ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
HEARD BEFORE THE HONOURABLE MR. JUSTICE J.M. PROSE
PROCEEDINGS AT TRIAL
S. BURKE, ESQ. — For the Crown
T. PAIN, ESQ. — For the Accused
THE COURT: All right, then, the matter of Willy Zane, you are prepared to proceed? MR. BURKE: Yes.
THE COURT: Counsel is prepared to proceed?
MR. PAIN: Yes.
THE COURT: Counsel’s name for the record?
MR. PAIN: It’s “Pain,” Your Honour. It’s spelled P-A-I-N; first initial “T”. This is Mr. Zane.
THE COURT: And on which charge or charges do you wish to proceed?
MR. BURKE: Count 1 on the Information, sir, only.
THE COURT: The criminal harassment charge?
MR. BURKE: Yes.
THE COURT: Thank you. Mr. Clerk, if he could be arraigned, please?
COURT CLERK: Sir, you are Willy Zane?
MR. ZANE: Yes.
COURT CLERK: Willy Zane stands charged between the 1st of February, 2005 and 17 June, 2005, in the City of Vaughan in the Regional Municipality of York and elsewhere in the Province of Ontario, knowing that Kristina Masey is harassed or being reckless as to whether Kristina Masey is harassed did, without lawful authority, repeated communicate directly or indirectly with Kristina Masey, thereby causing Kristina Masey to reasonable in all circumstances fear for her safety, contrary to the Criminal Code, s. 264.1(2) (b).
On July 22nd, 2005, the Crown elected to proceed summarily. Sir, how do you plead to this charge as read; guilty or not guilty?
MR. ZANE: Not guilty.
MR. BURKE: Your Honour, before you proceed further, I believe this lady’s name is spelled correctly, but I believe “Masey” is how it’s pronounced, just to clarify that for the record; but it is spelled correctly.
THE COURT: May I see the Information? Thank you. All right, Kristina Masey, M-A-S-E-Y, and that is the correct spelling?
MR. BURKE: Yes, it is, Your Honour. Thank you.
THE COURT: All right, thank you. Are there any other preliminary matters?
MR. BURKE: Your Honour, I would expect my friend — certainly the Crown would like an order excluding witnesses. My officer in charge is sick today, so I won’t need an exception for him, and I don’t expect that I would have any witnesses beyond Ms. Masey, Your Honour.
THE COURT: So there’s one crown witness?
MR. BURKE: Yes.
THE COURT: Is anyone asking me to make an order excluding witnesses?
MR. BURKE: I am; I understand there will be defence evidence. I don’t know the parameters of that, but if there’s anybody beyond Mr. Zane, I would ask that.
MR. PAIN: I don’t expect anyone beyond Mr. Zane, Your Honour, but out of an abundance of caution, perhaps Your Honour can make the order anyway.
THE COURT: All right, I don’t mind making the order. The difficulty, of course, is that I usually like to explain to the witnesses what that order means so that they don’t breach it inadvertently, but given what both counsel have indicated to me, it seems like I’d be talking to myself. So in the circumstances, since the crown has indicated their intention to proceed with one witness and since Mr. Pain has already indicated that if at all, Mr. Zane would testify, and he knows of no other witnesses, there doesn’t appear to be any need for me to make such an order.
MR. PAIN: Your Honour, may I request that Mr. Zane sit at counsel table, please?
THE COURT: All right, is that going to assist you with respect to defending him in this matter?
MR. PAIN: Yes, I would ask him to take some notes and whatnot.
THE COURT: All right. Any problem, Mr. Burke?
MR. BURKE: No, Your Honour.
THE COURT: Thank you. Mr. Burke, ready to proceed?
MR. BURKE: I am, sir, thank you. If I could call Kristina Masey to the witness box, please?
KRISTINA MASEY, SWORN
IN-CHIEF BY MR. BURKE:
Q. Good morning, Ms. Masey. Ms. Masey, may I ask — I’m going to start off by asking you a bit of a rude question; how old are you, ma’am?
Q. You have to keep your voice up a little bit, ma’am; I can’t hear you.
A. Forty-five; fort-four, I’ll be forty-five.
Q. And what do you do for a living, please?
A. Part-time reception, at the moment.
Q. Thank you. And where do you work?
A. Toronto Imaging.
Q. How long have you been there?
A. It will be a year in September.
Q. And what sort of company is that? What are they doing?
A. They do digital imaging.
Q. Where did you work before that?
A. At a company called Smart Systems Canada.
A. Smart Systems.
Q. What does Smart Systems do?
A. They manufacture magnetic cards for other companies.
Q. Ma’am, are you married?
Q. Who are you married to?
Q. Albert who?
Q. How long have you been married to him?
A. Twenty years this year.
Q. Now, ma’am, I understand that although you’re married to Albert Masey, a few years ago you actually started a relationship with another man; is that true?
