do so. Emilia arrived inCanada on May 13, 2006, where she began to study English. She became pregnant in February of 2007. Their son, Alex, was born inNovember. [6] Following the accused’s arrest, Ms. Filipowicz stayed in a shelter for 4 months. She now lives alone with her son. Heronly relative here is a cousin, Michil Jurkowski, a priest. The Evidence Narrative Evidence (

a) The Authorities [7] Evidence of prior discreditable conduct must be connected to the offences charged. Its probative value must outweigh itsprejudicial effect. There must also be a live issue to which it is relevant. [8] Narrative is one such issue. It improves the trier’s comprehension by presenting a total picture and makes it easier forthe witness to recount the evidence. Without its disclosure, significant testimony cannot be recounted meaningfully and fairly: R. v. Predie, [2009] O.J. No. 2720 (Ont. S.C.), referring to Paciaocco and Stuesser, The Law of Evidence, 5th Edition, Irwin Law, 2008, p. 45.

Narrative can support the inference that the defendant had a propensity to act towards the with complainant with animus. [9] Courts have frequently admitted such evidence to assist the trier in understanding the nature of the relationship in whichthe violence is said to have occurred: R. v. D.S.F.. (1999), (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.). These incidentsof propensity are all part of a continuum of conduct and need be proximate in time.

This evidence must indicate a strong disposition onthe part of the defendant to act abusively towards the complainant in circumstances of domestic disputes and be reasonably capable ofbelief by the trier. The Crown must demonstrate on a balance of probabilities that the probative value of the proferred evidenceoutweighs its prejudicial effect: R. v. Predie. (

b) The Evidence

[ 10 ] Ms. Filipowicz told the court that after the first month of marriage, the accused would begin arguments for little or no reason. She said he was at times verbally abusive, called her “white trash” and accused her of being a gold digger. She admitted sometimes responding “in the same ugly way”. [ 11 ] The complainant testified that her husband became quite upset when he learned she was pregnant. He wanted her to have an abortion. She refused. She said that night he choked her in anger by putting a pillow over her face and, as well, pushed her onto the floor.

She was relieved that after speaking to his mother the next day, the defendant settled down and accepted the fact he was to be a father. [ 12 ] Ms. Filipowicz also gave evidence that while pregnant and after having returned from a vacation to Poland with her husband where he was upset her family gave them no gifts and her aunt a used one, she taunted him that his own grandmother had gifted them with a used towel.

She said he responded by breaking the frame of their wedding picture in an outburst of anger. [ 13 ] The complainant also testified that the accused struck her leg with a belt when they returned home from their friend, Ella’s home. While there, she had told Ella’s father that her husband had a picture of his granddaughter on his computer. The defendant accused her of embarrassing him in implying he was a pervert. She also described a number of quarrels over her inability to breastfeed. [ 14 ] Ms. Filipowicz said that following his anger outbursts her husband could also be apologetic, attentive and helpful.

She was, however, unsettled by the force and unpredictability of his anger and hurt by his disparagement. The defendant denies any assaultive behaviour. [ 15 ] The complainant has described conduct in a marital context that is abusive, proximate in time to the allegations and in my view of the evidence reasonably capable of belief, not the least for reasons that include the defendant’s admission that he at times overreacted to pressure or conflict and acted inappropriately towards his wife. Mr.

Filipowicz would allow only that his interpersonal skills needed improvement and that he sometimes lost control of his feelings, superficial words that hint at, but tend to minimize bad behaviour. [ 16 ] This conclusion is reinforced by what the accused failed to concede, which on the evidence presents a clear inference that in collaboration with his mother, whose advice he constantly sought and upon whom he appeared to be emotionally dependent, he was deceitfully invasive of the complainant’s privacy when he recorded her telephone conversations during the subject period.

As well, as evinced in an email from his mother that was discovered by Emilia and produced in evidence, he was manipulative in planning to attack her character in a contrived manner in divorce proceedings so as to deprive her of her infant son or any funding despite her being alone, impecunious and without any meaningful family support in this country. These anticipated litigation tactics were as unfair as they were mean-spirited.

They demonstrate a controlling nature and support the inference of animus. [ 17 ] For these reasons, the Crown has satisfied me on a balance of probabilities that this narrative evidence is relevant and admissible for the limited purpose of understanding the marital relationship in the alleged domestic violence context. The Alleged Offences Assault (Count 6) [ 18 ] Ms. Filipowicz alleges that sometime during the month of December in 2007, in the course of an argument in their son’s room over her inability to provide breast milk, the defendant lifted up an electric space heater.

