R. v. Stoyko, 2011 ONCJ 174

COURT FILE No.: Central East Region-Newmarket 10-11089 DATE: 2011·03·21 Citation: R. v. Stoyko , 2011 ONCJ 174 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JASON STOYKO Before Justice Peter C. West Heard on February 23, 24 and 25, 2011 Reasons for Judgment released on March 21, 2011 Mr. McCallion ........................................................................................................ for the Crown Mr. D.

Mideo ................................................................................. for the accused Jason Stoyko WEST J.: [ 1 ] Jason Stoyko is charged with the following offences: Count 1: On November 14, 2010 with committing an assault on Jacey Desjardins-MacIsaac, by using a weapon, namely a dresser drawer; Count 2: Between October 10, 2010 and November 15, 2010 with breaching a term of his probation order dated August 10, 2010, namely: “Not to associate or communicate, directly or indirectly, with Jacey Desjardins-MacIsaac, except through Family Court order”; Count 3: Between October 10, 2010 and November 15, 2010 with breaching a term of his probation order dated August 10, 2010, namely: “Keep the peace and be of good behaviour”; Count 4: Between October 10, 2010 and November 15, 2010 with breaching a term of his probation order dated January 8, 2010, namely: “Not to associate or communicate, directly or indirectly, with Jacey Desjardins-MacIsaac or Sidney Stoyko, except through legal counsel or as authorized by Order of a Court of Competent Jurisdiction”; Count 5: Between October 10, 2010 and November 15, 2010 with breaching a term of his probation order dated October 27, 2009, namely: “Not to associate or communicate, directly or indirectly, with Jacey Desjardins-MacIsaac or Sidney Stoyko, except through counsel or as authorized by Order of a Court of Competent Jurisdiction and also except and then only with her prior written revocable consent to be filed with the PARS Program Office”; and Count 6: Between October 26, 2010 and October 27, 2010 with committing an assault on Jacey Desjardins-MacIsaac. [ 2 ] At the commencement of the trial the Crown indicated he would not be proceeding with Count 3 in the Information and asked that this charge be withdrawn.

On being arraigned on the remaining charges, Mr. Stoyko pled guilty to the three counts of Fail to Comply with Probation and not guilty to the charges of Assault with a Weapon and Assault. [ 3 ] The Crown called three witnesses: the O.I.C., Detective Richard Arnaud, the complainant, Jacey Desjardins-MacIsaac (hereafter referred to as Jacey MacIsaac) and her father, Patrick MacIsaac.

It was agreed by both counsel that the audio statement of Sukhraj Sandhu would be played and filed as an exhibit. (Exhibit 8) The defence did not call evidence. [ 4 ] I have carefully reviewed my notes of the evidence, transcripts of complainant’s evidence and the exhibits filed by the Crown and defence. I am also grateful for the helpful submissions made by counsel. Similar Fact Application by the Crown [ 5 ] At the outset of the trial, Mr. McCallion brought an application to introduce similar fact evidence.

Notice of this application was provided to the defence on the afternoon of the day prior to this trial being scheduled to commence. Mr. McCallion requested that I exercise my discretion to dispense with the time requirements set out in the Rules of the Ontario Court of Justice in Criminal Proceedings pursuant to 2.02 where it is “necessary in the interests of justice” to do so.

[6] A judicial pre-trial had been held before Mr. Justice Peter Wright and I was advised by counsel that no mention wasmade of such an application being brought by the Crown. Three days were set aside for Mr. Stoyko’s trial as a result of the discussionsat the judicial pre-trial. [7] There were four charges of Fail to Comply with a Probation Order facing Mr. Stoyko, relating to three separateprobation orders spanning the period October 2009 and August 2010. The three probation orders relate to offences of assault (3 separatecharges), mischief (1 charge) and fail to comply with court orders (6 charges).

The police and the Crown were certainly aware that therewere prior incidents of domestic violence involving Mr. Stoyko and Ms. MacIsaac at the time the charges before the court were laid inNovember 2010; however, Mr. McCallion advised me he had only become aware of the need to bring a similar fact application themorning before the trial was to start as a result of his interviewing the complainant. [8] Mr. Mideo opposed the application as it was not filed in accordance with the rules. Further, if I granted the Crown’srequest to dispense with the notice requirements, Mr. Mideo argued that Mr.

Stoyko’s fair trial interests would be significantly affected.Mr. Stoyko had been in custody since his arrest on November 22, 2010. An adjournment would be necessary to properly allow thedefence to prepare a response and this would cause prejudice to Mr. Stoyko. I had a discussion with counsel about commencing a bailhearing to determine if it was appropriate for Mr. Stoyko to be released, in the event I granted the Crown’s request to dispense with thenotice requirements in the interests of justice. [9] A recess was taken to allow Mr.