Q. What is that man’s name?
A. Willy Zane.
Q. Do you see Willy Zane in the courtroom?
Q. Could you point him out, please? She identified the accused, Your Honour. Ma’am, how did you get to know Willy Zane?
A. We both worked at the same company.
Q. And which company was that?
A. Smart Systems.
Q. And what were you doing at Smart Systems when you met Mr. Zane?
A. I was accounts payable.
Q. And what was his position?
A. He was at the time V.P. Marketing .
Q. And did you two interact through your positions or did you just get to know each other from the office, or how did you get to know him?
A. We just small talked; got to know each other through small talk.
Q. I see. And when was this? When did you first meet him?
A. When I first started in 1999.
Q. And do you recall what year or what date your relationship went from being merely, you know, this is an acquaintance from work to being something beyond that? Do you remember when that was?
A. Approximately the end of 2003.
Q. And could you tell us how that came about, please?
A. We were just friends. We used to talk with confidence, like, the whole — you want the whole story?
Q. Well, not every single detail, but if you could just give the court a sense of how things went from being, you know, just this is a person I know from work to something more intimate than that?
A. We used to talk. We — he had issues at home and I had issues, and we used to just talk to each other and then we became closer and closer.
Q. When you say “issues at home,” are we talking about marital issues?
A. Marital issues.
Q. On both sides; you had marital issues, he had marital issues?
A. Not so much myself, but him.
Q. Okay. So you talked about these things and that led where?
A. We ended up having an intimate relationship.
Q. And, Your Honour, before I continue, I’m aware of no 276 application before this court, so the crown certainly concedes that by “intimate relationship,” “romantic relationship,” whatever term we wish to use, there was a physical relationship between these two; the crown concedes that. I assume my friend won’t be getting into any specifics of specific conduct.
THE COURT: Well, Mr. Burke I’m not sure that it’s necessarily relevant, given the allegations, that there be much detail in that regard.
MR. BURKE: No, no, and I just want to clarify that before I proceed further.
MR. PAIN: Your Honour, I don’t plan on getting into any specifics, but at the same time, I don’t believe 276 applies. We’re proceeding on the criminal harassment, not sexual assault.
THE COURT: Why deal with issues that aren’t relevant or not applicable? Let’s get on with the issues.
MR. BURKE: Fair enough, sir.
MR. PAIN: Thank you.
MR. BURKE: Sir, if I could just say, my friend is right; it’s not 276, but the common law would come into play.
BY MR. BURKE:
Q. So then you at some point had a romantic relationship with Mr. Zane?
Q. It developed into that. You were still married to your husband; is that true?
Q. For how long did your romantic relationship with Mr. Zane go on for?
A. Approximately two years.
Q. Was this something that yourself or Mr. Zane made public within your office?
Q. Did you two — well, let me ask you about you first — did you specifically wish to keep it quiet?
Q. Do you know if Mr. Zane specifically wished to keep it quiet?
Q. How many people were working in your office when this relationship started and was ongoing?
A. In our department, there was six.
Q. In your department, okay. And was your department physically separate from other departments in the company?
Q. For some period of time, ma’am, I presume you were happy with the relationship and wanted it to continue?
Q. How long was that period of time? So how long was it from the time that this relationship became a romantic relationship to the point where you, you know, didn’t want it to go on any further?
A. I’d say a year.
Q. A year. Now, within that year, had you decided within your own mind how far you had wanted this relationship to go?
Q. Had you ever had any plans of leaving your husband for Mr. Zane?
Q. Had you made that clear to Mr. Zane?
Q. How early in the relationship had you made it clear to Mr. Zane?
A. From the beginning.
Q. From the beginning. Now, was Mr. Zane content with you telling him, you know, this is only going to go so far, I’m not leaving my husband?
A. At the time, yes.
Q. What do you mean by, “at the time”?
A. He said we’ll just — he was happy with just being the way things were.
Q. Okay. Well, at what point in the relationship was that?
A. At the beginning, the first year.
Q. But did his apparent understanding of your ground rules ever change at any time?
Q. How did it change?
A., When he professed that he loved me and he also had bought me an engagement ring.
Q. How far into your relationship was that?
A. After a year.
Q. Now, in the point that he had bought you this engagement ring, and when you said it’s an engagement ring, is that just a conclusion you drew, or did he ask you to marry him?
A. No, he asked me to marry him.
Q. Was he still with his wife at that time?
Q. And you were still with your husband?
Q. And you and your husband have never split up?
Q. What was your reaction to him when he asked you to marry him?
A. I said I couldn’t accept it.
Q. How did he seem to take that?
A. He was surprised.
Q. When you told him you couldn’t accept it, he pursued it with you, though?
Q. In what way?
A. Not at that time, but at another time, I had at work, I had found the ring on my desk again.
Q. The same ring. How long after he initially asked you to marry him did you find the ring?
A. I’m estimating four months.
Q. Can you just explain this; he’s now asked you to marry him. Were you content to continue the relationship with him, you know, according to the parameters you were comfortable with, even though he had asked you to marry him?
A. My feelings changed a little bit, but I still was involved with him.
Q. Okay. So your relationship with him continued, okay. And did he persist in asking you if you would marry him, if you would leave your husband?