She told the court that it “seemed” like he wanted to throw it, but wasn’t sure. When she told him to put it down, he did so. [ 19 ] If the complainant is uncertain of his intention here, so too is the court. While it is probable on this evidence that the accused intended to at least intimidate his wife by this gesture, behaviour consistent with the narrative evidence, I am left in reasonable doubt by it. This charge will be dismissed. Forcible Confinement (Count 8); Assault (Count 9) [ 20 ] These allegations are also said to have occurred on one day during the same month.

Emilia recounted entering the defendant’s office eating a chocolate and being excoriated as selfish for not bring one for him as well. When she retrieved a chocolate for him, she said he threw it angrily against the wall. [ 21 ] Mr. Filipowicz explained his behaviour as upbraiding his wife for her “false intentions”, but conceded in a clear understatement that he perhaps overreacted. His petulance and pettiness over essentially nothing gives force to the narrative evidence and the inference of animus. [ 22 ] This demeanour carried over later on in the day to what has been described as the “washroom incident”. Ms.

Filipowicz testified that she was at the bathroom sink when the defendant came in and closed the door indicating they needed to talk, a request not inconsistent with his pattern of “overreacting”, as he had earlier that morning, and then apologizing. Mr.

Filipowicz told the court it was the complainant who followed him in raising her voice which made him close the door because their one-month old child was sleeping, having just been fed by his mother. [ 23 ] He said his wife was unable to open the door and claimed she ordered him to open it, yelling at him in a panic that their child was unsafe because he might choke on his milk. He ignored her, even laughing at her, later admitting he was perhaps insensitive in his response.

He was unable to explain why he refused to help her, even though he agreed that would have calmed her fears. [ 24 ] Unlike her testimony, the complainant told the police that she and her husband entered the washroom at about the same time. In my view of the evidence, this inconsistency should be viewed as peripheral, given the passage of time, and not a reliability concern.

What is clear is that in the course of one more argument in a deteriorating relationship, the defendant chose to ignore Emilia’s anxiety about her child and, if not blocking her attempt to leave, at least spitefully left her to her own devices. He agreed he should have

opened the door and admitted screaming in her face when she hit the mirror to get his attention. [ 25 ] At this point, it appears Mr. Filipowicz lost his indifference. He says he grabbed Emilia as she was about to hit the mirror again. The complainant testified that after she hit the mirror the accused took hold of her and pushed her towards the bathtub, but that she held onto the towel rack causing it to break off.

She said her husband then let her out of the washroom, but that she suffered bruising in her chest, bicep and waist areas in the course of her struggle to prevent him from forcing her into the bathtub. [ 26 ] In confirming that the complainant struck the mirror and broke the towel rack, the defendant lends support to Emilia’s claim that he obstructed her effort to leave the washroom and punished her for her assertiveness. Mr.

Filipowicz said he was merely ignoring her entreaties and offered that he likely made things worse, an explanation that in my view indicates the downplaying of a callous response on his part to his wife’s concerns. Assault x 5 (Counts 11, 14, 15, 16, and 18); Threaten Death (Count 13) [ 27 ] These multiple offences are alleged to have occurred on December 19, 2007.

It was a day described by the complainant as an extended one of petty arguments indicative of a failing relationship, hostility, lack of respect and a series of physical attacks by an angry accused, seemingly fuelled by phone calls to his mother and the complainant’s own biting response to that alliance. [ 28 ] By contrast, in his testimony, Mr. Filipowicz fell back on his usual minimizing ways, referring to his own physical behaviour as merely a “stupid overreaction”, indifferent in his telling to the impact on his target.

On this evidence, he was disingenuous in suggesting that while he may have run to his mother too much, he only discussed his problems with her in general terms.

This is belied by his informing her of the subsequent interception of his wife’s private calls and his collaboration with her in part on the basis of information gleaned from them, and that appeared in an email from his mother, referred to later on in this judgement, on ways to denigrate the complainant’s worthiness as a parent in divorce litigation with a view to deprive her of her child and leave her with no funds, raising questions about the defendant’s own character and on the evidence, his credibility. [ 29 ] December 19 was a day of escalating conflict.