McCallion to consider his position as to whether he would pursue the similar factapplication or proceed pursuant to the dicta in R. v. F.( D.S.), (ON CA), [1999] O.J. No. 688 (Ont. C.A.) respectingthe leading of evidence of prior discreditable conduct for the purpose of providing narrative and context respecting the relationship,possibly providing motive on the part of the defendant and providing an explanation as to why the complainant did not approach thepolice immediately or shortly after the incidents. After the recess, Mr.

McCallion advised he was abandoning the similar fact applicationand would proceed on the basis of F. (D.S.). The Law: [10] As in any criminal case, Mr. Stoyko is presumed innocent until proven guilty. I have reminded myself that I need notfirmly believe or disbelieve any witness and that I can accept all, some or none of a witness’ testimony. I have also reminded myself thatthe Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained bythe Supreme Court of Canada in R. v. W.D. (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.), R. v.

Lifchus (1997), (SCC), 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr (2000), 2000 SCC 40 , 147 C.C.C. (3d) 449 (S.C.C.). Proof of aprobability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminalproceedings. Factual Background [11] Detective Richard Arnand was the investigating officer and had contact with Ms. MacIsaac on October 27, 2010 whenshe was taken to Southlake Regional Health Centre. He conducted an audio taped interview with Ms. MacIsaac. He observed swellingand bruising to the left side of Ms. MacIsaac’s face.

Her nose was still bleeding, there was a small cut to it and she had a bandage on herright arm. [12] At the outset of the trial Mr. McCallion filed a number of exhibits. Exhibit 1 is an Information, dated November 27, 2009,containing seven counts, to which Mr. Stoyko pled guilty to four charges and was sentenced to a period of custody and two yearsprobation by Mr. Justice R. Minard. The probation order, dated January 8, 2010, is attached. [13] Exhibit 2 is three separate Informations, dated May 29, 2010, June 7, 2010 and July 26, 2010, respectively, containingeight counts in total, to which Mr.

Stoyko pled guilty to four charges and was sentenced to a period of custody and three years probationby Mr. Justice L. E. Chester. The probation order, dated August 10, 2010, is attached. [14] Exhibit 3 is an Information, containing one count of breaching his undertaking, to which Mr. Stoyko pled guilty and wassentenced by Mr. Justice Wm. Gorewich to probation for two years. The probation order, dated October 27, 2009, is attached. [15] Exhibit 4 is 10 pages of photocopied contact sheets of photographs (7 pages have 8 photographs per page of text messagesfound on Ms.

MacIsaac’s cell phone; the final 3 pages are of the outside and inside of room 26 at the Summit Motel in Richmond Hill: 2pages have 8 photographs per page and the final page has 3 photographs). [16] Exhibit 5 is the emergency hospital records from Southlake Regional Health Centre in Newmarket, dated October 27,2010 at 13:25. The nurses notes indicate that Ms. MacIsaac indicated she was in a fight with someone the previous evening. Shecomplained of pain in her cheek, jaw, nose and wrist. She refused to be examined by the triage nurse. Bruising was observed on her leftcheek and nose.

The x-rays taken at the hospital of her jaw, nose and wrist showed no evidence of fracture. [17] Jacey MacIsaac testified that she had been in a common law relationship with Jason Stoyko on and off for approximatelyfive years. They have a three year old daughter, Sidney, from this relationship. [18] Since June 2010, pursuant to a Family Court Order, Sidney has been in the custody of Mr. Stoyko’s mother, Arlene. BothMr. Stoyko and Ms. MacIsaac have only access privileges to their daughter.

Their access has been restricted at various times from twohours a day, seven days a week to two hours a day, three days a week. In fact, Mr. Stoyko’s probation order, dated January 8, 2010(Exhibit 1) prohibits him from having contact, directly or indirectly, with Jacey MacIsaac and with his daughter, Sidney, except asauthorized by Order of a Court of competent jurisdiction. [19] I was not provided with any of the underlying reasons for the Family Court Judge’s decision to award temporary custodyof Sidney Stoyko to Arlene Stoyko.

Nor was I provided any of the factual underpinnings of any of the probation orders filed as exhibits.

[ 20 ] It is clear from the evidence; however, that Sidney played a significant and central role in the interactions between Mr. Stoyko and Ms. MacIsaac after Mr. Stoyko was released from custody in October 2010. [ 21 ] On October 26, 2010 Ms. MacIsaac testified that she and Mr. Stoyko had gone out for drinks and wings at the London Pub in Richmond Hill. Ms. MacIsaac consumed a couple of rum and coke. Throughout the night she testified that she had a total of five drinks. Mr.

