R. v. McMaster, 2016 ONCJ 281

CITATION: R. v. McMaster , 2016 ONCJ 281 DATE: 16·05·18 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DARRELL MCMASTER Before Justice L. Feldman Heard on November 30, December 15, 2015, January 26, 27, March 10, 11, 2016 Reasons for Judgment released on May 18, 2016 J. McKibbin ............................................................................................................ for the Crown L.

Moldaver ........................................................................... for the accused Darrell McMaster FELDMAN J.: Introduction [ 1 ] Darrell McMaster entered not guilty pleas to three counts of Assault and one each of Threaten Death and Assault Bodily Harm. It is alleged the defendant assaulted the complainant, Cindy Voutour, in separate incidents, on one occasion causing her injury, in addition to threatening to kill her. [ 2 ] The Crown called Ms. Voutour, her landlord, Andrew Please, and P.C. Leslie Higgs in support of its case. Mr.

McMaster testified in his own behalf and relied, as well, on the evidence of P.C. Chaitram Persaud. [ 3 ] I must weigh the evidence and credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the prosecution. The Evidence [ 4 ] Cindy Voutour is 52 years old and supported by ODSP. She suffers depression and is an alcoholic. The complainant says she and the accused met at a bar in April or May of 2014 and became romantically involved. At the time, the defendant was living in a motel. He began to stay with her more frequently.

She said they went to bars and drank a lot at home. [ 5 ] The complainant agrees it is possible she did not meet Mr. McMaster until June 9. She believes she knew him for about 6 weeks but conceded it was possible they were involved for less. This is inconsistent with her claim that the accused attended her mother’s birthday party on April 9. [ 6 ] The defendant works for a moving company. He is taller than the complainant and weighs 235 pounds. Ms. Voutour claims he is quite strong and that she is no physical match for him. [ 7 ] The complainant testified that problems began about 2-3 weeks after they met.

She said the first time they argued he grabbed her arm leading to both of them falling to the ground. She recalls him then calming down. She asked him to leave but he refused. He later apologized. [ 8 ] Ms. Voutour told the court that the next incident, which was much worse, occurred 10-14 days later. She said they were both drinking a lot, at first in the back yard, later downstairs in her basement apartment. She recalls the defendant’s mood started to change. He became more hostile and threatened to hurt her. [ 9 ] That was not the first they were drinking in the backyard.

Her former landlord recalls them drinking outside more than once, laughing and having a good time, but said that as they consumed more alcohol they would inevitably get into an argument. [ 10 ] In relation to this incident, Ms. Voutour testified that after they returned downstairs he grabbed her arms and hit her in the chest with his elbow causing her to lose her breath and fall down. She says he punched her in the head and eye area. She claims he threw a futon over her face making it more difficult for her to breathe. She suffers from chronic constructive pulmonary disease.

[ 11 ] During the course of this violence, she says the accused threatened to hurt her, her mother and her dogs that were precious to her. She indicated she suffered a black eye, bruising on her arms and legs and chest pains. She explained she did not seek medical attention as she was unable to get out of bed and, as well, had no one to watch her dogs. [ 12 ] Of significance, Ms. Voutour concedes that when she drinks her memory can be affected.

In this regard, she also admits smoking weed and having used crack cocaine once with the accused. [ 13 ] When she felt better the complainant called the police in order to have Mr. McMaster removed. The police asked him to leave. She claims to have told the officers about the previous assaults. However, P.C.

Persaud denied hearing of any prior abuse from this complainant, described by this officer then as very drunk, although he agrees he did not ask her. [ 14 ] Despite all of the above, the two protagonists discussed moving in together to another residence on June 29 that would be larger and more comfortable than the unfinished basement apartment she then occupied. She claims to have been too afraid to do otherwise. It is clear she needed the financial support. The monthly rent was $1000. The lease was in her name. [ 15 ] Ms.

Voutour told the court that while she paid first and last month’s rent, the defendant put in only a few hundred dollars for use one of the bedrooms. She denies he gave her $1500. It is unclear how she raised the money from her monthly ODSP payments of $1500. [ 16 ] Despite being directed by police to leave after the second incident, Mr. McMaster returned without permission on June 28 because of the move the next day.

The complainant testified that during that evening their heavy drinking led once again to arguments during which she says the defendant expressed his anger for her having called the police on him and assaulted her. [ 17 ] Ms. Voutour told the court that in the course of their fight she tried to push the defendant away when he grabbed her phone. She claims he then punched her in the forehead, eye and mouth, knocking a lamp out of her hand that she had picked up to defend herself.

She said she fell on the shattered glass with fragments becoming stuck in the back of her head. [ 18 ] She says the accused then kicked and punched her causing bruises on her arms and legs and resulting in her left index finger being broken. She also described suffering extreme pain from the defendant kicking her in the left side of her ribs when she was on the floor. He would ot let her leave the house. [ 19 ] She recalls that Mr. McMaster had a couple of scratches and bruises on his face after the fracas. She sought assistance from Mr.

Please, but says he advised her to calm down and go back downstairs to get ready for the move in the morning. Mr. Please told the court that at the time he saw no marks on her face. [ 20 ] Ms. Voutour considers her landlord a good friend with whom she has shared drinks at pubs over the years. In fact, she claims to have gone to the pub with him 2-3 times after the accused was charged and that they talked about the bruises he saw on her. [ 21 ] By contrast, Mr. Please testified that he went only once to a pub with his tenant. In relation to Mr.

McMaster, he said he was staying over with the complainant “pretty well every night”. [ 22 ] The complainant said the defendant made her wear sunglasses the next morning to hide her black eye, an injury Mr. Please said he observed at the time. Her clothing covered the rest of her. He also saw a bump and shallow cuts on top of the defendant’s head. [ 23 ] Ms. Voutour told her new landlady about the assaults and gave her 30 days notice.