Q. And not to put words in your mouth, did he ever ask you if you would consider leaving your husband?
Q. About how many times would he have asked you that?
A. Quite a few.
Q. You’ve told us that even after he asked you to marry him, you continued to have a relationship with him? You have to say “yes” or “no”, ma’am, you can’t just …
Q. Okay. And you told us earlier at some point, though, you decided you didn’t want to continue a relationship with him; is that true?
A. At different times during the two years, I did try to end the relationship.
Q. How would you do that?
A. By telling him I couldn’t go through it anymore, the lying, I wanted it to be over, and on several occasions, he had reasons not to.
A. And that he couldn’t be without me.
Q. Okay, just to be clear, you said you couldn’t stand the lying; the lying to whom?
A. Family, my family.
Q. And you said he came up with reasons not to end it; what are you telling us by saying that?
A. He, on different occasions, threatened that he was going to hurt himself or that he couldn’t live without me. At one point he said — he started to drink, which he knew that I was against that. Another time, he bought me a book on how to survive the loss of a loved one.
Q. Aside from threatening to hurt himself, did he make any other sorts of threats about, you know, if the relationship were to end?
A. He just said he wouldn’t let me go, he couldn’t let go.
Q. Okay. And just to be clear, let me ask you, how far into your relationship did the first occasion occur when you indicated to him, you know, maybe you didn’t want to do this anymore and he convinced you one way or another to continue.
A. I would say after the first year, it happened every month.
Q. Okay. Now, ma’am, at some point did you become firm in your position that you wanted the relationship to end?
Q. When was that?
A. When I really wanted it to end was December 2004.
Q. And did you convey that to Mr. Zane that you were serious this time?
Q. How did you do that?
A. My husband had received a phone call at home from somebody at work suggesting that I was having an affair.
Q. And how do you know that? How do you know that your husband received this phone call?
A. He told me.
Q. Did he indicate whether it was a man or a woman?
Q. He said a woman had called. Did this person identify themselves?
Q. Did this person identify Mr. Zane at all?
A. Just said her boss; your wife is having an affair with her boss.
Q. And did your husband tell you this
Q. — that he received this phone call?
Q. Did your husband ask you whether there was any truth to this allegation?
Q. And what was your response?
A. I told him no, that it wasn’t true, that we were just friends.
Q. Now, in terms of in your own mind, did that event cause you to want to end this thing with Mr. Zane?
Q. So what steps did you take? Like, how did you convey to Mr. Zane that, you know, we’re through?
A. The next day, I didn’t return to work.
Q. Did or did not?
A. I did not return to work the next day.
A. I went on sick leave.
Q. Were you —
A. Because I wanted to end it.
Q. Okay. Were you ill?
Q. Okay. Was any other member of your family ill?
A. I had a daughter that was not well.
Q. Not well?
A. She was diagnosed with leukemia, so during the last six months before that, I was going through a really rough time.
Q. Okay, but I just want to be clear, so you did take a leave of absence from work?
Q. How long was that leave of absence?
A. Five months.
Q. And that started in December of 2004?
A. Yes, January.
Q. December or January?
A. Yes, December.
Q. Okay. I just want to be clear on this: had that been a pre-planned leave of absence?
Q. And you told us you had a daughter who was not well; you’ve told us that you were, you know, mentally feeling the strain. Was that on the basis of the relationship with Mr. Zane or something else in your life?
A. No, it was Mr. Zane.
Q. Because I just want to be clear, your purpose in taking this leave of absence, was it because of your daughter’s situation or because of your situation?
A. It was both.
Q. While you were on this leave of absence, did you continue to have any kind of contact or communication with Mr. Zane?
A. Just through telephone conversation.
Q. How frequent were your telephone conversations?
A. A couple times a week.
Q. Was he calling you from home?
A. No, I was calling from the hospital.
Q. Okay, you were calling him from the hospital. What was the tone of your interaction with Mr. Zane during that period?
A. I told — I told him that I wasn’t returning to work and he said that I had to return to work.
Q. You had to. Did he elaborate on that at all?
A. He just said or he’ll tell if I didn’t return to work.
Q. He’ll tell what?
A. His boss, my husband.
Q. Did you confront him with the fact that this call had been received by your husband by some woman?
Q. And did he have anything to say about that?
Q Did you ask him if he had anything to do with it?
A. Yes. He said no.
Q. Why did you continue — because you said you called him from the hospital — why did you continue to have telephone contact with him while you were on a leave of absence through which you were hoping to not see him every day?
A. He asked me, he made me call him every couple of days just to talk to him.
Q. Okay, well, you say “he asked me” and you say “he made me.” Did he just ask you to do it or did he force you to do it?
A. He told me to call.
Q. Okay, but were you not free to just say no, I’m not calling, don’t —
A. I was scared.
Q. Okay. What were you scared of?
A. That he would tell if I didn’t stay in contact with him.
Q. Is that the only reason you continued to have contact with him?
Q. You told us that you were in phone contact with him for two or three times a week; was that for the entire time you were on this leave of absence?