Stoyko had a mixture of drinks, rum and coke, then vodka and then martinis but she was “not exactly sure which ones.” [ 22 ] They left the London Pub and took the Viva bus to the Summit Motel where they both consumed some wine. According to Ms. MacIsaac, everything was okay at first but then they started arguing. She could not really recall what they were arguing about, “we just started arguing about just pretty much past like him being arrested before and me sending him to jail before and our daughter and just everything…” [ 23 ] She testified that Mr.

Stoyko has issues surrounding his drinking and getting angry. She testified that there was a history of abuse by Mr. Stoyko towards her starting in June 2009. She described how Mr. Stoyko had stopped working and she was working. Mr. Stoyko did not want to stay home and look after Sidney. He wanted her to be in day care. Ms. MacIsaac did feel she could support day- care and support Mr. Stoyko and Sidney too. They argued a lot about this issue and she finally said he had to leave. She thought the first arrest had to do with verbal death threats but she was not sure.

She could not recall how many times she had called the police but it was probably five or more occasions. The Crown did not ask any questions concerning the details of these prior incidents of abuse. [ 24 ] According to Ms. MacIsaac, on October 26 Mr. Stoyko became upset with Ms. MacIsaac because he had gone to jail. They argued about their daughter and Mr. Stoyko became upset that Ms. MacIsaac had broken up their family. He felt that when you are with someone and you have a child together then you should stay in the relationship no matter what and try to work things out. [ 25 ] She described that Mr.

Stoyko grabbed her initially by her neck and held her against the wall of the motel room, choking her. He tried to push her out of the room and on one occasion, after he had pushed her outside the room, she came back into the room. She was only wearing shorts. She testified they were fighting on the bed and she was fighting back. He punched her in the face with a closed fist, really hard, which caused bruising to her nose and left cheek. He also slammed her wrist in the door of the motel room. She admitted to punching Mr. Stoyko back, but he started the fight.

The assaultive behaviour went on for about a half an hour, sometime between 12 midnight and 2. [ 26 ] She testified that both of them had been drinking and were not sober. Mr. Stoyko turns angry and verbally and physically abusive when he has been drinking. Ms. MacIsaac pretended she was dead so he would stop and he did. [ 27 ] There was blood everywhere. Mr. Stoyko told her that she was okay; he held her and said he was sorry. Ms. MacIsaac went to the washroom to clean up. Mr. Stoyko kept telling her not to tell anyone. She asked him to call an ambulance but he said she was fine.

She asked him two times about his calling an ambulance. Ms. MacIsaac slept for a couple of hours but she had to attend court the next day for an assault with a weapon charge that he was facing. [ 28 ] When she woke up the next morning, the blood had dried on her face. Mr. Stoyko told her not to tell anyone and he told her no one would notice her injuries. She went to court and Mr. Stoyko told her not to say anything if she wanted to see her daughter again. He had made this threat on previous occasions and she took the threat seriously. Whenever Mr.

Stoyko was arrested she would be denied access by his mother who had been given custody of Sidney. This had happened five to ten times previously. Mrs. Stoyko would make up excuses: the baby’s not feeling well, she didn’t have transportation or there was a death in her family. She testified the longest time was when Jason was arrested by police on November 22, 2010, after which she was denied access for two to three weeks. [ 29 ] Ms. MacIsaac testified that when she went to court she saw her brother and a friend, Matt Peterson.

When they saw her, she told them she had been involved in a hockey fight the night before. At some time later, she told Matt that Mr. Stoyko had caused her injuries but told him, “don’t worry, he (Jason) got it worse.” Ms. MacIsaac was brought by a police officer to the police office in the courthouse and an ambulance was called. She told the police she did not want an ambulance called, she did not want to go to the hospital. She was told by the police that she had to go to the hospital. [ 30 ] At the hospital Ms.

MacIsaac changed her story and said she got into a bar fight, after she tried to pick up another girl’s boyfriend. This girl became upset and got into a fight with Ms. MacIsaac. She had x-rays taken at the hospital, which showed that none of her bones were fractured or broken. [ 31 ] While she was at court and at the hospital Ms. Isaac testified that she was receiving text messages from Mr. Stoyko about not telling anybody what had happened the previous evening. These text messages are no longer on her phone.

She testified she signed over the medical records and provided an audio statement to Detective Arnaud while she was at the hospital. She told him the story about getting into a bar fight, which was not the truth. She didn’t tell the truth about what had happened the night before because she didn’t want to lose her daughter. She believed if she told the police what really happened she would be denied access to her daughter. [ 32 ] Her injuries lasted for a couple of weeks. While she was in the hospital she complained of pain to her wrist, nose and cheek.