She felt safe when the accused was arrested on July 3. [ 24 ] Photographs and a medical report confirm the following injuries: a black eye, black lip, bump on the complainant’s forehead, bruises on her spine, a large bruise on her upper left arm, bruises on her right arm, a sore and swollen foot and a broken left index finger. [ 25 ] Ms. Voutour agrees she had a burger with their mutual friend, Corina the day after the assault. She admitted having 6 beers at the time. She denies fighting with her.

In fact, she testified that she has never hit others except in self-defence. [ 26 ] Nonetheless, she admitted being the aggressor in a fight with Diane Bujold at a pub prior to these events. As well, she entered a peace bond for slapping this same individual in the same year at a different pub. [ 27 ] The complainant was also questioned about her relationship with a long-term friend, Jack McCallem. She said she dated him for about 3 months in 2013. She told the accused, whom she says threatened her dogs, that she would not tolerate such threats as she would not allow Jack to that.

She admitted lying about Jack’s threat in order to make a point with the defendant. However, she also agrees Jack sent her a letter threatening to “take care” of her family, in addition to other threatening texts. [ 28 ] Ms. Voutour also discussed another drinking partner, Jimmy Fisher, who, she says, was a mean drunk, and assaulted her more than once in 2015. The Defendant’s Testimony [ 29 ] Mr. McMaster is 54 years old and a long-distance furniture mover.

He has 23 findings of guilt, the majority of which are for offences of dishonesty, but include four convictions for assaultive behaviour and two of uttering threats. His last conviction was in 2007. He denies assaulting or threatening the complainant. [ 30 ] The defendant testified he first met Ms. Voutour on June 7 at a pub. He had just broken off a 7-year relationship and given up his residence. He bought her some beers. They returned to his motel room that night.

[ 31 ] On June 10, he stayed at her apartment. He left some clothes there but says he never moved in and kept his motel room. He felt sorry for her. He recalls being at her apartment on June 15 and 26. Given his own excessive drinking and the passage of time, it is difficult to accept his ability to be exact on dates. [ 32 ] It appears their relationship developed somewhat, however volatile. They decided to look for a larger apartment. Mr. McMaster found one and says he put down a deposit of $1000, later providing an additional $500 to the new landlady.

He claims Cindy gave $500 only on June 29, the day they moved in. It is more plausible that he would have the funds available for the first and last month deposits. He claims he did not have the time to put his name on the lease, when the evidence indicates he did. [ 33 ] On June 26, the intoxicated complainant called the police and asked that Mr. McMaster be removed following an argument that started, the defendant says, when he told her their new landlady had no tolerance for alcohol consumption. He returned to his motel room.

He denies assaulting her that night. [ 34 ] Despite being removed by direction of the police, Mr. McMaster decided to move in to the new residence with the complainant. He says he needed a place to sleep and felt he would not be spending a lot of time with her. He says he took a chance and claims to have had no emotional attachment to her. His evidence in this regard is questionable. To move in with someone he barely knew, who seemed an unstable and impulsive alcoholic and who reported him to the police a few days following a drunken stupor makes little common sense. It tends to support the evidence of Ms.

Voutour that there was more to the relationship than he allowed in testimony. [ 35 ] Mr. McMaster claims not to have seen the complainant’s“shiner” on the morning of the move, as had their former landlord. He testified that he was away at work until July 3 and that when he returned Ms. Voutour was banged up and had a bruised eye, wrist and finger. He says she told him she had been in a fight with Corina. He denies responsibility for any of her injuries. He was arrested that day. The Weighing Process [ 36 ] Questions about the reliability of both parties abound. Ms.

Voutour is an alcoholic with an admitted poor memory and volatile nature. She agrees she is a poor historian. In her narrative, she was weak on times and details. It is unclear when and for how long she was in a relationship with the defendant. [ 37 ] Ms. Voutour was wrong to say she told the officer investigating the second incident of prior abuse at the hand of the accused. Where she found the funds for a new and more expensive rental is hard to understand. Her reasons for moving in with a purportedly serial abuser are even more difficult to grasp.

She appeared to exaggerate her friendship with her landlord while minimizing both her alcoholism and tendency to be aggressive with others when intoxicated, which was often. [ 38 ] Nonetheless, her injuries were significant. I accept the objective reliability of Mr. Please’s evidence that on the morning of the move Ms. Voutour was sporting a “shiner”. I am not left in reasonable doubt that it was otherwise caused in a scuffle with Corina. [ 39 ] Mr. McMaster does not fare much better on the credibility scale. His testimony was a self-serving primer on minimizing his role in this fiasco of a relationship.

His claim of restricted contact with Ms. Voutour fails in light of the evidence of the quasi- independent Andrew Please who said the defendant stayed with the complainant “pretty well every night”. His certainty on dates, given the passage of time, does not meet with common sense. I don’t accept he lacked the time to sign the new lease, particularly when he claims to have put up most of the money. His regard for the complainant was marked by his return to her residence despite admonition by the authorities to leave. I would not rely on his evidence.

Conclusion [ 40 ] On this evidence, it is probable that the accused assaulted and threatened the complainant as she described. But on this calibre of evidence I am not satisfied to the near certainty required in the authorities that all of the injuries were at Mr. McMaster’s hand. I am however satisfied beyond a reasonable doubt on the evidence that in assaulting the complainant during the evening prior to the move he blackened her eye. [ 41 ] The accused will be found guilty of assault. The other charges are dismissed.

Released: May 18, 2016 Signed: “Justice L. Feldman”