A. Yes, five months.
Q. Just to clarify, because we didn’t address this earlier, where were you living at that time?
A. 18 Cornerstone Court (ph.)
Q Where is that? What municipality is that?
A. Vaughan. Woodbridge.
Q. And where was your place of work at this time?
A. North York, or, Etobicoke.
Q. Okay. I just needed to clarify that. So just to get back to it, now, after your five-month leave of absence, did you go back to work at the same place Mr. Zane was?
Q. While you were on your leave of absence, did you have any face-to-face contact with Mr. Zane?
A. Not that I recall, no.
Q. Are you clear what I’m asking?
Q. Did you meet him anywhere?
Q. Or did he come to see you at all?
A. Not that I recall.
Q. You went back to work?
A. I went back to work because he told me I had to come back to work.
Q. Fair enough. When you went back to work, was it in the same capacity? Were you still having face-to-face direct contact with Mr. Zane?
Q. Did you resume your relationship with him in terms of your seeing him?
Q. Why did you do that?
A. I was scared.
Q. Scared of —
Q. — the same thing you told us about earlier?
Q. Was there any part of you, once you went back to work after your leave of absence, that was with Mr. Zane because you wanted to be with him?
A. There was certain times, yes.
Q. Can you explain that for us, please?
A. I looked forward to having someone to talk to, where I would do in, in the morning, to have a chat. On a friendly basis, I kept telling him, as friends.
Q. Aside from being afraid that he would tell your husband, did you have any physical concerns for your safety?
A. No, just that when he — he was going to harm himself, that I was worried that he might harm me.
Q. When did that specific concern sort of arise, in your head?
A. Like the dates?
Q. I appreciate you can’t tell us the exact date, but at what point in the relationship did you develop this concern that he’s told me he might harm himself and I therefore have a concern that he might hurt me; what point in the relationship did that —
A. Near the end.
Q. We’ll deal with that shortly. Just getting back to the point at which you would come off of your leave of absence, five months, this is May or June of 2005, is it?
Q. Now, did you at some point, after going back to work, try to convey to Mr. Zane that you wanted to end it?
Q. How many times did you do that after you went back to work?
A. Ten. A lot.
Q. And how did he respond to these things when you would tell him this?
A. He would call my cell phone, he would call home, he would call me at work all the time on the phone and if I didn’t pick up, he would have me paged or he would — he wouldn’t take no.
Q. Okay. Well, let’s just back up a little bit. At some point or at any point did you ever make it clear to him we’re through, we’re done, I don’t care what you say?
A. Several times.
Q. Okay. And you had told us earlier that you had said things like this before but he had told you he was going to tell your family. Did you at any point say anything to the effect of even if you tell my family, I don’t care, we’re done?
A. Right, near the end, after the letters.
Q. Okay. We’ll talk about the letters shortly. When you say you were getting these phone calls on your cell phone —
A. My cell phone, my husband got phone calls. For a year we were getting phone calls at home.
Q. For a year. I don’t want to get confused here over the timeline. When did you start —
A. I think 2004.
A. They started, these calls. And even on my husband’s cell phone.
Q. I think you told us that 2004 you were still having a consensual relationship with Mr. Zane?
A. (non-verbal response)
Q. You can’t just nod your head, ma’am.
Q. You need to give a verbal response. I just want to go back to 2005. You go back to work after a leave of absence, you try to make it clear to Mr. Zane that it’s over, is that true?
Q. And his response, I believe you said, was — I don’t want to put words in your mouth. You tell him it’s over; how does he respond to that? Is that with the phone calls, as well?
A. Yeah, he — he would not take no for an answer. He would try to sweet talk me and try to stay — things for us to stay together and it just — my feelings just grew further and further apart from him.
Q Okay. How many days a week was he calling you?
A. Every day.
Q. How many times a day?
Q. Over what time frame?
A. During the work day.
Q. And was he also calling your home at this time; in this time frame, I mean?
A. No, this was the evening.
Q. I’m sorry?
A. No, that was in the evenings, the calls at home.
Q. Okay, perhaps my question is not fair. He was calling you daily at work, you told us, about ten times? You have to answer —
A. I worked with him, so, yeah, he would call me.
Q. Okay. So in this time frame, that is, after you came back from your leave of absence, was he calling you at home after you told him it’s over, I don’t want to do this anymore?
Q. How many days out of a week were you getting calls at home from him?
A. I don’t know if they were directly from him, they were people paging us. It’s hard to explain. There was phone calls every single night of somebody, a paging company saying that I — we had calls and pages. I think this was all done through the internet. We did report this to the police also.
Q. Okay, so somebody was paging you, you didn’t know exactly who?
A. I had an idea.
Q. Okay. This number of pages you were getting, how many pages were you getting an evening or a day at home?
A. We would get approximately two or three an evening.
Q. Was that every day?
Q. Was that more than you normally got at your home?
Q. And in relation to when you told Mr. Zane after you came back from your leave of absence, it’s over, I don’t want to do this anymore, was there any relation between the frequency of these pages increasing around that time?
