R. v. MacDonald Date:, 2011 BCPC 453

Citation: R. v. MacDonald Date: 20111003 2011 BCPC 0453 File No: 56032 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRUCE WILLIAM MACDONALD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. FRATKIN Counsel for the Crown: K. Murphy Counsel for the Defendant: R. Debou Place of Hearing: Richmond , B.C. Dates of Hearing: August 23 and September 1, 2011 Date of Judgment: October 3, 2011

[ 1 ] On April 11, 2011, in Richmond B.C., Bruce William MacDonald (the accused) entered guilty pleas to the charges described below, which were contained in Information #56032-KC3. Counsel sentence submissions were heard and decision was reserved until today. A. CHARGES: Count 1 : Bruce William MACDONALD, between the 10 th day of September, 2010, and the 3 rd day of October, 2010, at or near Richmond, in the Province of British Columbia, did knowingly utter a threat to Farah Dubash, to cause death or bodily harm to Karl Zeeso, contrary to

Section 264.1(1) of the Criminal Code . Count 2 : Bruce William MACDONALD, on or about the 1 st day of October, 2010, at or near Richmond, in the Province of British Columbia, did knowingly utter a threat to Karl Zeeso, to cause death or bodily harm to Karl Zeeso, contrary to

Section 264.1(1) of the Criminal Code . Count 3 : Bruce William MACDONALD, on or about the 2 nd day of October, 2010, at or near Richmond, in the Province of British Columbia, did commit assault of another person, Farah Dubash, contrary to

Section 266 of the Criminal Code . Count 4 : Bruce William MACDONALD, on or about the 2nd day of October, 2010, at or near Richmond, in the Province of British Columbia, did knowingly utter a threat to Farah Dubash, to cause death or bodily harm to Farah Dubash, contrary to

Section 264.1(1) of the Criminal Code .

Count 5 : Bruce William MACDONALD, on or about the 4 th day of November, 2010, at or near Richmond, in the Province of British Columbia, being at large on an Undertaking entered into before a Justice or Judge and being bound to comply with a condition of that Undertaking as directed by a Justice or a Judge, did fail without lawful excuse to comply with the following condition or direction: amended condition #2, You are to have no contact directly or indirectly with Farah Dubash save and except you may have contact in the presence of their respective solicitors in the context of family law proceedings and/or Collaborative Law negotiations and to allow contact between the applicant and complainant in the presence of their respective solicitors through the initiation of legal proceedings in the Supreme Court of British Columbia, contrary to Section 145(3) of the Criminal Code .

Count 6 : Bruce William MACDONALD, on or about the 26 th day of November, 2010, at or near Richmond, in the Province of British Columbia, did commit aggravated assault of Farah Dubash, contrary to Section 268(2) of the Criminal Code . Count 7 : Bruce William MACDONALD, on or about the 26 th day of November, 2010, at or near Richmond, in the Province of British Columbia, did commit aggravated assault of Karl Zeeso, contrary to Section 268(2) of the Criminal Code .

Count 8 : Bruce William MACDONALD, on or about the 26 th day of November, 2010, at or near Richmond, in the Province of British Columbia, did break and enter a dwelling house, situate at 611 – 9320 Parksville Drive, with intent to commit an indictable offence therein, contrary to Section 348(1) (

d) of the Criminal Code .

Count 9 : Bruce William MACDONALD, on or about the 26 th day of November, 2010, at or near Richmond, in the Province of British Columbia, being at large on a Recognizance entered into before a Justice or Judge and being bound to comply with a condition of that Recognizance as directed by a Justice or a Judge, did fail without lawful excuse to comply with the following condition or direction: Condition #3, You are to have no contact directly or indirectly with Farah Dubash save and except you may have contact in the presence of their respective solicitors in the context of family law proceedings and/or Collaborative Law negotiations and to allow contact between the applicant and complainant in the presence of their respective solicitors through the initiation of legal proceedings in the Supreme Court of British Columbia, contrary to Section 145(3) of the Criminal Code .

Count 10 : Bruce William MACDONALD, on or about the 26 th day of November, 2010, at or near Richmond, in the Province of British Columbia, being at large on a Recognizance entered into before a Justice or Judge and being bound to comply with a condition of that Recognizance as directed by a Justice or a Judge, did fail without lawful excuse to comply with the following condition or direction: Condition #4, Ross MacDonald is to accompany Mr. MacDonald (the accused) at any time that he is outside his residence, contrary to Section 145(3) of the Criminal Code .

Count 11 : Bruce William MACDONALD, on or about the 26 th day of November, 2010, at or near Richmond, in the Province of British Columbia, being at large on a Recognizance entered into before a Justice or Judge and being bound to comply with a condition of that Recognizance as directed by a Justice or a Judge, did fail without lawful excuse to comply with the following condition or direction: Condition #9, You must not attend at Farah Dubash, Cole Hallgarth, Yasmine Berg, or Dominique Berg’s residence, place of employment, or educational facility, contrary to Section 145(3) of the Criminal Code .

Count 12 : Bruce William MACDONALD, on or about the 26 th day of November, 2010, at or near Richmond, in the Province of British Columbia, being at large on a Recognizance entered into before a Justice or Judge and being bound to comply with a condition of that Recognizance as directed by a Justice or a Judge, did fail without lawful excuse to comply with the following condition or direction: Condition #12, You are prohibited from possessing any weapons including any imitation weapons as defined in the Criminal Code , contrary to Section 145(3) of the Criminal Code . B.

CRIMINAL CODE TERMS OF IMPRISONMENT AVAILABLE:

[ 2 ] Every one who commits an indictable offence is liable to a term of imprisonment: s. 268: Aggravated Assault: for a term not exceeding fourteen (14) years s. 264.1(1): Uttering Threats: for a term not exceeding five (5) years s. 266: Assault: for a term not exceeding five (5) years s. 145(3): Breach of Recognizance: for a term not exceeding two (2) years s. 348(1)(d): Breaking and Entering a Dwelling-House: for life C. JUDICIAL INTERIM RELEASE: [ 3 ] Mr. MacDonald has been in custody since November 26-27, 2010, the date of his arrest. The accused applied for judicial interim release from custody on February 4 th , 2011. His request was denied on that date. D. FACTS: [ 4 ] Pursuant to

Section 655 of the Criminal Code , Mr. Debou, on behalf Mr. MacDonald, admitted the following facts for the purpose of dispensing with the proof thereof. The admissions are filed as Exhibit 1. They are as follows:

(1) Farah Dubash (DUBASH) and Bruce MacDonald (MACDONALD) met one another in 2003 and began living together around March 2004. They were subsequently married.

(2) MACDONALD and DUBASH do not have children together. DUBASH has one child, Cole Hallgarth, who is fourteen years old.

(3) In about March of 2010, DUBASH met Karl ZEESO (ZEESO) and began an affair with him.

(4) MACDONALD became suspicious that DUBASH was having an affair. MACDONALD convinced Cole Hallgarth to provide his mother’s computer password, which Cole Hallgarth did, and through a search of her computer and e-mails, MACDONALD confirmed that DUBASH was having an affair with ZEESO.

(5) About mid-September, MACDONALD confronted DUBASH who admitted to the affair. Mid-Sept. – Oct. 1, 2010:

(6) After MACDONALD learned of the affair, he became increasingly obsessive in his behaviour towards DUBASH.

(7) Between the time that MACDONALD learned of the affair and September 31, 2010, MACDONALD told DUBASH that if she left him that he would kill ZEESO. He told her that if she ever left him, he was going to find her. He told her “ you’ll never get away from me... I’m gonna kill this guy in the States... I know everything about him. I already know his name. I know everything about him .” MACDONALD further told DUBASH “ I’ve had a chip on your phone... I put a chip in your cell phone and I have all you conversations ”.

(8) MACDONALD urged DUBASH to go for therapy and advised her that her problems were because of medication she was on. DUBASH tried to calm the situation down by agreeing with MACDONALD that she would go for therapy.