After she left the hospital she went back to the Summit Motel. Jason was very apologetic and asked her if anyone had said anything. They continued living together after she went back to the motel. [ 33 ] On a Sunday, likely November 14, 2010, Ms. MacIsaac said she and Mr. Stoyko got into another argument. Mr. Stoyko had been drinking again. This incident was not as severe as October 26. He was concerned she was going to call the police about the October 26 th incident and then he would be arrested again.

He threw the front of a dresser drawer at her and it hit her on the upper right top of her head, which “didn’t feel so great.” It did not cause any injuries. She testified she knew things were going to escalate so she ran out of the motel room and called her father to come and pick her up. She took a bus to the bus terminal at Yonge Street and Davis Drive. [ 34 ] When she arrived at the bus station she saw a police officer and she asked him for his card. She was wearing a pair of shorts, a t-shirt and sandals. It was cold outside and she was not dressed appropriately.

The next day she left messages for Detective Arnaud and finally spoke to him at a police station and made a video-taped statement on November 18, 2010.

[ 35 ] The Crown asked whether Ms. MacIsaac had ever been injured by Mr. Stoyko previously and she indicated that on November 22, 2009 he hit her on her left eye with a closed fist when he was kicking her out of the car. He had been drinking but she was not sure why he was angry. “There’s been like several incidents like with him like choking me – um – that the police weren’t called on that I’ve never said anything about.” The Crown did not ask any further questions. [ 36 ] After Mr. Stoyko was charged she did not see her daughter for about three weeks.

She tried to get her lawyer to do something but there was already a date in December set and her lawyer was going away on holidays and did not have enough time to prepare a case conference. [ 37 ] Sometime in October 2010, Ms. MacIsaac knew that Mr. Stoyko was about to be released from jail in respect of assaulting his mother. Ms. MacIsaac began living at a shelter a couple of weeks before because she did not want Mr. Stoyko to know where she was living. She testified that she thought Mr. Stoyko was going to go back to live with his mother where Sidney was also living. She was scared for her daughter.

She was not concerned that Mr. Stoyko would do anything to harm her daughter but was concerned about what he might do to others living in the house if he consumed alcohol. Ms. MacIsaac did not want her daughter to witness Jason getting angry with others or being arrested by the police. [ 38 ] By October 26 she had been living with Mr. Stoyko for two weeks and a bit. She knew he was getting out of jail on October 8, 2010. Prior to his release from jail, she had been living at the shelter because she did not want him to be able to find her.

She was at the shelter for a couple of weeks. [ 39 ] In cross-examination, Ms. MacIsaac reiterated that the reason she was staying at a shelter was because she knew Mr. Stoyko was about to be released from jail and she did not want him to know where she was staying. She was then shown two emails (Exhibit 6 and 7), sent on September 23 and October 6, 2010 respectively, where she was asking Mr. Stoyko to resume contact with her. She had been contacted by someone from the victim’s office who advised the date when Mr. Stoyko was to be released. [ 40 ] She agreed that she was initially the one who contacted Mr.

Stoyko by telephone when he was first released from jail. She agreed that she was the one who was reaching out to Mr. Stoyko, trying to convince him to get back together. [ 41 ] She arranged to meet him for coffee on one occasion, on another they went to dinner and they also went to a movie together. She agreed that she went with Jason to buy him a cell phone so they could communicate together both on the phone and through text messaging.

Within a week of his release from jail they were living together, initially at the Sheraton Parkway and then at the Summit Motel. [ 42 ] Two or three rooms down from their room, Room 29, they met a couple, Sherry and Joe. They went back and forth a few times to each other’s rooms and had drinks and talked. They did not have housekeeping, although the housekeepers came with towels and offered, on occasion, to change the bed sheets. [ 43 ] During the October 26 incident, Ms. MacIsaac testified that she was screaming for someone to come and help her. Mr.

Stoyko pushed her out of the room several times, as she would come back into the room. She agreed that she was screaming when she was going in and out of the room. It was pretty loud but not as loud as she could scream. She agreed that in her statement to the police she said she was screaming “at the top of her lungs.” This probably was not as loud as she could have screamed. [ 44 ] Mr. Stoyko punched her, very hard, with a closed fist five times in the face. She testified this caused her nose and mouth to bleed. There was blood everywhere. It was all over the bed sheets and all over the carpet. Ms.

MacIsaac’s shirt and pants were covered with blood. According to Ms. MacIsaac it was all over the bathroom walls. She had to clean the carpet and the bathroom walls. She washed and bleached her clothes. She washed the bed sheets. The blood was everywhere. She did all of this cleaning sometime after the incident. [ 45 ] The next incident involved Mr. Stoyko throwing the front of a drawer at her and hitting her on the top of her head. She testified that she had the same concerns about going to the police and then being denied access to her daughter. This incident was not as severe as the October 26 incident. Ms.