A. The pages stopped and then I started receiving the letters.
Q. Okay. When did the pages start?
A. They were quite high for about a year, even though I was involved.
Q. Aside from these phone calls and these pages — actually, let me just clarify — the phone calls you were getting, were you speaking to Mr. Zane or was somebody —
Q. — just calling?
A. Somebody calling, saying that I had called, I had paged them.
Q. Okay. Did you know whose number you were calling back?
Q. So Mr. Zane, you didn’t actually hear his voice —
Q. — or anything? Sorry?
Q. Was Mr. Zane continuing to have any sort of communication or contact with you, you know, where you knew it was him? Like, was he coming up to you to speak to you? Was he sending you emails or anything?
A. During the day, I had contact with him every day until I left.
Q. Okay. I’m just a little confused here, ma’am, we’re going to have to back up a little bit. You said you got phone calls at work after you came back from your leave of absence.
A. Yeah, just during the day, we talked — we still have to talk; he was my boss.
Q. Okay. I just need to be clear, ma’am, we weren’t there. So you know that was Mr. Zane you were speaking to?
Q. Okay. Now, was he talking to you about work matters or was he talking to you about the relationship?
Q. Was he talking to you about your relationship over your objections?
Q. So when he started talking about the relationship, did you ever reiterate to him, look, it’s through, I don’t want to —
Q. You did.
A. Several times.
Q. So when you say that you were receiving calls and you didn’t know who it was, that was in the evening, is that right?
Q. We just needed to be clear on that. But aside from these telephone calls, was Mr. Zane having any other sort of communication with you over your objections in terms of the status of your relationship?
Q. Now, ma’am, you said you went back to work in about May of 2005, right?
Q. And when did you go to the police? Do you recall? You don’t have to recall an exact date, but do you remember the month you went to the police?
A. It would be June.
Q. June of 2005?
Q. What caused you to decide to go to the police?
A. We were receiving letters —
Q. Who is “we”?
A. — at home.
Q. Who is “we”?
A. My house, my family.
Q. So just so we’re clear, there’s you and your husband, and then do you have any kids?
A. Yes, two.
Q. How old are they?
A. Fifteen and seventeen.
Q. Is that how old they are now or how old they were when you went the police?
A. That’s how old they are now.
Q. Boys or girls?
A. Two girls.
Q. So you said you started receiving letters, is that right?
Q. Where were you receiving these letters?
A. At my home.
Q. And just to be clear, you said “we were receiving letters.” Were these letters coming in the mail?
Q. Who were the letters addressed to?
A. My husband, Albert.
Q. And how did these letters come to your attention?
A. I received it when I got home from work in the mail.
Q. So you actually took the mail?
Q. And did these letters, the envelope had your husband’s name on it, did it?
Q. And your address, obviously?
Q. Was there any return address —
Q. — on the outside of the envelope? Now, how many of these letters came to your attention at one point or another?
A. I think overall there were six.
Q. Over what time frame did these letters come to your attention? To your knowledge, when was the first one?
A. Six weeks before I went to the police.
Q And how frequently were you getting these letters?
A. Twice a week.
Q. You say these letters were addressed to your husband. Now, do you just open your husband’s mail or —
A. Yes, I open it.
Q. Is that something you and your husband —
Q. — do — you do it anyway?
Q. And, Your Honour, if I may, my officer in charge is ill today and I don’t have the original letters; however, my friend does not have an objection to me putting photocopies to the witness. There is no dispute as to the accuracy of the copy.
MR. PAIN: That’s fine, Your Honour, I have no objection.
THE COURT: Thank you.
BY MR. BURKE:
Q. Thank you. The only thing I’ll point out and I have pointed this out to the witness is that these are the disclosure copies, so addresses and things are blacked out; that’s the only interference with the integrity of the original letter. Ma’am, what I would like to do is present you with five letters and perhaps you can just take some time looking at them, and if you can figure out what order they came in, great; if you can’t, don’t worry about it, and we’ll talk about them one at a time.
A. Could I get my glasses?
Q. Certainly. I’ll present them one at a time. It’s a photocopy of a document, and just take a moment to take a look at it, and then I’ll ask you if you’ve ever seen the original of that copy.
A. I’ve seen the original.
Q. Okay. Now is that one of the letters you received in the mail?
Q. At your home?
Q. Just before we get into the contents of the letter, could you just describe for the sake of the record what form that that letter takes?
A. What this is about? Like what this
Q. Well, the top part, if I see correctly, there’s something about the Toronto Tribune there; is that right?
A. Yes, this is a person, Miranda, that somebody writes into the Tribune and asks a question and she tries to give advice back.
Q. Okay, so there’s a copy of something from the Toronto Tribune.
A. There’s a copy and then there’s a computer written little statement at the bottom that somebody has written.
Q. Okay. Perhaps what I’ll ask you to do is read the thing into the record of the Toronto Tribune, we’ll deal with that first, and then I’ll ask you to read in the thing at the bottom that likes somebody may have typed on later, okay? Could you just read that part from the Toronto Tribune, please?