(9) Between September 25 and September 31, 2010, DUBASH was in bed with MACDONALD at their residence at 8351 Seafair Drive, Richmond B.C. (the “Residence”) and he put his arms around her from behind and squeezed her really tightly. MACDONALD told DUBASH “if you ever leave me for this guy (ZEESO) I will just kill him. He’ll be dead .” MACDONALD told DUBASH that he had connections with the Hells’ Angels and that MACDONALD knew where ZEESO lived and knew he worked at Microsoft.

(10) DUBASH was concerned for the safety of ZEESO and, as a result, in the last week of September 2010, DUBASH and ZEESO had agreed not to see each other until she left MACDONALD. Oct. 1 - 2, 2010:

(11) In the evening of Oct. 1, 2010, ZEESO received a phone call from MACDONALD. ZEESO opined that MACDONALD had been drinking alcohol. The phone call lasted about forty minutes and MACDONALD repeatedly told ZEESO that he would kill ZEESO if he continued to see DUBASH. ZEESO told MACDONALD that he would not see DUBASH until either MACDONALD and DUBASH fixed the relationship, in which case ZEESO would not see DUBASH again, or the relationship between DUBASH and MACDONALD was over, in which case if it was over, then ZEESO would see DUBASH again.

MACDONALD told ZEESO that it didn’t matter if DUBASH was with any other guy after MACDONALD as long as it’s not ZEESO. MACDONALD said “ because if so, I will hunt you down and I will kill you ”. MACDONALD told ZEESO that he was going to send his Hells Angels friends to get him and that he would hunt him down and ruin his life. MACDONALD said “ I’ll kill you and I’ll go to jail or prison and I just don’t care. That’s just how I am ”. ZEESO told MACDONALD “ you’re not gonna kill me ” and MACDONALD insisted he would and he would spend his life in prison.

(12) DUBASH was out with girlfriends socializing in the evening of October 1, 2010 when she received a phone call from ZEESO. ZEESO advised her that MACDONALD had called him that evening and threatened to kill him. ZEESO was concerned for DUBASH’s safety and related the conversation and the nature of the death threats made by MACDONALD to ZEESO.

(13) DUBASH returned to the Residence around midnight and confronted MACDONALD, telling him that she couldn’t handle him threatening people and advising MACDONALD that she was leaving him.

(14) MACDONALD pulled DUBASH onto the bed and jumped on top of her with his legs on either side of her and choked her by putting his hands around her neck and pressing his thumbs into her neck. DUBASH struggled against MACDONALD and he told her if she didn’t stop moving her head, he was going to punch her in the head and then he did.

(15) During the choking DUBASH tried to push MACDONALD off her three times.

(16) During the choking, MACDONALD told DUBASH “ I’m gonna kill you ”. MACDONALD said “ if I can’t have you no one can ” and finally “ I’m going to have to finish you off now because if I don’t you’ll never forgive me ”. DUBASH blacked out and then regained consciousness during the choking.

(17) DUBASH struggled against MACDONALD and was finally able to free herself from him.

(18) At about 12:30 a.m. and unbeknownst to MACDONALD, DUBASH phoned 911 and reported that her husband was choking her. The phone line was left open. The call was recorded and MACDONALD is heard to say he will kill him, in reference to ZEESO; DUBASH responded by saying to MACDONALD that he won’t and MACDONALD confirmed that he will. The call was disconnected and police attempted to call back, but it was not picked up and went to recorded message.

(19) DUBASH barricaded herself inside the bathroom by locking the door and putting her back to the door and bracing herself with her legs. MACDONALD continued to pound on the door and told her when he got inside, he was going to kill her.

(20) About 12:40 a.m., police arrived at the Residence. Police could hear loud noises coming from within the Residence and a female could be heard screaming from inside.

(21) Police loudly announced their presence, however no one answered the door and police could still hear noises from inside. Police then kicked the door of the Residence three times and DUBASH ran outside exclaiming that her husband tried to kill her. She was sobbing loudly while holding her throat. Police observed DUBASH to be in a state of extreme distress; she was crying and hysterical. DUBASH stated that MACDONALD was going to kill her. Police observed redness to DUBASH’s throat area.

(22) Police spoke to MACDONALD who advised that the two had become involved in a fight over the fact that DUBASH had been having an extra marital affair. MACDONALD stated he did something he should not have. He said he grabbed her by the throat and told her he was going to kill her. MACDONALD further explained to police that he had been living through hell for the past six weeks since he discovered his wife had cheated on him. He was upset due to the fact that he has spent thousands of dollars on expensive cars and plastic surgery for his wife and that he just “ lost it ” that night.

(23) Police observed that MACDONALD’s face was very red and police detected a strong odour of liquor from his breath.

(24) Police observed that the bathroom door in question had been forced open. The frame to the door was broken by the latch of the door handle lock; the latch plate was lying on the ground and there were wooden fragments in front of the door.

(25) A Medical Doctor, Dr. Colin Horricks, assessed DUBASH and found that DUBASH had sustained multiple bruising over her left and right anterior shoulders, chest, right elbow and anterior neck as well as left lateral calf. DUBASH had pain in her throat and discomfort while swallowing and soreness of the left side of her head. She had a contusion of her left parietal area of her scalp. Regarding examination of her cervical spine, all movements were decreased and precipitated discomfort. She complained of headache. She was tender bilaterally in the upper, mid and lower paracervical muscle groups.

She was tender in the supra and medialscapular areas bilaterally. She was tender in the right and left, mid parathoracic area and rotation did aggravate her discomfort. Dr. Horricks’ assessment on October 5, 2010 was that DUBASH “ had sustained multiple bruising, cervical and thoracic strain secondary to an assault situation on the morning of October 2, 2010 ”. He recommended she attend for physiotherapy, take Tylenol #3 to control her body pain and take medication at bedtime for a more settled sleep.

(26) In relation to the Oct. 2, 2010 incident, MACDONALD was released on an Undertaking Given to a Justice or a Judge (Attached to these Admissions of Fact at Tab 1) containing a number of conditions. One of the conditions (Condition #2) was that he was to have no contact directly or indirectly with Farah Dubash; this condition was amended on Oct. 20, 2010 to allow contact only in the context of family law proceedings or Collaborative Law negotiations and in the presence of their respective lawyers. Condition #3 was that MACDONALD was not to attend at any place of residence or employment of DUBASH.

(27) Between October 18 and October 26, 2010 DUBASH discovered that MACDONALD had purchased a GPS tracking device. MACDONALD made the purchase October 18, 2010. Nov. 4, 2010

(28) DUBASH moved into a new residence at Unit 611 - 9320 Parksville Drive, Richmond B.C. (the “Apartment”) at the beginning of November 2010 that, as far as DUBASH was aware, was unknown to MACDONALD.

(29) On Nov.4, 2010 at about 7 p.m., DUBASH left the Apartment to go pick up her son. As she was walking to her vehicle, MACDONALD drove up to within a few feet of her. DUBASH asked MACDONALD what he was doing there; MACDONALD said he came to thank DUBASH for getting his mail to him. DUBASH asked him how he knew where she lived and MACDONALD responded by saying “ I know everything about you, where you go, what you do, who you see, and I can get you ”. DUBASH dialled 911 on her cell phone.

(30) MACDONALD was subsequently arrested on Nov.10, 2010 in relation to the incident on Nov.4, 2010.

(31) On Nov.12, 2010, after a judicial interim release hearing, MACDONALD was released on a Recognizance of Bail including a named surety, his brother Ross MacDonald. The Recognizance (attached to these Admissions of Fact at Tab 2) contained a number of conditions including:

a) That MACDONALD was to have no contact directly or indirectly with DUBASH save and except contact in the presence of their lawyers and for the purposes of family law proceedings or collaborative law negotiations (Condition #3).

b) That MACDONALD was not to be outside his residence unless in the company of his brother, Ross MacDonald (Condition #4)

c) That MACDONALD was not to attend at any residence of DUBASH (Condition #9).

d) That MACDONALD was not to possess any weapons (Condition #12).