MacIsaac’s explanation for going to the police after the second incident was that she “finally realized that eventually Mr. Stoyko was probably going to kill [her].” [ 46 ] She agreed that on October 8, the day Mr. Stoyko was released from custody, she sent a series of emails to him attempting to convince him that they should resume their relationship. (Exhibit 8) [ 47 ] When Ms. MacIsaac went to the police she showed them her cell phone that had the text messages that Mr. Stoyko had sent to her. (Exhibit 4) Her explanation for why Mr.

Stoyko’s text messages, which she said he sent her on October 27 when she was at the Newmarket courthouse, were not on her phone was because her phone did not have sufficient memory. [ 48 ] She agreed that she had deleted her text messages which she had sent to Mr. Stoyko from her phone before she showed it to the police. She testified she did not know that when she “deleted the sent messages that it would delete the whole thread.” [ 49 ] She agreed that she wanted her daughter, Sidney, to be living with her.

She was actively trying to change the situation by going to court because she wanted Sidney to live with her. She agreed that she thought it was unfair that Mr. Stoyko got to see more of Sidney because the judge had ordered the same access for both of them, but she was not mad about it. [ 50 ] In October she was trying to get Mr. Stoyko back with her so he was not with Sidney full time because she was concerned about his drinking and he had just been released for assault on his mother. She disagreed that she made the complaint to the police to keep Mr. Stoyko away from Sidney. She denied that Mr.

Stoyko told her that it was not working out between them and he was going to return home to live with his mother. [ 51 ] Ms. MacIsaac’s attention was drawn to a written record of her visitations with Sidney and she agreed that in August 2010 there were a number of access days that she cancelled or missed because of personal reasons. When confronted with the fact that she

missed a number of access visits with her daughter, Ms. MacIsaac testified that she suffers from post traumatic stress disorder, she was having a hard time for about a month and consequently, she doesn’t really recall a lot of what was happening in court. She disagreed that Mrs. Stoyko never denied her access after Mr. Stoyko’s arrest in August 2010. She was unable to refer to a specific date that she was denied access. The written record was not filed as an exhibit during the trial. [ 52 ] Mr. Patrick MacIsaac, Jacey’s father, was called as a witness by the Crown. Jacey called him from a motel.

She said she was hiding behind some bushes by a bus shelter. She and Mr. Stoyko had been drinking and she had passed out and was sleeping in the bed and she had a blanket over her head. Mr. Stoyko kicked her in the head while she was passed out. Jacey was crying when she called. It was between 10 and 10:30 p.m. [ 53 ] Mr. MacIsaac told her to catch the next bus and go to the bus terminal in Newmarket. He drove to the bus terminal at Yonge Street and Davis Drive and picked up Jacey. She was wearing a t-shirt and white stretch pants and flip flops. The weather was cold. He drove Jacey back to his house. [ 54 ] Mr.

MacIsaac has known Mr. Stoyko for 5-7 years. He has never witnessed any assaultive incidents between Mr. Stoyko and Jacey. When he picked Jacey up, he could smell alcohol off of her. [ 55 ] The audio statement of Sukhraj Sandu, dated November 30, 2010, was filed, on consent, by both counsel. He is the general manager of the motel. He met Jacey Desjardins a couple of times. She stayed at the motel from October 22 to November 15, 2010. She was staying there with her boyfriend, Jason. She checked out on November 15. They stayed in room 26. He never had any problems with either of them.

He spoke to them two times in the office and two times in the room. [ 56 ] There was no damage caused to the room, would have had a record if there had been any damage. They were cleaning the room themselves. The cleaning staff replaced the towels every 2 days and provided clean sheets as well. They would have noticed if there was any damage or there was anything out of the ordinary in the room. Nothing was ever reported to him in that regard by the maids. Last time he saw Jacey and Jason was on November 14. He saw them in the office and in their room.

He also saw Jacey go out of her room and into room 29 where a person by the name of Sharon was staying with her boyfriend. [ 57 ] He often saw Jason and Jacey leave in morning and return in the afternoon in a silver GT Grand Am 2003. Jacey would be driving. He did not see Jason when Jacey checked into the motel or when she checked out. Jacey told him that she and Jason would get into arguments and at times he could hear voices but it was never enough for him to call the police. [ 58 ] The front of the armoire’s fourth drawer does come off. It was on when the police and Mr. Sandu entered room 26.

Photographs were taken (see Exhibit 4) of room 26. The officer removed the front of the drawer when the photographs were taken. Position of the Parties [ 59 ] It is the position of Mr. McCallion that I should accept the evidence of Ms. Mac-Isaac that on October 26, 2010 she was assaulted by Mr. Stoyko and sustained the injuries which were observed the next day at the Newmarket courthouse. The Crown argues that the real issue in this case is how Ms. MacIsaac’s injuries were received. Ms. MacIsaac lied to the police and hospital staff as to how the injuries were sustained because of Mr.