A. Okay, it says, “Third party not needed in office affair.”
Q. And that sort of is a headline?
A. Yeah, and then it’s a question that somebody is asking this person.
” … Over the past year, a colleague with two kids has been having an office affair with a recently separated male supervisor. They think they are undetected but are unaware that many of their co-workers are heartsick. They’re both nice people with a right to private choices. The concern is that their children are going to be the real victims of confusion, pain, and loss. There might still be slim hope for the woman to rethink where she’s heading. Her husband apparently adores her. Should I mind my own business and quietly ignore what I know, especially if they’re not looking for any help? …”
That’s the question.
A. And her answer was:
” … Your concern is admirable but intruding is not. The best you can do is ask your co-worker if she wants to talk. You say that some of her behaviour has made you aware she might appreciate a caring listener, but if there’s no pick-up on the invitation, forget it. These appear from your description to be consenting adults. Also, you have no idea what goes on in her home; adoring to you might be overbearing to her. Her kids may already be suffering a poor family environment, or she’s been swept away by an affair and will have to muddle out of it herself. That’s when she may truly need your support and friendship. Unless their affair is affecting the office atmosphere beyond gossip, MYOB — mind your own business — is the best route for now …”
Q. Okay, so that is the part from the Toronto Tribune. I understand below that, you’ve indicated it looks like somebody has typed a message. Is this message directed any person in particular?
A. My husband.
Q. Is his name there?
A. Alberto. It’s Albert, but Alberto.
Q. Okay. Would you read the note that is apparently written for Alberto?
A. It says,
” … Alberto, you were warned. The affection between them is so obvious by the way they look and interact with each other every day. Egg on your face. Next time, listen, fool ”
Q. Your Honour, if that could be marked as the first exhibit?
THE COURT: Is there a date on that letter?
MR. BYRNE: I’m afraid there’s not.
THE WITNESS: April 21st was the …
MR. BURKE: Yeah, the column –¬
THE WITNESS: The column.
MR. BURKE: — from the Toronto Tribune is dated April 21st. There’s no date on the actual letter itself.
THE COURT: May I see that letter, please? Thank you.
MR. BURKE: And, Your Honour, just for the sake of the record, I do have photocopies of the envelopes that these letters came in. Unfortunately, the photocopies are basically illegible on the front of the letter, so — or the front of the envelope, I should say.
THE COURT: Very well, the document will be entered as Exhibit 1, referring to the Toronto Tribune article dated April 21, 2005.
— EXHIBIT NO. 1: Article from Toronto Tribune with typewritten note
BY MR. BURKE:
Q. Now, ma’am, just so we try to give some order to these things, that letter you just read, are you in a position to tell us whether that’s the first letter or second letter? I understand if you can’t, but are able —
A. I don’t think it was the first one.
Q. Okay, fair enough.
A. It says “you’ve been warned.”
Q. Okay. Let me present you with some other ones, if I may. One at a time, of course. Now, the second letter I’m going to give you looks like the same article from the Toronto Tribune, the same column from the Tribune, just take a look at it. Do you agree it’s the same one?
A. Yes, it’s the same column.
Q. Beneath that column, is there another letter or is there another sort of personalized message there?
Q. Who is that message to?
Q. And what does it say?
A. ” … I have undeniable proof how intimate they are. You were warned. You only have yourself to blame because you did nothing for 18 months. I guess you don’t care.
You’re a fool. Stay tuned …”
Q. Your Honour, if that could be the next exhibit, please? And, again, there’s no date on it, sir, except for the April 21st, 2005, entry from the Tribune.
THE COURT: Let me just ask you, is there any notation that may have been added to it in the top right corner?
MR. BURKE: Oh, the — sorry, the number “2” there, sir?
COURT CLERK: I put that there, Exhibit 2.
MR. BURKE: Aside from the number “2” that the court put there —
THE COURT: I see, that is the only distinguishing feature, then. All right, well, then Exhibit 2 will be a further letter with reference once again to the Toronto Tribune article of April 21, 2005.
— EXHIBIT NO. 2: Further letter with reference to Toronto Tribune article
THE COURT: May I see that document, please?
MR. BURKE: I believe the personalized message at the bottom is different; it’s similar, but I believe it’s not identical.
THE COURT: The only thing that appears to be different is the bolded message at the bottom.
MR. BURKE: Yes.
THE COURT: Exhibit 1 ends with the word “fool; Exhibit 2 ends with the word “tune”, or words, “stay tuned.” That will be Exhibit 2.
MR. BURKE: Thank you. Your Honour, I can indicate the next two letters that I intend to present to the witness, the Toronto Tribune portion of it is the same.
BY MR. BURKE:
Q. Ms. Masey, I’m going to present you with a third letter. Again, just take a look at it and make sure that the Toronto Tribune part is the same.
A. That part’s the same, it says Alberto Masey, (18 Cornerstone) (ph.) which is our address,
“… You were warned that your wife was continuing to have an affair and for 18 months, you still do nothing. Hopefully someone will explain why you are such a fool. This is no joke ”
Q. If that could be the next exhibit, please, Your Honour?
THE COURT: Exhibit 3 will be another letter with the same Toronto Tribune article reference. I note added at the bottom the last word being “joke”.