(32) Unbeknownst to DUBASH, MACDONALD had tampered with her e-mail settings, so that her e-mails were being forwarded and subsequently accessed by MACDONALD. MACDONALD was able to learn personal information about DUBASH through this means. This was detected by DUBASH after Nov.4, 2010 and prior to Nov.26, 2010. Nov.25-26, 2010:

(33) On November 25, 2010, MACDONALD left the Residence, and was not in the company of Ross MacDonald, from between 12:30 p.m. and 2:00 p.m. until 7:30 or 8:00 p.m.

(34) Between November 18, 2010 and November 25, 2010, MACDONALD was served legal papers setting out the address of the Apartment where DUBASH now resided. MACDONALD wanted to see exactly where she lived and on Nov.25, 2010, MACDONALD attended 9320 Parksville Drive, Richmond B.C. (the “Apartment Building”) to ascertain which one was DUBASH’s Apartment. He brought binoculars and observed the Apartment Building; he saw a male on the balcony of the Apartment with DUBASH.

(35) MACDONALD returned home and couldn’t sleep. He was enraged at ZEESO for ruining his life and decided to return to the Apartment Building.

(36) On November 26, 2010 at around 02:00 hours, MACDONALD climbed the outside balconies of the Apartment Building.

(37) MACDONALD brought gloves to assist him in gripping the balcony railings while climbing, however abandoned use of them part-way through as they impeded his grip.

(38) MACDONALD brought a wooden baseball bat with him, which he attached to his person during the climb with a string affixed to the handle of the bat.

(39) He scaled the balconies up to the 6 th floor to the Apartment. (Attached at Tab 3 of the Admissions of Fact are photographs of the Apartment Building and the balcony of the Apartment).

(40) MACDONALD removed his shoes, leaving them on the balcony of the Apartment and snuck into the Apartment through the sliding glass door on the balcony, that had been left unlocked.

(41) MACDONALD walked through the Apartment to the bedroom, where DUBASH and ZEESO were sleeping.

(42) Lights had been left on in the Apartment and the television set in the bedroom was also turned on.

(43) DUBASH and ZEESO awoke to MACDONALD striking them with a baseball bat. MACDONALD did not say anything

during the attack, but made guttural noises or grunts while striking ZEESO and DUBASH.

(44) MACDONALD struck multiple blows to DUBASH’s head and body.

(45) MACDONALD struck multiple blows to ZEESO’s head and body.

(46) ZEESO struggled to defend himself and DUBASH from the blows by grabbing at the bat and attempting to disarm MACDONALD.

(47) ZEESO began the struggle with MACDONALD in the bedroom and it continued through the Apartment into the living room.

(48) During the struggle, DUBASH managed to escape and fled from the Apartment and began frantically knocking on neighbours’ doors in the hallway and crying for help.

(49) ZEESO and MACDONALD ended up in the common hallway outside the Apartment and crashed into a window causing it to break.

(50) MACDONALD fled down a fire exit, leaving the baseball bat behind.

(51) MACDONALD fled the Apartment Building knowing that both ZEESO and DUBASH had received serious blows and were bleeding profusely. MACDONALD did not call for any emergency help to attend to ZEESO and DUBASH and did not stay to offer any assistance himself.

(52) MACDONALD fled the scene and returned to his Residence where he packed up some personal items including clothing, medication and his sleep apnoea machine. He then fled in his vehicle.

(53) When MACDONALD got as far as New Westminster, he decided to return, and did return, to DUBASH’S Apartment in order to take the vehicle she had been using since the parties separated which was a 2009 black Infiniti FX 50 motor vehicle.

(54) MACDONALD returned to the outside parking lot adjacent to the Apartment Building, transferred his personal items into the black Infiniti, and fled in that vehicle. He saw police in attendance at the Apartment Building at that time.

(55) Ross MacDonald discovered his brother MACDONALD was missing from their shared Residence and contacted MACDONALD, who told Ross MacDonald that he didn’t have to worry about him anymore and he loved him. Ross MacDonald contacted police at 0435 hours to advise them of the same.

(56) In relation to what had happened, MACDONALD told Ross MacDonald that he “ knew he (ZEESO) was there, and I couldn’t take it anymore. I thought long and hard about it ”. Further, MACDONALD told his brother that he wasn’t going back to jail and they wouldn’t take him alive.

(57) Police Crisis Negotiators made telephone contact with MACDONALD, who advised he was driving in the Salmon Arm area. MACDONALD admitted to assaulting DUBASH and ZEESO and indicated that due to the amount of blood he saw, they must have been severely injured. MACDONALD told the Police Crisis Negotiator that he “ lost it” and asked him “ What do they do with nut cases like me? ” MACDONALD said “ I can’t live this way and I can’t, I can’t get over it. So I’m, kinda screwed ”. MACDONALD stressed that he would not be taken to jail alive.

(58) A Police Crisis Negotiator was able to convince MACDONALD to pull over and he was arrested near Armstrong, B.C. at 0940 hours. Upon arrest, police members located a pair of bloody gloves, a copy of MACDONALD’s release conditions, a pair of binoculars, a bag of clothes, and MACDONALD’s sleep apnea machine in the vehicle. Among MACDONALD’S belongings, police also recovered a print-out of a Google map, printed November 10, 2010, showing directions and a map to ZEESO’S personal residence in the United States.

(59) Police attended DUBASH’s Apartment and observed heavy traces of blood throughout the Apartment, leading to the hallway and stairwell of the Apartment Building.

(60) ZEESO and DUBASH were both rushed to hospital and underwent CT Scans which confirmed that they did not suffer any internal injuries.

(61) DUBASH’s physical injuries included:

a) An opening approximately 6-7 centimetres in length on her forehead, near the temporal region, requiring multiple stitches;

b) A chipped front tooth requiring dental treatment;

c) Contusion to her right eye;

d) Multiple bumps and bruising to her scalp, anterior chest, left knee posterior left shoulder and soreness to her right wrist.

(62) DUBASH was examined by Dr. Horricks on Dec.1, 2010. She told Dr. Horricks of broken sleep with nightmares, diminished interest in her day, increased feelings of regret, fatigue, lack of concentration, diminished appetite, increased agitation, fear, anxiety and emotionality. She was traumatized by the incident and was re-living it and kept seeing MACDONALD raising a bat above her head. (Admissions of Fact at Tab 4 are photographs of the injuries to DUBASH).

(63) ZEESO’s physical injuries included:

a) A large goose-egg bruise and bump on the left side of his forehead, and on the back of his head;

b) Stitches were required on his left pinky finger;

c) Bruises and swelling on his shoulders, knees, and ankles.

(64) ZEESO was examined by Dr. Horricks on Dec.1, 2010 and complained of soreness in his right posterior scalp and in the paracervical area and left temple. He had chest pain but had received an x-ray and was told there were no fractures of his ribs. His bowels were upset and he had a nervous stomach. His sleep was broken since the incident and he felt fatigued and lacked concentration. He felt agitation, fear and anxiety. He had been re-living the incident and slept with a knife under his bed. (Admissions of Fact at Tab 5 are photographs of the injuries to ZEESO). MACDONALD’s Statement to Police – Nov.27, 2010

(65) MACDONALD was later interviewed by Richmond police. During the interview, MACDONALD admitted to scaling the Apartment Building to the balcony of the Apartment. He admitted to removing his shoes prior to entering the Apartment so as to enter silently in order to “ beat the living shit out of him ”, in reference to ZEESO.

(66) MACDONALD repeated spoke of his love for DUBASH. He told police that he went to the Apartment initially with the binoculars because he wanted to know where she lived in the Apartment Building. He said “ I love her I just want to know where she is. I do .” He went on to describe how when he went to the Apartment Building, he saw DUBASH and ZEESO on the balcony of the Apartment. MACDONALD said he “ saw him (ZEESO) there...it just, it hurt, it tore me ”. He also told police “ There is a little part of me that thinks that maybe this will all go away and be over and we’ll be back togethe it’s so small now it’s like, it’s very unlikely ”.

(67) MACDONALD told police after he saw DUBASH and ZEESO on the balcony of the Apartment, he went home but couldn’t sleep. He said “ I hate this guy. He’s destroyed my life...I thought I could go over there and beat the living shit out of him ”.