In the early morning, the defendant admitted he reacted disproportionately in anger, this time to the complainant asking him to help decorate the Christmas tree. Once again, this 26-year old professional man called his mother to complain things weren’t working out. [ 30 ] Later that morning, the defendant came into his son’s bedroom where Emilia was changing her son’s diaper and sat on the couch. The complainant said she put her child’s dirty diaper in his lap expecting he would understand it belonged in the garbage can close by, initially indicating she actually told him to do so.

This latter discrepancy should be seen, as well, in the context of the passage of almost 3 years since this incident. [ 31 ] Ms. Filipowicz testified that in response, the accused stood up and held the urine soaked diaper against her face, causing her to briefly lose her breath before she pushed him off. [ 32 ] Mr. Filipowicz told the court he went in to his son’s room to make amends, as it seems was his pattern.

He said he became upset when Emilia placed a soiled diaper in his lap and explained, predictably, that he had another “stupid overreaction” when he stood up and threw the diaper toward the complainant at close range. On the evidence this was a violent response to a perceived affront by a man with a short fuse and building animus towards his wife. It is as a matter of common sense improbable on this evidence that his striking of Emilia’s face with the diaper, whether thrown or placed, was inadvertent. [ 33 ] Mr. Filipowicz spoke to his mother in Poland three times that day.

The complainant was upset with his discussing their personal issues and told him to stop calling her. In the course of their dispute over these phone calls about which they both claimed to have been threatened by the other, Emilia said the defendant insulted her deceased parents’ relationship and, provoked, she slapped him. [ 34 ] Following this, Emilia phoned Iwona Paklula, a friend of the Filipowicz family with whom she had developed a relationship, telling her what had happened. Ms. Pakula advised the complainant she should call the police in the event of a recurrence. Mr.

Filipowicz became aware she had called someone, thinking it might be her cousin. Emilia testified he threatened her that if her cousin, the priest, whom he called the “black devil”, came to the house he would kill them both. [ 35 ] The complainant told the court this frightened her. She again called Iwona, this time from outside the home, with a cordless phone. Mr. Filipowicz listened in on the conversation using the kitchen phone and then called his mother for advice.

After this, Emilia said she decided to hide the cordless phone so he would not call his mother again as she felt they should try to solve their problems themselves. [ 36 ] The complainant hid the phone in her son’s room and then sat in her husband’s office chair. He came in and demanded the phone. She refused to provide it. She testified that the defendant then pulled the chair from under her, causing her to fall and hit her head on the floor. Emilia is not sure how she next ended up in their bedroom, but believes she was pushed and claims the accused threw her down on the bed.

She said that each of the five times she got up, he pushed her back down. She recalls once landing on her knees on the floor but still refused to give up the phone. [ 37 ] Emilia told the court she only relented when the accused began to choke her. She said when he did this, it was hard for her to breathe. She scratched him on his forearm to break his hold.

She also suffered bleeding to her lower lip and on the inside gum, she believes, from biting her lip in the course of this struggle. [ 38 ] The complainant said she now feared for her safety and ran outside, taking only a fleece sweater, despite the cold weather, in order to escape the violence. Emilia testified that the defendant followed her downstairs and pushed her out the front door causing her to land on her buttocks on the garden hose and hit a wall. She told him he was finished, meaning, she said, that she would complain to the police.

[ 39 ] Mr. Filipowicz could not satisfactorily explain why when the portable phone was hidden he didn’t use the kitchen phone to call his mother, rather than aggressively confront his wife. He at first claimed he was concerned the phone was still on and Iwona might be listening. That was easily determined by picking up the land line, something he claimed did not enter his mind. It seems inferentially apparent on this evidence, rather, that the accused was, to use his words, overreacting to Emilia’s defiance. [ 40 ] Mr.

Filipowicz was seemingly unaware of the irony, if not tyranny, in being upset his wife looked to Iwona for outside advice despite his own dependence on his mother and in his attempt to control and isolate her in this way. [ 41 ] After fleeing the house, Emilia called Iwona and met her and her husband, Andrzej, or Andrew, at Iwona’s workplace. Andrew and his wife, from whom he is now estranged, had known the accused and his parents for over 20 years. He would visit the defendant about 2-3 times per year prior to the arrival of the complainant. He said he is not very close with Emilia. [ 42 ] Mr.