Stoyko’s threat that if she told anyone that he assaulted her, he would prevent her from having access to her daughter, Sidney. According to the Crown, this is a reasonable inference for me to draw. [ 60 ] In his submissions Mr. MacCallion concedes that the evidence of the November 14 allegation is not as strong, although I should still accept her evidence. He points to the fact that Ms.

MacIsaac was not dressed appropriately for the weather when her father picked her up at the Newmarket bus terminal as being corroborative of her evidence of being assaulted and leaving the motel room. [ 61 ] According to the Crown, I should accept her evidence that she initiated contact with Mr. Stoyko through the emails before and after his release from custody because she wanted to get back together with him so that he would be spending time with her and not with Sidney. The Crown admits that there are a number of areas in Ms. MacIsaac’s evidence that were detrimental to her credibility; however, Mr.

McCallion argues that Ms. MacIsaac is someone who is trying to manage significant challenges in her life with few resources. [ 62 ] Mr. Mideo argues that in order to find Mr. Stoyko guilty I must accept Jacey Desjardins-MacIsaac’s evidence. When her evidence is examined there are numerous inconsistencies and a number of areas where it does not accord with common sense. It is Mr. Mideo’s position that Ms. MacIsaac’s evidence is too problematic for me to be satisfied beyond a reasonable doubt about Mr. Stoyko’s guilt. [ 63 ] The violent assault described by Ms.

MacIsaac; namely, her wrist being slammed in the door on more than one occasion, her being struck in the face with at least five closed fist punches to her nose and left cheek and that she was slammed into the wall and choked by her neck, is inconsistent with the medical records filed from the Southlake Regional Health Centre emergency records. She has no fractures of her bones, only bruises. Mr. Mideo argues that one would have expected to see more severe injuries than observed at the hospital if the level of violence described by Ms. MacIsaac occurred. [ 64 ] Ms.

MacIsaac also describes blood being everywhere, on the walls, on the floor, on the sheets and on her clothes, yet there is no evidence called by the Crown corroborating this. In fact, the evidence of the manager of the motel is that the cleaning staff did not report anything out of the ordinary with room 26. The police went into room 26 and took photographs. None of these photographs show any blood on the walls or the floors of the room. The front of the drawer is not on the floor when the police went in the room, it is intact. The room is not messy. There is no damage. [ 65 ] Mr. Mideo points to Ms.

MacIsaac’s evidence that she was screaming for someone to help her during the violent altercation with Mr. Stoyko. She was in and out of the room, yelling and screaming for help. Yet no one heard her screaming or yelling

for help. No one came to her assistance. When confronted about this she says that she was not yelling as loud as she could have, yet she had told the police she was “yelling at the top of her lungs.” Mr. Mideo argues, if this horrific violent attack did happen, would you not expect the victim of such an assault to yell for help as loud as they could. [ 66 ] Mr. Mideo points out that Ms. MacIsaac had a car at the motel. If she wanted to go to the hospital, why not drive there?

On November 14, why did she have to call her father and take a bus, why not drive away in her car? [ 67 ] If she had spoken to police officers at the Newmarket bus terminal asking for their card as she testified to: a young woman, upset and distraught, not properly dressed for the weather; would those police officers, in those circumstances, have allowed her to go on her way without asking her some more questions. [ 68 ] Mr. Mideo asks where are all of the incriminating text messages Mr. Stoyko was supposed to have sent Ms. MacIsaac while she was at the courthouse.

Were they erased because of the amount of memory on Ms. MacIsaac’s phone or is this a convenient explanation? Why were only her text messages to Mr. Stoyko, which might provide context, erased accidentally? [ 69 ] Her explanation that she went to the police because of the escalation of Mr. Stoyko’s violent behaviour towards her on November 14, which caused her to believe that someday he “could kill her,” does not make sense, given that the first incident, more than two weeks before, was by far the more serious allegation. There was no escalation of incidents. [ 70 ] Ms.

MacIsaac testified that she did not go to the police to complain about Mr. Stoyko’s violent assault because she believed if she did, Ms. Arlene Stoyko, would deny her access to her daughter. Mr. Mideo argues that when Ms. MacIsaac was pressed to provide examples of when access to Sidney had been denied she was unable to do so. This does not reflect someone who is concerned about being denied access to their daughter. Further, when pressed, Ms. MacIsaac admitted that there were a number of occasions when she did not exercise access to Sidney for personal reasons.

If she was “seriously worried” about being denied access to her daughter if she went to the police, what changed after November 14 to cause her to go to the police? [ 71 ] Finally, Mr. Mideo argues that it was Ms. MacIsaac who initiated contact with Mr. Stoyko to get back together. She testified that she did this because she was concerned about her daughter being around Mr. Stoyko when he was drinking or when the police were being called. Yet she did not know where Mr. Stoyko was planning to live upon his release from custody. Further, she knew that since January 8, 2010 Mr.