(68) MACDONALD told police of his extreme emotional state, including rage and feeling shattered and feeling that he had nothing to live for. He told police “ the rage...I don’t know if it’s ever gonna leave. I don’t know. I really don’t. He’s destroyed my life. Just destroyed it. And that’s why I felt like I have nothing to live for. I’ve screwed everything now ”. MACDONALD further tells police “ I’m so broken hearted, it just shattered me. I love her so much. I don’t know how to deal with it, I really don’t. I feel really good most days and then I think about it and it does this to me.

And I just popped ”. “ It’s just an absolute nightmare to me. And I’m giving up my whole life, everything I’ve worked for. Everything. Over a hate that, it’s a love. But it’s turned into a hate for him I know. And I know really when I think about it all, it’s not his fault, it’s her fault. But I can’t blame her, I love her too much. It’s, it’s just, I’m all over the map” . MACDONALD repeatedly talked about how something “ twigs ” and “ I just lose it”.

(69) MACDONALD told police of his hatred for ZEESO. He said “ I kinda did want to kill him...the rage is there ”. He told police that if he wanted to kill someone he would use a knife. He said “ I definitely went there to hurt him... ” He said “ I just wanna kill him, I really do. I want to kill him, but I wouldn’t, I just, I wanna but I haven’t got the balls ” “ I wanted to hurt him real bad” . He told police that if he wanted to kill him “ and I thought about it...I would have opened one of those kitchen drawers and found a kitchen knife. I did that, think about it.

I stood in the kitchen and I looked and I went, yeah, I’m gonna beat the snot out of him and that’s all...And that’s what I went in there, full intent just to pound the hell out of him ”.

(70) MACDONALD repeated told police of how DUBASH is ganging up on him and setting him up and that everything is being twisted by her in her favour. He repeatedly spoke of how he is “ being played ” by DUBASH. He told police that “ it’s almost like her mother and her sister are conspirators in all this, with this boyfriend ”. MACDONALD said “ How can she be so loving and so nurturing and so wonderful and have this super conniving evil side that set me up for annihilation?” He repeatedly refers to his dire financial situation and that “ It’s only a matter of months and I’m belly up, bankrupt ”.

(71) Throughout the interview, which lasted in excess of four hours, MACDONALD lied by adamantly denying that he brought the bat and by insisting that ZEES0 was the one who had produced the bat. [ 5 ] Sentencing proceedings were adjourned to August 23 rd , 2011. In the interim, a Pre-Sentence Report (Exhibit 2) and a Forensic Psychiatric Report (Exhibit 3) had been produced under Court order. E. SENTENCING PRINCIPLES FROM

SECTION 718 CRIMINAL CODE : [ 6 ]

Section 718 provides for the purpose and principles of sentencing, and the following edited relevant sections applicable to this case are highlighted and reproduced.

“718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 1995, c.22, s. 6. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 1995, c. 22, s. 6. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender, and, without limiting the generality of the foregoing, ... (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; ...” F. WHAT DO THE ABOVE-NOTED RELEVANT TERMS MEAN? (і) Denunciation – to denounce unlawful conduct: [7] In R. v. M. (C.A.) (SCC), [1996] 1 SCR 500, Chief Justice Lamer commented that denunciation isregarded as essentially a communication process: “The objective of denunciation mandates that a sentence should communicate society's condemnation of that particular offender'sconduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.” [para. 81] [8] Denunciation, as an element of sentencing, is regarded as a tool for educating the public. In other words, the very natureof the sentence will indicate to the public how abhorrent certain conduct of individuals is regarded by the courts: R. v.

Simms (1990),1990 ABCA 352 , 60 C.C.C. (3d) 499 (A.B.C.A). [9] At the same time, the sentence is said to reflect the general moral sense of the community and to mark the disgust felt bythe majority of the public for the offender's conduct, not in the sense that it is the role of the courts to reflect public opinion but ratherthat the courts must not disregard it, and may possibly even lead it: R.v.Oliver, (BC CA), [1977] 5 W.W.R. 344(B.C.C.A.). [10] Although it would appear that there is a fundamental and essential relationship between denunciation and deterrence, it hasbeen said that “neither is easily measured empirically; both are presumed to flow from a heavy penalty, and neither is presumed to beachieved from a lenient one.”: R.v.

M.(G.) (1992), (ON CA), 77 C.C.C. (3d) 310 (Ont. C.A.). [11] In R. v. M. (C.A.), supra, Lamer C.J. said:

“The relevance of....denunciation as a goal(

s) of sentencing underscores that our criminal justice system is not simply a vast system ofnegative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing anenumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by whichthese values are communicated.

In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentencesshould also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed bythe Criminal Code”. [para. 81] (ii) Deterrence - to deter the offender and other persons: [12] There are two aspects to the element of deterrence in sentencing. (

a) General deterrence: [13] General deterrence, is based on the belief that the “legal sanction imposed on actual offenders will discourage potentialoffenders.” It assumes that members of the public who are about to commit or are even contemplating committing a similar offence willstop to think before they do it and that they will make a conscious decision not to commit the offence because of the fear of receiving thekind of sentence that was imposed on the particular offender: R. v.

Sweeney (1992), (BC CA), 71 C.C.C. (3d) 82. [14] Among the factors that determine the significance of the role of general deterrence are the gravity of the offence, theprevalence of the crime within the community and the potential impact of the offence on public confidence in the administration ofjustice: see R. v. Morrissette (1970), (SK CA), 1 C.C.C. (2d) 307, 12 C.R.N.S. 392 (Sask. C.A.). “The elusive concept of general deterrence proceeds on the assumption that the sentence of one offender will deter those who are like-minded. When it succeeds, we are not made aware of it.

When it fails, doubters claim it has no application. However, for it to have anychance of success, the principle must be applied fairly and equally to all members of the community”. (

b) Specific Deterrence [15] The second aspect, commonly termed specific or individual deterrence, assumes that the sentence will bring home to theparticular offender what will probably happen to him if he is inclined to commit a similar offence in the future. Specific deterrence isdesigned to persuade the offender from repeating his acts. Further to that objective, the court will consider the background of theoffender, in particular any prior criminal record and the prospects for rehabilitation. For first offenders, there is always hope.

For repeatoffenders, the courts are loath to say there is no hope but, if previous attempts to deter have failed, the sentence will reflect the court'simpatience: see R. v. Morrissette, supra. [16] Simply put, the principle of deterrence has the objective to deter the offender and other persons from committing offences. [17] Furthermore, in considering s. 718.1, it is an established principle that the sentence must be proportionate to the gravity ofthe offence and the offender's role in it. In other words, the offender must be punished for his or her role in the offence rather than whatwas done to the victim.

The appropriate punishment is one that reflects “the moral culpability of the offender having regard to theintentional risk taking of the offender; the consequential harm caused by the offender; and the normative character of the offender’sconduct”: see R. v. M. (C.A.), supra, at para. 80. (iii) Aggravating and Mitigating Factors: [18] To reiterate,

section 718.2(a)(ii), states that spousal abuse is an aggravating factor and that a sentence should be increasedor reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [19] Examples of aggravating factors may include the following: extreme violence; gratuitous cruelty to the victim; permanent emotional or physical injury to the victim; offences committed while onmandatory supervision; offences committed while on bail; offences committed while on probation; a prior consistent criminal record; arecent conviction; profit from the offence; absence of restitution; a child victim; an elderly victim; a vulnerable victim; use of a weapon;prevalence of the offence in the community; a pattern of criminal conduct against the same victim. [20] Examples of mitigating factors may include the following: youth; advanced age; absence of a prior criminal record; remorse; mental illness; physical infirmity; uncharacteristic behaviour; an earlyguilty plea; provocation; no prior incarceration; community (family) support.