— EXHIBIT NO. 3: Further letter with reference to Toronto Tribune article
BY MR. BURKE:
Q. Ms. Masey, I’m now going to present you with a two-page letter and then it appears we have the same version of the Toronto Tribune column. But you can take a look at that and confirm that for us.
A. Yeah, it’s the same except for the bottom, it says,
“… Alberto, this is my third letter to you and it will soon prove without a doubt that your wife has been having an affair for the past two years. In the meantime, to make sure the secret is out and to let everyone know you are a fool, I have sent the attached letter to all the people and that are on here …”
All my neighbours.
Q. How many names are there?
Q. Okay, now, when you say they were your neighbours, were you living in a house at that time, a condominium?
A. I live in a house on a court.
A. So it was every house on the court.
Q. Is there anybody in that group of names who doesn’t live in that court with you?
A. No, not that I’m aware of.
Q. Okay, if that could be the next exhibit, Your Honour?
A. And at the end, it says,
” … This is no joke, remember, cheaters lie for fear of getting caught. Ignoring the facts now will only increase your stupidity later.
Q. If that could be the next exhibit, please? Thank you. I’ve got a final —
THE COURT: Just one moment, if I might see that, please? Thank you. Exhibit 4 will be another letter with the same Toronto Tribune article, referring to a list of names and being a two-page letter.
— EXHIBIT NO. 4: Two-page letter with reference to same Toronto Tribune article
BY MR. BYRNE:
Q. Thank you, Your Honour. Ms. Masey, I’m just going to present you with a fifth letter; and does that look any different from the last ones?
A. Yes, it only has the question part and it doesn’t have the answer; that has been taken out.
Q. And just to be clear, when you say it only has the question part but not the answer, that’s in the Toronto Tribune portion?
A. The Toronto Tribune.
Q. Okay. Is there any sort of a personalized message on the bottom of that?
A. Yes. The message at the bottom,
“… Alberto even though you are a fool, you should know the truth. They’ve been” .
Q. Read exactly what’s there, ma’am.
A. ” … fucking constantly for the past two years, hot and heavy. This we know for a fact, the letters will continue bit by bit until the full truth is told. Your family will know the truth, your kids will know the truth, and your neighbours will know the truth. This letter has been sent to multiple people to make sure the truth is not hidden, just like this letter has been sent to your neighbours again. She is a skank. At least he had the decency to leave his marriage to fuck her …”
Q. And, again, if that could be the next exhibit.
THE COURT: Exhibit 5 will be another letter with the Toronto Tribune question and no answer, and a note following.
Letter with Toronto Tribune column, question and no answer, with note following
— EXHIBIT NO. 5:
THE COURT: Could I just see the other exhibits for a moment, please? Thank you.
MR. BURKE: Your Honour, if I could interrupt briefly, I understand we’re getting an offer of assistance …
— Other matters dealt with
THE COURT: Thank you, Your Honour; thank you, Ms. Masey. Sorry about that.
BY MR. BURKE:
Q. Ms. Masey, these five letters that I’ve showed you, are these all letters that came to your house?
Q. And are all of these letters that you personally opened or were any of these brought to your attention by your husband or your children?
A. One of them, my daughter brought to me, but that was only because she was a friend of one of our neighbours, she brought that one to my attention. There was a couple more letters that were received that we did not open that the police have, that were taken to the police; they were unopened.
Q. Okay. But the five that obviously had been opened, the ones that we have in the courtroom today, had you read all of these before at some point, or were there any that I gave you that you’d never seen before?
A. No, I’d read them.
Q. You’d read them all, okay. Now I just want to be clear on this, did you receive any of these letters from other people, either your husband or other family members or other neighbours?
A. My husband received one that his brother had received. It had my husband’s name on it, but it had my brother-in-law’s address on it.
Q. Okay. And I just want to be clear how you know that; did your husband tell you that his brother had given him a letter that —
A. His brother had called to say he had received this letter, was it a mistake.
Q. Okay. Did you ultimately actually have that letter in your hand at some time and read it?
A. He brought it to us.
Q. Okay, and you read it, did you?
Q. And then these five letters, how did it make you feel to be receiving these letters?
A. Words can’t explain. It was humiliating, disgusting, degrading. I was devastated.
Q. Did you, in your own mind, have a belief as to where these had come from?
Q. And where did you believe they’d come from?
A. I believe that Willy Zane had sent them.
Q. Okay. Now, ma’am, you had told us earlier that when Willy would say to you things such as, you know, I’m going to hurt myself, that caused you fear, right?
Q. Now that you were receiving letters that you believed were from Mr. Zane, aside from being humiliated and embarrassed by these things, did you develop any similar concerns?
A. Yeah, I was scared what would happen next, what would be his next step, and that’s when I decided to tell my husband.
Q. Okay, the truth about the relationship?
Q. And did you do that?
Q. And how soon prior to doing that did let me back up — how soon prior to going to the police did you tell your husband the truth about your relationship with Willy Zane?