Stoyko was not to have any contact, directly or indirectly, with her or her daughter Sidney, except as authorized by Order of a Court of competent jurisdiction. She had a Family Law lawyer. She knew the Family Court procedures. Her explanation does not make sense. Analysis: [ 72 ] I have assessed the evidence called at this trial to determine whether the Crown has met his onus of satisfying me beyond a reasonable doubt as to Mr. Stoyko’s guilt in respect of the two allegations of assault. [ 73 ] Having observed Ms.

MacIsaac testify, and in reviewing her testimony I found that there were a number areas in her evidence that raise concerns about her veracity and which I believe are of considerable significance in determining whether her evidence is sufficiently reliable and credible to find beyond a reasonable the guilt of Mr. Stoyko. In my view, Ms. MacIsaac’s evidence is not sufficiently reliable or credible to find that the Crown has met his burden and onus. Let me explain. [ 74 ] I find that a number of areas of Ms.

MacIsaac’s evidence either do not make logical sense or they contain inconsistencies between what she said in chief and in cross-examination. I have set out below what I consider to be the most significant inconsistencies in her evidence and those areas that raise concerns about her veracity and credibility. 1. Her justification as to why she initiated contact with Mr. Stoyko prior to his release from custody was because she said she was concerned about Sidney being present when Mr.

Stoyko was drunk or when the police arrested him in the future or when he might engage in assaultive behaviour again with his mother. She wanted to get back together with Mr. Stoyko so he would be spending time with her and not with Sidney. In my view, the content of the two emails (Exhibit 6 and 7) is inconsistent with this explanation. 2. In both of these emails Ms. MacIsaac admits that her prior action of going to the police was for the purpose of preventing Mr. Stoyko from seeing his daughter.

September 23, 2010 : “We can do this, im not gonna fuck up no more, or put sid inbetween us , we both love her the same and I know you love me I feel it. Please hun call my cell, no more games, I cant do life with out and it sucks that I had to put u2 threw all this just to figure it out.” October 6, 2010 : “I know I ripped your heart out a thousand times and now no that keeping Sidney away from you was awful and no how you feel not seeing her cause my heart kills with out her.” 3. Mr. Mideo suggested that what Ms. MacIsaac was attempting to do was manipulate Mr.

Stoyko so that he could not see his daughter because she was upset that he was getting more access with Sidney than she did. She denied this; however, in the previous emails she admits her intention of keeping Sidney away from Mr. Stoyko in the past. 4. The further emails (Exhibit 8 from October 8, 2010) demonstrate that Ms. MacIsaac wanted to restore their family unit so that she and Mr. Stoyko and Sidney could be together again. In fact, her email says for Mr. Stoyko to “ have fun with sid I miss our family together. Have a good night baby, im sure you have a lot to think about.

I already know what I want and I wont stop till I have both you back .” In my view, these emails are also completely inconsistent with Ms. MacIsaac’s explanation that the reason she is trying to get back with Mr. Stoyko is to keep him away from Sidney because he will be spending his time with Ms. MacIsaac. 5. At no time during Ms. MacIsaac’s evidence in chief did she indicate that she was the one who had initiated contacting Mr. Stoyko to resume their relationship and cohabitation. In my view, Ms. MacIsaac deliberately left open the possibility that it was Mr.

Stoyko who had initiated the contact between them. Ms. MacIsaac provides no explanation for how it came to be that they started seeing each other after Mr. Stoyko was released from jail in October 2010. It was not until cross-examination that she admitted that she had initiated contact with Mr. Stoyko before he was released by emailing him. 6. The Crown’s argument that Ms. MacIsaac’s explanation for initiating contact with Mr.

Stoyko, even though she was aware he was bound by several court orders to stay away from her, was reasonable, in my view does not accord with common sense or with her intention as reflected in her emails. I do not accept Ms. MacIsaac’s explanation. She even indicated she was prepared to tell the police she had previously lied and that she was ready to go to jail. I am not certain what to make of this statement; however, in my view, this detrimentally affects her credibility. 7.

The fact that she lied to the hospital staff and to the police about how she received her injuries on October 26 by telling two different versions of events; also detrimentally affects her credibility. 8. Ms. MacIsaac testified that she did not tell the police the truth about what occurred at the Summit Motel because Mr. Stoyko threatened to prevent her from having access to Sidney, something that had happened every time Mr. Stoyko was arrested by the police. When she was asked to provide even one occasion that this occurred after Mr. Stoyko’s arrest in July 2010 she was unable to.