G. OTHER SENTENCING CONSIDERATIONS: (

a) Section 348.1 - Home Invasion:

[21] In 2002, s. 348 of the Criminal Code was amended to include s. 348.1, which codifies an offence committed in the contextof a "home invasion" as an aggravating factor for sentencing purposes. “The Court imposing the sentence on the person shall consideras an aggravating circumstance the fact that the dwelling house was occupied at the time of the commission of the offence and that theperson in committing the offence (

a) knew that ...the dwelling house was occupied; and (

b) used violence...to a person: R. v. C. (D.J.)(2009), 245 C.C.C. (3d) (Sask. C.A.); also R. v. Fraser, 2007 SKCA 113. (

b) Remorse: [22] While remorse is a mitigating factor, a lack of remorse is not an aggravating factor, unless there are unusual circumstances: R. v. Elliot, 2004 BCCA 220 at para. 13 (Hall J.A. for the Court); Regina v. Valentini (1999), (ON CA), 132C.C.C. (3d) 262 (Ont. C.A.). (

c) Time in Custody Awaiting Sentence: [23] Suffice to say that credit given to a prisoner for time spent in custody is a discretionary call by the sentencing Judge. Parliament, in the Truth in Sentencing Act, S.C. 2009, c. 29, amended the Criminal Code so that credit for time served for offences committed after February 22nd, 2010 was shortened from de facto double credit to one for one. Section 719(3) of the Criminal Codenow provides: “

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent incustody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each dayspent in custody. Exception

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody...” [24] Over time, courts have identified 3 reasons justifying 1:1 credit or more: (1) the parole eligibility - no statutory remissionapplies to pre-sentence custody whereas such a custody reducing mechanism does impact on post sentence jail time; (2) the absence ofprograms in local remand facilities for treatment, counselling, education, training and; and (3) the harshness of the jail environment inwhich the pre-sentence custody is served. (See: Pre-Sentence Custody: “A New Era”, Mr.

Justice Casey Hill, Ontario Superior Court ofJustice, pp.4-5) [25] The cases suggest that, unless there is good reason not to, a court must credit an accused with time spent in pre-sentencecustody. (

d) Totality Principle: [26] The totality principle arises when an accused is convicted of multiple offences. The principle requires a sentencing judge to“ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.”: R. v. M.(C.A.),supra, at para 42. [27] The principle is stated in s. 718.2(

c) of the Criminal Code, which provides that a court that imposes a sentence shall alsotake into consideration the principle that “where consecutive sentences are imposed, the combined sentence should not be unduly long orharsh[.]” [28] Further, s. 718.1 provides that the sentence “must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender.” (

e) Consecutive vs. Concurrent Sentences: [29] If two offences are closely linked, concurrent sentences should be imposed: see R. v. Turner (1971), (ON CA), 1 O.R. 83. In deciding whether the sentence should be concurrent or consecutive, the Court should consider the relationship ofthe crimes, the time lag between the crimes, and the totality of the sentence: see R. v. Hiebert

(1980) B.C.D. (B.C.C.A.). A heavierconcurrent sentence should not be imposed where a consecutive sentence cannot be imposed: see: R. v. Paquin (1989), 70 C.R. (3d)(Que. C.A.). [30] There is discretion in a trial judge as to whether sentences should be concurrent or consecutive. Concurrent sentences areusually ordered when the offences are committed within a short period of time. If, however, the offences are totally unrelated and tookplace at different times, consecutive sentences should be considered: see R. v. Chislom (1965), (ON CA), 4 C.C.C.

289 (Ont. C.A.). (

f) Victim Impact Statement: [31] I have read and considered the victim impact statement. (

g) Case Law: [32] In determining what an appropriate sentence for a crime is, it is generally accepted that the trial judge must consider thegravity of the offence, the circumstances surrounding the actual commission of the offence and the degree of responsibility of theoffender, having regard to the penalties which the Criminal Code imposes: R. v.

Hinch and Salanski, (BC CA),[1968] 3 C.C.C. 39 (B.C.C.A.). [33] The judge should also consider the age and character of the accused, whether he has any previous criminal record, whetherhe has a family dependent on him and whether the crime was deliberate or committed on momentary impulse: R. v. Willaert(1953), (ON CA), 105 C.C.C. 172 (Ont. C.A.). [34] The attitude of the offender after the commission of the crime is also important, as it will serve to indicate the degree ofcriminality involved and may throw some light on his character: R.v. Hinch and Salanski, supra. H.

CROWN’S SUBMISSIONS [35] The Crown submits that the appropriate range of sentence is five (5) to eight (8) years imprisonment. This position isbased upon the principles set out in s. 718 with denunciation and deterrence of paramount importance. [36] The Crown argues that the accused was unrelenting and without regard for Court orders or the rule of law. Mr. MacDonaldwas persistent and committed in his actions. Furthermore, he was devious, as exampled in obtaining the cooperation of thecomplainant’s son.

Simply stated, the Crown suggests that the accused committed acts that constituted a virtual reign of terror in relationto his then, or soon to be, estranged wife. [37] The Crown asks the Court to impose a sentence in the global range of seven (7) years as governed by the principle oftotality. Mr. MacDonald should be given credit for having served 9 months of pre-sentence custody. [38] The Crown submits that the Breach of Recognizance Counts #9, 10 &12 should be sentences concurrent with one another.

Breach of Recognizance Count #5 and Count #11 should be consecutive to one another and consecutive to the aggravated assault counts(Counts # 6 & 7). [39] The aggravating factors that the Crown points to are inter alia: (

a) A protracted and persistent pattern of misbehaviour on the part of the accused culminating in the attack upon the complainant October 1st and 2nd, 2010. The accused choked the complainant (para.14-19 Exhibit 1) and broke the bathroom doorframe and lock.These actions caused the complainant to suffer physical and psychological harm. (s.718.2(a)(ii)). (

b) The accused threatened both complainant and Mr. Zeeso (s. 264.1, October 1st, 2010) (s.718.2(a)(ii)). Accused arrested andreleased. (

c) November 4th threat to complainant on the drive-by threat while released on bail for October 1st and 2nd assault charges (Count #5) (s.718.2(a)(ii)). Accused re-arrested and re-released. (

d) The November 26th attack at the apartment occupied by the complainant and Mr. Zeeso, while the accused was on bail for two (2)offences. The attack amounted to multiple breaches of Court orders. (

e) Statutory breach of s.718.2(a)(ii) spousal assault. (

f) Use of a weapon, a baseball bat. (

g) Home invasion attack s.348.1 (

h) The November 26th attack was planned, premeditated and not a spur of the moment decision. The accused took specific actionsto fulfill the goal in both preparation and execution. The accused was relentless in the pursuit of his goals. (

i) The accused engaged escalating harassing behaviour from beginning to end. (

j) The lasting effect that incident had on the complainants as indicated in Exhibit 1. The victim impact statement and comments inthe Pre-Sentence Report indicate long-lasting psychiatric trauma. (

k) Even if it were true (that he had been “set-up” by his wife and Mr. Zeeso, as the accused alleged) Mr. MacDonald was unjustifiedin what he did.

[40] In mitigation, the Crown suggests only a few factors are relevant. These include the lack of a criminal record, the guiltyplea to all counts and the support of his family. [41] There were two psychiatric reports prepared. One was commissioned by Mr. Debou, on behalf of the accused (Dr.Posthuma’s Report); the other was a Court ordered psychiatric report (the Forensic Psychiatric Services Commission Report), hereinafterreferred to as the Forensic Report). [42] The Crown submits that there are many areas of concern as indicated in the Pre-Sentence Report and two psychiatricreports.

An example of this concern was the telephone conversation between the accused and Mr. Zeeso that the accused claimed lastedfor only 40 seconds. Rather, the call lasted forty (40) minutes. The conversation between the two men was heated. [43] The examiners in the Forensic Report conducted two psychological tests upon the accused:

a) Wechsler Adult IntelligenceScale (WAIS-IV);

b) Personality Assessment Inventory (PAI) and;

c) consulted the Spousal Assault Risk Assessment Guide (SARA). [44] The Crown suggests that the Pre-Sentence Report and Forensic Report reveal the accused to be a man without remorse or,if he is remorseful, it is only for himself for having been caught. The accused lacks empathy for the victims. [45] The accused viewed himself as a victim, insofar as he was convinced that his ex-wife had “set him up” for financial ruin. These comments appear in the sentencing material. [46] There are inconsistencies in Mr.