Pakula told the court he has never taken anyone’s side. His is the only independent evidence in this case and in relation to the essential elements of the alleged offences, it is solely of a circumstantial nature [ 43 ] When he first met her that day, Andrew observed that Emilia was crying, in distress and had a cut lip that was swollen. He was surprised she was not wearing a warmer jacket. Later they went to the Pakula home where Andrew called the accused asking permission to pick up the baby. Apparently Mr.

Filipowicz agreed, but later changed his mind when Emilia and Andrew drove to the Filipowicz home where they spent 2 ½ hours at night on the outside of the house trying without success to persuade the defendant to let Emilia have care of her son. The accused told her she should come home. Andrew heard the complainant tell her husband she was afraid to come back after what he did to her. He said she seemed genuinely scared. [ 44 ] Andrew and the complainant then went to the police station to see if they could help in getting her son back.

Andrew spoke with the accused from the station but could not persuade him to surrender the child. The police refused to take any steps without a criminal complaint being made. [ 45 ] While acting as a translator, Andrew heard Emilia tell police her husband had beaten her up, although she provided no details. Emilia seemed to Andrew to be confused and frightened and she refused to lay charges. She said she still cared for her husband and would not cause him to be in jail over Christmas.

He said he believed she only wanted help in getting her child back. [ 46 ] Andrew told the police that the defendant would not admit he beat up his wife, but indicated to him there had been a scuffle and he may have touched her by accident. The complainant did not tell Andrew how she got the cut lip or any other detail. [ 47 ] Andrew phoned the defendant’s parents who later spoke to their son. The next morning, Mr. Filipowicz called to say Emilia could have Alex. When they came over, he apologized to the complainant and asked her to stay.

When Andrew asked about the scratches on his arm, the accused said he deserved them. [ 48 ] Emilia stayed with the Pakulas until December 31. In the interim, she said the defendant sent her an email telling her she was the guilty party and that terrorists had kidnapped his son. The defendant testified that Emilia emailed him that he would not see Alex again. He refused an invitation for dinner to the Pakula home. [ 49 ] The complainant moved back in with her husband, she says, because she felt Alex needed both parents. For a while, they were distant with one another.

They then began to go for walks to work on their marriage. It was after this that the defendant put a listening device on their phone but claims not to have listened to all of Emilia’s calls. He said he believed the marriage was over as he couldn’t trust her and felt it best to separate, something he discussed with his mother during February and March, becoming firm in his decision to divorce by mid-March. [ 50 ] Mr. Filipowicz testified that his wife was the unstable one in the marriage.

He said once when he was late coming home so that his wife was unable to attend a Church Mass in honour of her late mother, she spilled water on him. He also said that on another occasion she was upset with him and threw a Kleenex in his direction. Emilia did not dispute this evidence. [ 51 ] Mr. Filipowicz agreed that the invasion of his wife’s privacy was despicable, in my view of the evidence, a tactical concession, similar to his strategic use of such words as ‘immature’ and ‘overreaction’ to gloss over both his controlling nature and emotional abuse of the complainant.

He justified the interceptions on the basis that he needed to protect his interests as his wife, he says, had used the threat of criminal charges to gain custody over their son. And yet, it was the complainant who refused to lay charges and came back home despite her fears, being subject to the defendant’s deceitful behaviour. Even his then counsel wanted nothing to do with the phone interceptions. [ 52 ] It is difficult to accept in this context Mr.

Filipowicz’s incoherent explanation for intercepting his wife’s phone calls, telling the court that he had to know whether Emilia still loved him and if a divorce was a mistake. While he said he hoped to hear on the tapes in April that she had changed, this does not fit with his testimony that he had made a firm decision in mid-March to divorce his wife whom he had previously labelled as crazy and untrustworthy.

It is also difficult to reconcile his evidence that he was keeping an open mind with his testimony that following service of the divorce papers on Emilia in early April, he wanted to see how she reacted, permitting the inference, in light of the disturbing email exchange with his mother, that he was building up his litigation case. [ 53 ] In essence, with the help, if not guidance of his mother, Mr.

Filipowicz was preparing to lay the groundwork for having every advantage such tactics could provide over a vulnerable woman, effectively alone in this country, with limited knowledge of the judicial system and with limited resources. The fact he admitted taking pictures of his injuries in anticipation of litigation indicates, despite his self-serving evidence to the contrary, his focus. Assault (Count 1) [ 54 ] On April 9, the defendant had Emilia served with divorce papers in which he was seeking custody of Alex and, absurdly, support.

She said he told her that it was done to scare her, but that they would continue to work on reconciling their differences. Mr.