When she was presented with the entries in a log kept by Ms. Arlene Stoyko relating to Ms. MacIsaac’s visits with her daughter she agreed that there were a number of occasions that she herself cancelled her visit because of personal reasons. In my view, Ms. MacIsaac’s inability to provide even one instance where she was denied access demonstrates that she was being less than truthful in respect of this issue. I do not accept her evidence in this regard. 9. Her evidence that on October 26 she asked Mr.

Stoyko on two occasions after the assault to call an ambulance is completely inconsistent with her evidence that on October 27 she did not want to be taken from the courthouse to the hospital by ambulance. I find that Ms. MacIsaac description of what she says occurred on October 26 is inconsistent with her injuries that were observed at the hospital. Further, her description is inconsistent with the evidence that the cleaning staff did not find any blood on the walls, carpets or sheets or any damage in the motel room. 10. Ms.

MacIsaac’s evidence that she was screaming for someone to help her at the “top of her lungs” and her reluctance to admit that she was yelling as loud as she could demonstrates, in my view, that she had an agenda in giving her evidence. No one heard her screaming for help so she could not admit she was yelling as loud as she could. 11. Mr. Mideo asked Ms. MacIsaac why would she go to the police after the November 14 incident, wasn’t she still concerned about being denied access with her daughter by Mr. Stoyko’s mother?

Her response, for the first time in her evidence, was “I just finally realized that like eventually he’s probably going to kill me and I don’t want to really keep carrying on like this.” Mr. McCallion asked Ms. MacIsaac what she meant by this response in re-examination and the following is her evidence. A: “Well, it didn’t – it doesn’t cross my mind, it’s escalating.” Court Reporter: “I’m sorry, it doesn’t cross your mind or it does?” A: “It does – it does not cross my mind.” The Court: “It didn’t cross your mind?” A: “That he – I mean, sorry – um – I meant like I was worried like that he would eventually.

It didn’t cross my mind that he wouldn’t – sorry – kill me. Is it not making sense?” The Court: “Well I don’t understand that ma’am. It didn’t cross your mind that he wouldn’t – that’s a double negative.” A: “Sorry.” Mr. McCallion: Q: “If – I would just like to – to get some clarification about what you meant there if you…” A: “Okay.” Q: “…if you want to take a second and just explain what you meant by that.” A: “Um – I meant like if the fighting between us is escalating and I do worry – like I wouldn’t put it past him to get that angry and possibly kill me so I do worry about it.” In my view, Ms.

MacIsaac was struggling with her answers on this issue because it was something that she had not thought about at the time but rather, was something she had made up in response to Mr. Mideo’s questioning. 12. I have concerns about what happened to all of the incriminating text messages Mr. Stoyko was supposed to have sent Ms. MacIsaac while she was at the courthouse. These would have provided admissions by Mr. Stoyko of his assaultive conduct the previous night. Were they erased because of the amount of memory on Ms. MacIsaac’s phone or is this a convenient explanation to explain their non-existence?

In respect of the text messages Ms. MacIsaac did provide to the police, why were only her text messages to Mr. Stoyko, which would have provided context, erased accidentally? It was Ms. MacIsaac who assisted Mr. Stoyko in purchasing his cell phone at Wal Mart. 13. Finally, a significant discrepancy exists as between what Ms. MacIsaac told her father, Patrick MacIsaac, that Mr. Stoyko did to her on November 14 and what she told the police four days later. Her evidence in court and what she told the police in her statement is that Mr.

Stoyko had thrown the front of a drawer which had struck her in the head, after which she fled the motel room.

When her father picked her up at the bus terminal she told him she had been drinking and had passed out on the bed with a blanket over her head. Mr. Stoyko had come into the motel room and kicked her in the head and she had fled. These two versions of the events are completely different, which leads to the reasonable inference that one or both are untrue. This may be why Mr. McCallion took the position that the evidence of Ms. MacIsaac respecting the November 14 incident was not as strong.

In my view, this discrepancy raises concerns about her veracity and credibility generally. [ 75 ] Considering all of the evidence therefore I am not satisfied beyond a reasonable doubt of Mr. Stoyko’s guilt. As I have indicated above, the Crown originally advised me that he would be proceeding on the basis of R. v. F. (D.S.) , supra , yet none of the details of the prior acts of discreditable conduct by Mr. Stoyko in respect of Ms. MacIsaac were led by the Crown through her or any other witness.

I cannot say whether such evidence, if it had been called, would have caused me to come to a different conclusion. [ 76 ] Therefore, on the evidence before me, I am not satisfied beyond a reasonable doubt of Mr. Stoyko’s guilt and he will be acquitted of the two remaining charges; namely, assault with a weapon and assault. Released: March 21, 2011 Signed: “Justice Peter C. West”