MacDonald’s remarks in the Pre-Sentence Report, wherein he blames others, neveraccepting, nor having insight into his own offending. For example, the accused in the Pre-Sentence Report states that he “never getsangry.” [47] The Crown submitted that the Forensic Report testing was instructive. For example, Mr. MacDonald’s responses on thePersonality Assessment Inventory (PAI) indicated that he did not take many opportunities to say negative things about himself anddenied relatively minor faults to which most people will admit. “This is consistent with Mr.

MacDonald’s tendency to deny or minimizenegative characteristics despite evidence to the contrary”. Furthermore, Mr. MacDonald has indicated that he does not have a temper andis not violent, and insists that “he does not have difficulty with alcohol.” (Forensic Report at p.8) [48] “His responses on the PAI also suggest that he reported little or no feeling of guilt or anxiety and little stress...It is possiblethat he still harbours a great deal of anger towards Ms. Dubash and Mr.

Zeeso that he is not admitting to and has coped poorly with in thepast.” (Forensic Report at p.8) [49] The Forensic Report examiners used the Spousal Assault Risk Assessment Guide (SARA) to determine risk. Theexaminers listed a series of factors that Mr. MacDonald displayed and concluded that “Mr. MacDonald represents a relatively high riskof violence towards the complainant especially in the context of marriage dissolution and property settlement.” The Crown points outthat Dr. Posthuma did not utilize this universally accepted examination tool in his assessment of Mr.

MacDonald. [50] The Forensic Report suggests that the accused is a high risk to re-offend and harm the complainant. In other words, theaccused will probably never accept that his relationship with the complainant has ended. Case Law: [51] The Crown has provided the following cases for consideration and set forth the general range for offences of similarnature. I have read and listened to counsel’s submissions regarding the cases made available. R v. Moore, 2008 BCCA 129, 2008 CarswellBC 673 R v. Johnson, 2004 BCSC 1310, 2004 CarswellBC 2271 R v.

Johnson, (1998) (BC CA), 131 C.C.C. (3d) 274, 116 BCAC 279 (BCCA) R v. McCowan, 2010 MBCA 45, 2010 CarswellMan 200 R v. Willier, 2005 BCCA 404, 2005 CarswellBC 1879 R v. McFarlen, 2009 BCSC 1201, 2009 CarswellBC 2328 R v. Fraser, 2007 SKCA 113, 2007CarswellSask 593 I. DEFENCE SUBMISSIONS: [52] Mr. Debou, for the accused, reminds the Court that all of the cases are fact based and the context of home invasion in thiscase is without some of the usual elements.

There is no evidence of confinement, torture, and no evidence of robbery or theft. [53] Regarding the cases cited, the accused submits that a close analysis of those cases reveal a variance in approach. Forexample, Mr. Debou in reference to Regina v. Bernier, 2003 BCCA 134 , 2003 BCC A 134 at p. 6, specifically suggests how s.718.2 (

b) and (

c) should be considered. Specifically, he urged the Court to exercise caution in regard to any disparity in sentence and theprinciple of totality. [54] In reference to the range of sentence Bernier, supra, has this to say at para. 40-42:

“As to the term "range", in sentencing cases its proper use, in my opinion, is only as a short way of describing what the court has donein previous appeals in which the offence and the offender were similar to those in the case at bar. The reason is this: no division of thisCourt has the power to bind other divisions on future sentence appeals. While the past is prelude to the present, the past cannot always govern the present, nor can what we say now determine the future.

A "range" does not preclude on grounds of deterrence or denunciation or the gravity of the particular offence a sentence different fromthat "range". Nor does a "range" preclude a lesser sentence if some special circumstances warrant such a course. When considering anyparticular case similar to R. v. D.A.W. or to R. v. N.P.D. or to this case, trial judges and this court will have in mind those sentences aspart of the "range".

The "range" is not conclusive.” [55] At para. 96 Newbury J.A. said: “I agree with Madam Justice Southin that discussions about range are often inexact or confusing, and that it would be more useful tofocus on the application of the conventional and now-codified principles of sentencing to each case.” [56] Finally, at para. 106 Newbury J.A. said: “As mentioned earlier, I agree with the suggestion made by Madam Justice Southin that since Parliament has now codified theprinciples of sentencing, it would be better for courts to focus upon those principles and how they apply in particular cases, than on"ranges".

On the other hand, I acknowledge that "ranges" are a convenient shorthand for counsel to use in making submissions onsentencing and that the Supreme Court of Canada has given its approval to this approach in cases such as R. v. M.(C.A.) (SCC), [1996] 1 S.C.R. 500.

But the usefulness of ranges will always be limited by the countervailing consideration that in Canada,each case must still be assessed on its own facts and that as also noted in M.(C.A.), ". . . the search for a single appropriate sentence fora similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction." [57] Mr. Debou contends that the accused's primary concern was harming Mr. Zeeso and that Mr. MacDonald was equivocal asto what he wanted to do to Ms. Dubash. He submits that the accused was romantically smitten.

Whereas he was successful in allbusiness endeavours, the accused was, as evidenced, unsuccessful in his relationships. [58] Mr. Debou suggests that if the accused really and truly wanted to kill both Mr. Zeeso and Ms. Dubash, he could easily haveaccomplished this task. He could have gone to the kitchen and retrieved a more deadly weapon, such as a knife. Instead, it is suggestedby counsel, the accused “pulled his punches” and through restraint only desired to inflict the ensuing suffering. Mr.

Debou proposes thatit was not just luck that there were not more injuries; rather the accused did not cause more injury as he did not want to inflict any more. [59] Furthermore, Mr. Debou asks why Ms. Dubash moved only a few blocks away from the accused if she was in such fear. He suggests that she knew that she was not the prime target. Rather, it was Mr. Zeeso who drew the anger of the accused and he was theintended victim. Defence Submissions Regarding Psychiatric Reports: [60] Dr. Posthuma conducted the following tests upon the accused: 1.

Minnesota Multiphasic Personality Inventory-2-Restructured Form (MMPI-2-RF) 2. Mayer-Salovey-Caruso Emotional Intelligence Test (MSCEIT) 3. Statement Trait Anger Expression Inventory (STAXI) [61] Mr. Debou explains the accused's “concerning” comments to the probation officer (Exhibit # Pre-Sentence Report) and thepsychologist (Exhibit # Forensic Report) as indicators of the accused's attempt to be “buoyant”, given his difficult position. Specifically, with regard to the forensic psychologist (Dr. Kropp), Mr. Debou suggests that the accused is portrayed as advancing a“false front” or “bravado”. Mr.

Debou suggests that this should be viewed as a protective mechanism in the face of the unexplainable. [62] Counsel contends that the accused is remorseful for his actions and has expressed the same to the psychologist as best as hecould, given his nature and character. [63] Mr. Debou takes issue with the Forensic Report contrasting it to the report prepared by Dr. Posthuma. Dr. Posthuma’sanalysis was based on various tests, at the very least more in number than were conducted by the Forensic psychologists. Mr.

Debouproposes that the Forensic Report should be viewed with a healthy amount of scepticism, especially in risk prognostications. [64] Mr. Debou took further issue with the Forensic Report, specifically at p. 6 wherein Dr. Kropp stated that “during theinterview Mr. MacDonald stated that he does not have a temper and stated that we could ‘ask anybody’ and he ‘wouldn’t hurt a fly.’” Mr.

Debou argued that this runs counter to what others say about the accused, demonstrated in the letters of support and the Pre-Sentence Report references. [65] The Forensic Report mentioned, at p. 6, an incident that the accused had experienced in high school, wherein he knockedout a boxer with one punch. Mr. Debou related the incident in the context of the accused being bullied by a member of the school boxingteam and the accused “standing up” to the bully. Mr. Debou submitted that the Forensic Report “channelled” the comments of Mr.

MacDonald “negatively” and without context, thus reflecting ill upon his client unnecessarily. [ 66 ] Dr. Posthuma at p.4 describes how the accused’s history generally, and with Ms. Dubash specifically, indicates denial and avoidance of conflicts in his intimate relationships until such a state that this is no longer possible. He concludes the abovementioned from the psychological testing and in his interviews with family members, as well as the transcript of Sgt. Menard (interviewing Police Officer).