Filipowicz denies he said that. [55] On April 20, Emilia looked in her husband’s wallet for some calling cards with which to call home. She says she found anemail exchange between the defendant and his mother in which it became clear her husband was going to war with her in the proposeddivorce proceedings. In it, he asked his parents for some “killer points” as to why he should have custody and he labelled her as ‘crazy’. Emilia testified his mother wrote that the complainant was a “very good candidate for being white trash”.

Alone in this country, she wason her way out, she believed, betrayed by a deceitful husband and mother-in-law whom she viewed as having an unhealthy involvementin the marriage and its demise. She said she was shocked by what she read and troubled by the “tricks behind her back”. She saw thestrategic value in retaining the email. [56] Emilia confronted her husband. Nasty words were exchanged. Mr. Filipowicz attempted to take back the email, wrestlingwith her to regain control, no doubt aware of its significance in the litigation.

In the fracas he tore off part of it but the complainant heldonto the rest and ran to the kitchen. The defendant knew he had a hard copy on his computer, but persisted in going after his wife,disingenuously denying in his evidence any concern his wife could use the email against him in the proceedings he had initiated. [57] Realizing he was exposed, the defendant was clever, telling Emilia he would call the police, he says, to document whathappened.

He knew, admitting later in his evidence, that the complainant feared the involvement of the police might result in having herson taken from her and placed with the C.A.S. She tried to prevent him from calling or from leaving. At one point she said thedefendant pushed her down on the floor when she stood in front of the door. [58] When he tugged at her pants in an attempt to retrieve the email, the accused ripped Emilia’s pant pockets, suggestingunconvincingly that he was merely trying to calm her down.

When she ran from him into the living room, she tripped over telephonecables and injured herself in the process. Mr. Filipowicz was callous in ignoring her plea for help and left the house. He reluctantlyconceded in evidence that having his neighbour call the police was in part pre-emptive as the torn pockets had the potential to place himin legal jeopardy should his wife make a criminal complaint. [59] Emilia called her friends, Ella and Anjay, for support. She spoke to the police following which charges were laid.

The Reasonable Doubt Standard [60] I am mindful that the burden of proof rests on the prosecution throughout the trial and never shifts to the accused: R. v.Lifchus (1997), (SCC), 118 C.C.C. (3d) 1 (S.C.C.). [61] The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of thepresumption of innocence. This standard has been described as proof to a near certainty: R. v.

Starr, 2000 SCC 40. [62] There is no corroboration of the material elements of the multiple allegations, although there is some independentcircumstantial support for the complainant’s evidence in relation to the events of December 19-20. [63] Where credibility is important, as in this case, the Supreme Court requires that the rule of reasonable doubt be applied tothat issue: R. v. W.(D.), (SCC), [1991] 1 SCR 742, 63 C.C.C. (3d) 397.

In W.(D.), Cory J. directed trial judges to acquitif the evidence of the accused is believed or if he or she is left in reasonable doubt by it, even if the judge does not believe that evidence.

Importantly, the court is obliged to ask itself, even if not left in reasonable doubt by the evidence of the accused, whether it is convincedbeyond a reasonable doubt of the accused’s guilt on the balance of the evidence it does accept. [64] In this analysis, rejection of an accused’s evidence may be derived from a “considered and reasoned acceptance beyond areasonable doubt of the truth of conflicting credible evidence”, but not on the basis of preferring the worth of one over the other: R. v.J.J.R.D., (ON CA), [2006] O.J. No. 4749 (Ont. C.A.); R. v. Maharaj (2004), (ON CA), 186C.C.C. (3d) 247 (Ont.

C.A.). [65] The trier of fact is entitled to assess an accused’s testimony in light of the whole evidence, including the testimony of thecomplainant, and in so doing comparing the evidence of the witnesses: R. v. Hull, (ON CA), [2006] O.J. No. 3177(Ont. C.A.).

In fact, the court made reference in this regard to the “positive duty to carry out such an assessment” given the possibilitythat the judge may be left in reasonable doubt about the guilt of the accused. [66] In a thoughtful analysis of these authorities and this issue, given the difficult application of W.(D.) principles to the standardof proof where there is one complainant and one accused (and his witnesses), Justice Duncan came to a conclusion with which Irespectfully agree both in logic and principle, that “a trial judge can reject the evidence of an accused and convict solely on the basis ofhis acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fair assessment and allowsfor the possibility of being left in doubt, notwithstanding his acceptance of the complainant’s evidence: R. v.