In his role as an employer, “he did not get into angry or aggressive interactions with employees when problems arose”. [ 67 ] Dr. Posthuma goes on to say that the accused was a self-made successful businessman. However, an area in which he failed was his relationships. Dr. Posthuma states that he considers significant that Sgt. Menard was able to negotiate with the accused on the basis of his compassion for others, as well as himself.

He notes that the accused's brother Ross MacDonald, MacDonald’s ex-sister– in-law and his more recent friend Patricia Reynolds, speak of his remarkable qualities of caring for others. [ 68 ] Dr. Posthuma employed the MMPI-2-RF psychological test. He concluded that the accused did not display or “indicate any anti-social or emotional control problems that might be associated with this offence” and that there is no thought disorder related to psychotic thinking or mood disorder related to depression or mania.

However, the test did indicate the likelihood that the accused is an impulsive man, who is inclined to do things on the spur of the moment quickly, without careful consideration. (p.6) [ 69 ] Dr. Posthuma administered the HCR-20 to rate the potential of violence of offenders or risk assessment. The accused “does not show a risk for violence in this procedure”. (p.7) [ 70 ] Dr. Posthuma concludes that the testing assessments “would indicate that it is unlikely that Mr. MacDonald is at risk for future violence”.

He continued saying that “in spite of the violence demonstrated in his actions with his wife and her boyfriend in her apartment building, it is considered highly unlikely that this will be repeated and that the action did form some sort of cathartic benefit towards enabling Mr. MacDonald to both accept what has occurred and to get on with his life.” (p.7) Dr. Posthuma continued, opining that “this examiner would consider it improbable that he was contemplating murder of either victim.

Rather, the likelihood that his action to crawl up the balcony of the building was as impulsive as were his other actions since realizing that his marriage was in jeopardy. It would appear that Mr. MacDonald was aware, at some level, of concerns that his marriage was not what he had hoped, but kept attempting to rationalize or deny or ignore the distance between his dreams and hopes and the reality of his situation.” [ 71 ] Dr. Posthuma also conducted the MSCEIT test to determine Mr. MacDonald’s level of emotional intelligence.

The MSCEIT is an ability test like an IQ test that measures interpersonal skills in understanding the emotional needs of one’s self and others. He concluded that Mr. MacDonald was overly positive in his assessment of people or overly accepting of the potential good in people. The test revealed that Mr. MacDonald was a successful, caring and considerate individual who has had “a significant failure in obtaining what is probably the most important pursuit in his life: that of a loving caring supportive relationship”. (p.7 Dr. Posthuma) [ 72 ] Dr.

Posthuma administered the MMPI-2-RF (a recognized psychological test of emotional adjustment). The test can determine if the interviewed subject (Mr. MacDonald) was objective and candid in completing the test. Mr. MacDonald gave no indication of distortion or inconsistency and there were no indications of anti-social or emotional control problems. He displayed an emotional adjustment as within the normal limits of the population. [ 73 ] He also used the STAXI test. It is designed to measure anger control problems. In STAXI, Mr.

MacDonald was found to be within the normal range and any anger problems are situational within the average range of the population. [ 74 ] Mr. Debou spoke of the health of the accused, stressing that he is not in good health. Subjectively, the accused has expressed and believes that his family history and his own cardiac problems (heart surgery) point towards a shortened life expectancy. [ 75 ] Mr. Debou submits that the accused is remorseful, that it is genuine and sincere. Mr. MacDonald wishes that he could undo that which he has done. Notwithstanding the accused's actions, he truly loved Ms.

Dubash. [ 76 ] Mr. MacDonald’s hate for Mr. Zeeso was fuelled by the deceit that he discovered, and the treachery that he perceived. His resentment and hostility festered until his anger exploded. [ 77 ] To reiterate, Mr. Debou suggests that Mr. MacDonald was, by all accounts according to his friends and family, a peaceful man by nature, non-confrontational in dealings with others, generous and caring. To a person, his family and friends were shocked by what had occurred. This was not the man they knew. [ 78 ] As to the appropriate global sentence, Mr.

Debou urges the Court to impose a term of imprisonment of two (2) years less one (1) day followed by a probation order of three (3) years. [ 79 ] As for the time spent in custody awaiting sentence, Mr. Debou suggests that as of September 29 th 2011 the accused has spent ten (10) months “dead time”. [ 80 ] Mr. Debou therefore submits that, after crediting Mr. MacDonald with “time spent”, the apposite global sentence should be fourteen (14) months plus three (3) years probation with conditions. J. DECISION: [ 81 ] The reports from the psychologists, both the Forensic Report and Dr.

Posthuma’s Report, describe a man filled with self- admiration and self-centeredness. In short, he is described as a narcissist. [ 82 ] As to the risk to re-offend, Dr. Posthuma views this event as peculiar to the relationship and its dynamics and does not place the re-offending risk at a high level. The Forensic Report says that the accused:

“represents a relatively high risk of violence towards Ms. Dubash, especially in the context of the dissolution of their marriage and the impending settlement of their property. The most likely recidivistic scenario would be a similar assault against Ms. Dubash and/or her current or future partner. Of particular concern are: the severity of past assaults; Mr.

MacDonald’s previous displays of violent anger and aggression coupled with his admission he is not angry or distressed and does not have a temper; his problematic use of alcohol and his denial of same; and his somewhat nihilistic belief that he does not have long to live and his life is nearly over. Mr. MacDonald may still harbour a great deal of anger that he is not admitting to and his anger may increase should he see Ms. Dubash with another partner or ruminate over his losses during the settlement of their property. Under these circumstances, he is capable of life-threatening violence.

Warning signs may include increased alcohol use, any attempted contact with Ms. Dubash or her new partner and a negative outcome for Mr. MacDonald regarding the division of their property.” (pg.9 para. 4) Denunciation and Deterrence: [ 83 ] The paramount sentencing considerations in this case are denunciation and deterrence. Mr. MacDonald’s actions must be denounced and he must be specifically deterred. General deterrence and rehabilitation follow in significance. In R. v.

Moore , 2008 BCCA 129 at para. 13 , Low J.A. says the following in the context of “home invasion” and the sentencing principles of denunciation and deterrence: “This Court has said that the sentencing principles of denunciation and deterrence must be given preferred attention with respect to these offences committed in circumstances involving violent entry into residential premises. Most recently, Frankel J. in R. v. Vickers , [2007] B.C.J.

No. 2471 , 2007 BCCA 554 , at para.12, put it this way: “ This Court has repeatedly stated that deterrence and denunciation are the primary factors in sentencing for violent crimes, particularly when these crimes violate the safety and security of a person's home. As Madam Justice Saunders recently stated in R. v. Meigs , [2007] B.C.J. No. 1659 , 2007 BCCA 394 at para. 25 , ‘it is a grave offence to enter another person's home without permission, and graver to enter the home and violate the occupant.

The courts must and do impose stern sanctions for such crimes .’ ” [ 84 ] The trial decision in Moore , supra (being R. v. Moore , 2007 BCSC 1966 ) is instructive and of assistance concerning the sentencing factors for home invasions (in particular, see paragraphs 4-8 of that decision). Mitigating Factors: [ 85 ] Mr. MacDonald has no previous criminal convictions and has the loving support of his family and friends. [ 86 ] Mr. MacDonald has an excellent work record. He is a successful businessman and I am told that he has accumulated significant wealth over a long working life.

His employees speak highly of his work ethic and respect his conduct as an employer. [ 87 ] He entered a guilty plea to all of the counts in the Information before the Court. To reiterate, I note that he has expressed remorse for his actions. Aggravating Factors: [ 88 ] HOME INVASION: As discussed at length,

section 348.1 of the Criminal Code mandates that a break and enter of a dwelling-house, in circumstances such as here, is an aggravating factor in sentence considerations. [ 89 ] BREACH OF BAIL: The accused was released on bail on an Undertaking for the alleged assault against Ms. Dubash on October 2, 2010 (Count # 2 & Count #3). He subsequently breached the “no contact order” (Count # 5), which resulted in his re-arrest and re-release on further terms under a Recognizance of Bail.

He then breached the aforesaid 2 nd Court order (Recognizance of Bail) by committing the offences on November 26 th , 2010 (Count # 6 through Count # 12). In short, Mr. MacDonald has shown no regard for the authority of the Court. He demonstrated on two occasions a willingness to disobey clear and direct orders by this Court in order to inflict fear and, ultimately, bodily harm upon Ms. Dubash and Mr. Zeeso. [ 90 ] USE OF A WEAPON: The accused used a weapon (a baseball bat) in committing the attack on Dubash and Zeeso . [ 91 ] ABUSED THE OFFENDER’S SPOUSE: Mr.

MacDonald’s case is one of egregious abuses against his spouse, comprising threats (Counts #1, 4, and 5) and two extremely serious physical attacks (Counts # 3, 6, and 8). [ 92 ] Mr. MacDonald learned of his wife’s affair in September 2010 and he immediately warned her of his intentions if she decided to leave him. The accused let his wife know in no uncertain terms of what he would do to her and Mr. Zeeso. [ 93 ] Mr.

MacDonald said that he was obsessed with the thought of his wife being with another man. [ 94 ] He physically attacked her on the night of October 1, 2010 / morning of October 2, 2010, and had threatened Mr. Zeeso by phone earlier that evening. [ 95 ] The accused had purchased a GPS Tracking Device on October 18, 2010, but it is not known for what specific purpose. The purchase was noteworthy and concerning, however, to Ms. Dubash. [ 96 ] Mr. MacDonald “stalked” his wife. Specifically, he confronted her while she left her residence to retrieve her son (November 4 th ).

This event was significant as he said to her, to the effect, that he knew everything about where she went, who she saw and what she did. He ended the conversation by telling her that he can get her whenever he wishes.

[ 97 ] Mr. MacDonald, through the assistance of Ms. Dubash’s unsuspecting son, was able to have his wife’s emails forwarded to his computer. He learned of her heretofore unknown address sometime after November 18 th , through the receipt of legal papers. It would appear, however, that the accused already knew of the general location of her residence (as evidenced by the November 4 th incident). [ 98 ] On November 25 th , the accused attended (unaccompanied by Ross MacDonald) to the vicinity of Dubash’s apartment block and, with binoculars, observed her apartment. He spotted a man and Ms.

Dubash on the balcony. [ 99 ] Notwithstanding his impulsiveness, Mr. MacDonald ’s actions on November 26 th were planned and deliberate. He had discovered where his estranged wife resided, conducted surveillance of the apartment and prepared his attack. He took with him gloves and a baseball bat (fastened to his belt while he scaled the building). He removed his shoes before entering through the balcony sliding glass window. [ 100 ] Mr. MacDonald had undergone serious surgery for his heart condition only a month or so previous, yet he was persistent and determined to carry out his plan.

He scaled six floors on the outside of a high rise apartment building (from balcony to balcony) in winter weather. This reckless and dangerous venture did not impede Mr. MacDonald. He was resolved. [ 101 ] After the attack and after his initial escape (to New Westminster), he brazenly returned to the scene where police officers were present and took his wife’s car. He felt entitled to the car under the circumstances. [ 102 ] When Mr. MacDonald was caught by RCMP officers, after his attempted escape, it became clear that he was distraught and suicidal. The RCMP negotiator was able to convince Mr.

MacDonald to surrender peacefully so as to avoid further harming himself and others. [ 103 ] Mr. MacDonald lied to RCMP investigators when he was interviewed. He insisted that he had been “set-up” by Ms. Dubash and Mr. Zeeso; that they wanted to get his money and that he was being victimized. He lied about bringing the baseball bat and tried to rationalize his conduct by blaming others. [ 104 ] As to whether or not Ms. Dubash and Mr. Zeeso conspired for financial gain to bilk or deceive Mr. MacDonald, only time and circumstances will determine the truth of the assertion.

Even assuming that there was a design to accomplish this scheme, Mr. MacDonald’s criminal conduct cannot be justified in any way, shape or form. [ 105 ] The accused betrayed his brother Ross MacDonald who acted as surety. Ross MacDonald was to accompany Mr. MacDonald at any time that he (the accused) was outside of his residence (Ross MacDonald’s home where the accused resided as a condition of bail as per Count #10). On November 25 th and 26 th (unbeknownst to Ross MacDonald), the accused was outside of the residence on his foray to Ms.

Dubash’s apartment. [ 106 ] The accused betrayed the other members of his family, his employees, his company, and his friends, all of whom relied upon him (see the Pre-Sentence Report and Dr. Posthuma’s Report). [ 107 ] Mr. MacDonald deceived the Court on two occasions after he had been granted bail. (Counts #5 and #9-12) [ 108 ] Mr. MacDonald demonstrated, over a significant time frame, a protracted and persistent pattern of misbehaviour.

Notwithstanding his expression of remorse, I have some reservations as to the extent and degree of this regret. [ 109 ] One could conclude, on the evidence, that the victims fought back to a sufficient measure that Mr. MacDonald’s intended actions were thwarted and led to his retreat. [ 110 ] I understand Mr. Debou’s suggestion that the accused “pulled his punches” in the attack, but I do not accept this proposition. It is clear that Mr. MacDonald wanted to inflict severe injuries to the two individuals that he believed had caused the pain that he was suffering and felt that they should be held to account.

He saw them as trying to ruin his life to such an extent that he was prepared to put into action the threatening words that he had previously spoken. It could be said that Mr. MacDonald considered that if his actions resulted in more serious harm to the victims than he intended, then, so be it. That was the risk, somewhat akin to the balcony climb to the apartment; he could have fallen and they could have died. Fortunately, neither of these possibilities occurred. Credit for Time in Custody: [ 111 ] For Mr. MacDonald’s time spent in pre-sentence custody, I credit him with ten (10) months time served.

Sentence: [ 112 ] Mr. MacDonald has demonstrated, by his persistent criminal conduct, a lack of respect for the rights and safety of others. Further, he paid no heed to Court orders. The aggravating factors are many and the mitigating factors are few. These realities will be reflected in the imposition of a fit and proper sentence. [ 113 ] I consider that a fit total sentence for all of the Counts is five (5) years and six (6) months for a total of sixty-six (66) months BEFORE ANY CREDIT FOR PRE-SENTENCE CUSTODY. [ 114 ] The break down for each count is as follows:

(

A) For Count #6 (Aggravated Assault upon Ms. Dubash), Count #7 (Aggravated Assault upon Mr. Zeeso), and Count #8 (Break and Enter of a Dwelling House) a term of imprisonment of five (5) years. Each Count to be served concurrently one with the other. (

B) For Count # 5 (Breach of Recognizance) the term of imprisonment is two (2) months consecutive to Counts # 6, # 7, and # 8. (

C) The term of imprisonment for Count # 11 (Breach of Recognizance) is four (4) months consecutive to Count # 5 and consecutive to Counts # 6, # 7, and # 8. (

D) The term of imprisonment for all other counts (Counts 1, 2, 3, 4, 9, 10 and 12) is three (3) months each concurrent one with the other and concurrent to Counts 5, 6, 7, 8, and 11. [ 115 ] For Mr. MacDonald’s time spent in pre-sentence custody he is to be CREDITED WITH TEN

(10) MONTHS TIME SERVED . [ 116 ] IN

SUMMARY: • Counts 1, 2, 3, 4, 9, 10 and 12 are to be served concurrently with all other counts. • Counts 5 and 11 are consecutive one with the other and consecutive to Counts 6, 7, and 8 [ 117 ] Therefore, the resultant total sentence after credit for time in custody is Four (4) years and Eight (8) months or Fifty-Six (56) months commencing from today. [ 118 ] There will be a victim fine surcharge pursuant to S. 737(2) of the Criminal Code . [ 119 ] Mr. MacDonald is prohibited from communicating with the victims, Ms. Dubash and Mr.

Zeeso, either directly or indirectly during the term of imprisonment, save and except through legal counsel, pursuant to s. 743.21 of the Criminal Code . __________________________ R. D. Fratkin, P.C.J.