Jaura, 2006 ONCJ 385. Findings of Credibility and Fact [67] Upon a review of the entirety of the evidence, I found the complainant to be a straightforward and believable witness. Hercredibility was enhanced by the narrative evidence that was itself augmented by the defendant’s admission that he was capable of losinghis feelings and overreacting to the challenges of living with Emilia. These latter calculated words support the inference, as thecomplainant alleges, that some of their difference would lead, often unpredictably to responses fuelled by animus.

The evidenceindicates it likely, in addition, that the defendant was inflamed in his admitted petulance by his mother’s influence, apparent in the emailexchange with her. [68] The complainant was at times an emotional witness, but was, in my view, forthright about her own assertiveness whenprovoked. In this regard, she was under the stress of a failing marriage, alone in this country with poor language and employment skills. She was dependent on a man with a controlling nature.

Her hesitance, until April 20, in charging the accused indicates a lack of animuson her part and permits the inference she cared about her husband and wanted their marriage to work.

[ 69 ] In my view of the evidence, the complainant was not seriously challenged on the material issues of fact, although there is no direct, and only some circumstantial corroboration of her testimony. As noted earlier, inconsistencies raised in relation to her testimony were mostly peripheral and likely attributable to the passage of time. [ 70 ] By contrast, I would not rely on the evidence of the accused. His testimony was often strategic, for example, excusing his bad behaviour as stemming from immaturity, poor interpersonal skills and “loss of all feelings”, minimizing words all.

He was subtle in denigrating the complainant, but not so much in the email exchange with his mother. He was deceitful in intercepting his wife’s personal calls and unconvincing in justifying it. The explanations for his outbursts were in my view of the evidence exercises in self-apology. [ 71 ] For example, I accept the complainant’s assertion that her inability to breast feed upset her husband and mother-in-law and they let her know it. In fact, she says the defendant’s upset over that fact was part of the context involving the space heater incident. Mr.

Filipowicz told the court this was never an issue for him personally, but was a consideration for his lawyer in relation to custody being granted him. In light of the evidence, including the email exchange, I view the accused’s evidence in this regard as contrived and self-serving and I reject it. [ 72 ] In the subsequent portions of this judgment, I make reference to other examples in the evidence that weigh poorly on the credibility of the defendant, all of which have contributed to the conclusion that I would not rely on his testimony.

The Events of December 1-31(Forcible Confinement, Assault) [ 73 ] These circumstances demonstrated the defendant’s quick temper and intimidating presence when upset with his wife. His reaction was often disproportionate to the perceived slight. This was apparent in his aggressive response in the morning of the day in question to Emilia failing to bring him a chocolate.

There could be no explanation for such behaviour beyond animus. [ 74 ] In recounting the washroom incident, the accused corroborated the complainant’s testimony that she was in a panic about her son, conceded that he laughed at her fears and refused to help open the door, agrees she banged on the mirror and that he shook her, he says, to prevent a repetition and stop her screaming and said Emilia grabbed onto the towel rack, all of which supports the inference that Emilia broke the rack while she resisted being forced into the bathtub. [ 75 ] Were the defendant truly concerned about Emilia’s panic or the noise waking the baby, as he suggests, he would have opened the door, as he conceded, but instead was coldly indifferent to her fears.

I draw the inference, rather, that the accused angrily responded to the complainant’s belligerence and shook, then pushed her, despite her resistance, towards the bathtub. I am not left in reasonable doubt on this evidence that his response was physically punishing and in my view of the circumstances, excessive, given his alternatives. It is apparent that animus informed his aggression. The degree of force applied here tends to support the injuries described by the complainant. I reject the accused’s self-serving testimony that he was saving the complainant from herself.

In the result, I find him guilty of assault. [ 76 ] I take a different view of the forcible confinement charge. I consider it probable but am left in reasonable doubt by the evidence that Mr. Filipowicz intended to confine his wife. Rather, I infer he was merely indifferent as he was about her plight until her panic piqued his resentment and anger. That charge will be dismissed. December 19-20 (Assault x 5, Threaten Death) [ 77 ] December 19 was a day of escalating anger on the part the accused. It led to his self-described “stupid overreaction” to his wife placing a soiled diaper in his lap.

As noted earlier, I reject the defendant’s implausible explanation for accidentally throwing the diaper in Emilia’s face, in part as a matter of common sense and as well because I am not left in reasonable doubt by the complainant’s version. On all the evidence, I am satisfied to the requisite standard that Mr. Filipowicz held the diaper to the complainant’s face intending in anger to cause her revulsion while at the same time demeaning her, satisfying the elements of an assault.

He will be found guilty of that offence. [ 78 ] Later on in the day, there was also no need for the defendant to go after the complainant to recover the portable phone, as he admitted he did. He could have used the kitchen phone to determine if the line was still open or to call his mother.

Rather, on the evidence, I infer he manhandled Emilia for her defiance, again in anger, as part of one more overreaction. [ 79 ] In the circumstances, I reject the accused’s evidence that he merely picked the complainant up from the chair in his office, in part, because on the evidence I accept the complainant’s testimony that he pulled the chair from under her. I find him guilty of that assault. [ 80 ] The bedroom fracas is less clear with the respective versions quite distinct. Emilia gave up the phone after a struggle in which the defendant was left with scratches on his arm.

It is probable the accused assaulted and choked the complainant as she alleges. The fact she fled her home without a coat into cold weather, together with the fear and distress noted later by Mr. Pakula, gives rise to that inference.

However, unlike the previous assaults that day, in relation to which most of the material facts were not in dispute, subject only to a number of transparently self-serving qualifications by the accused, it would be unsafe on a reasonable doubt basis without other corroborating evidence to determine what went on in the bedroom or at the front door of the house. [ 81 ] For reasons noted earlier, I accept Mr.

Pakula’s straightforward observations that Emilia was reasonable in dealing with her husband later on that night in a negotiation to have him release Alex to her and that she remained fearful the next day when they went to the house to pick up her son, all of which tends to buttress the complainant’s credibility, as does her lack of animus in refusing to lay charges. [ 82 ] By contrast, I view the defendant as manipulative in initially refusing to release his son in order to get his wife to come back home, as he was in his testimony, projecting himself as a victim while denigrating his wife’s motives and stability. [ 83 ] It is telling that Mr.

Filipowicz made sure he told Andrew he may have touched the complainant by accident, in my view

of the evidence, a transparently self-serving explanation that was inconsistent with the defendant’s subsequent testimony that he lifted Emilia out of his chair. I have relied on Mr. Pakula’s evidence in the weighing analysis of the events of December 19-20. April 20 (Assault) [ 84 ] The day after being served with divorce papers, Emilia told Iwona she was “scared”. On April 20, her husband was aware she was afraid of losing her child were he to call the police. She had reason to be afraid.

He was setting her up to fail in divorce litigation. [ 85 ] As indicated earlier, the defendant’s use of telephone interceptions in these circumstances reflect negatively on his character. His shifting reasons for their use diminish his credibility. He says, unconvincingly on the evidence, that he did not initiate their implementation to advantage his litigation interests although he discussed them with his lawyer. He told the court that by January he thought his wife was crazy and by mid-March he had made a firm decision to divorce her.

Yet he justified the use of wiretapping into April, he says, to see if he was making a mistake and could save the marriage. His explanations are internally inconsistent. I reject his evidence in this regard. [ 86 ] In relation to the email, I infer the defendant understood its strategic value which explains why he chased after Emilia and ripped her pockets in attempting to search her. To suggest he put his fingers in her pockets to calm her is as bizarre as is his statement that he tried to call 911 for the same reason.

Rather, as he reluctantly conceded, he recognized the need to pre-empt anything she might say to the police. The animus motivating the accused’s behaviour was apparent once again when he left his wife seemingly in pain on the floor after her fall. [ 87 ] I view the allegation of assault in this context. I accept the complainant’s evidence that she was pushed in the chest. But I am mindful there was also physical contact between the parties when the complainant tried to stop her husband from calling the police and also prevent his leaving the house. Mr.

Filipowicz was entitled to move about freely, whatever his motive. The question to be determined is whether the push was excessive in the circumstances. Given the defendant’s much larger frame and intensity, that is probably the case. But on this evidence, without more, I cannot be sure of this to the near certainty required and am left in reasonable doubt by it. That charge will be dismissed. Conclusion [ 88 ] In the result, Mr. Filipowicz will be found guilt of three counts of assault, as set out in counts 6, 10 and 11. All other charges are dismissed. Released: January 5, 2011 Signed: “Justice L. Feldman”