A. Just a couple days before.
Q. And, ma’am, when you went to the police, what was your desire? He ended up being charged, but when you went to the police, what was in your mind as to what you wanted to see happen?
A. I wanted to find out who was harassing me, myself, and my family.
Q. Okay. I thought you had told us earlier that you believed it was Willy Zane?
A. I do.
A. I wanted to prove it.
Q. You wanted the police to look into this. The court’s indulgence for a second … Now, ma’am, these letters, I believe you said that all the letters you receive at your house were addressed to your husband, is that true?
Q. Did you ever receive any letters or notes or postcards, anything, at your house addressed to you that in any way concerned your relationship with Willy Zane?
Q. Did you ever get any anonymous emails or messages left at your office, on your desk, on your telephone, anything about your relationship with Mr. Zane?
Q. Did you ever have any conflicts with anybody in your office, in your department, that you felt had anything to do with your relationship with Mr. Zane?
A. There was only — there was two girls that had worked there, which at the time when my husband first got the call a year before, it might have been them.
Q. What do you mean, might have been?
A. That made the phone call.
A. So I think they had an idea there was something going on.
Q. Okay. Did you ever discuss this situation with either of them?
A. Yes, I went and questioned them and I asked them both if they had anything to do with the phone call.
A. And they had both said no.
Q. Okay. And, I’m sorry, were they still working there at the time you received these letters?
A. One was, the other one was not.
Q. And how long had she been gone?
A. About a year.
Q. Did these people know your personal address?
A. No, but they could probably access it.
A. Through work.
Q. Did they know your husband?
Q. You told us you did confront these women and I just want to be clear on this, either before you confronted them or after, did you ever have any messages of a similar nature left at your workplace, at your home, that were directed towards you specifically?
A. Not that I can recall.
Q. Did you ever speak to Mr. Zane about the fact that these letters were being mailed to your house?
Q. What did you say to him about it?
A. I asked him if he was sending them and he said no.
Q. Okay. Did you ask him if he was ever getting letters like this?
Q. Did you ever ask him —
A. He would have told me, though, if he was.
Q. You feel he would have told you?
Q. But you didn’t ask him?
Q. Did you ever ask him?
Q. Okay. Did you ever ask him whether his ex-wife was receiving letters of this nature from anyone?
Q. All right, ma’am, I don’t have any further questions.
THE COURT: I think before we begin cross-examination, Mrs. Masey has been in the witness box for some time, we’ll take a short recess now and then when we resume in twenty minutes, we’ll start the cross-examination.
— A BRIEF RECESS
THE COURT: Ms. Masey, if you would please re-take the stand. You’re still under oath, ma’am. Mr. Pain?
MR. PAIN: Thank you, Your Honour.
CROSS-EXAMINATION BY MR. PAIN:
Q. Ms. Masey, you had testified in-chief that you took a leave of absence in December of 2004. I’m going to suggest to you that leave was actually December 2003?
Q. Do you agree that it was December 2003?
Q. Okay. I’m going to ask you to keep your voice up, please? And, in fact, you left December 9th of 2003 on a stress leave?
Q. Is that correct? Okay, and the day before that was the date that your husband received a call, correct?
Q. And you said that call was from — it was a female voice?
Q. And the call originated from the company?
Q. Okay. And that was a call warning your husband that you were having an affair with your boss ?
Q. Okay. And would you agree with me that in the months prior to that call, there was basically what could be characterized as a smear campaign against you, rumours that you were having an affair with your boss?
Q. Okay. And, in fact, on one occasion, you found a notice on a bulletin board just outside your office and it was basically a poster that said “Ten signs of an office affair”?
Q. Okay. And you felt that that was directed at you?
Q. And you were very upset by that? Correct?
Q. And you called Willy and told him about it and he came and he shredded it right away?
Q And he told you not to worry about it, correct?
Q. And then twenty minutes later, you found the same poster back up on the bulletin board?
Q. “Ten signs of an office affair,” correct?
Q. And you called him again and he shredded it again for you?
Q. And certainly you didn’t suspect him putting those posters up, did you?
A. It could be possible, I don’t know.
Q. It’s possible, but you didn’t suspect him, though, did you?
Q. Okay. Now, there were two women that you referred to that worked at your company there. One was Cindy?
Q. Cindy Combs?
Q. And the other woman there was a woman named Joan Wise, correct? W-I-S-E?
Q. Okay, and they were good friends, correct?
Q. And, in fact, you had suspected that it might be them behind the posters?
Q. And the rumours?
Q. Okay. Now, before you worked at Smart Systems, you worked at another company, correct?
Q. And you had received a phone call from a former co-worker at your other company; his name was Jerry? Do you remember that?
Q. And Jerry had said to you that I’ve heard rumour that you’re having an affair with your boss and you’re being watched and you should be careful. Do you remember that?
A. He just said that I was being watched, be careful. I don’t know the exact conversation.
Q. Okay, and he implied that he was aware or if there were rumours that you were having an affair, okay. And, in fact, this person, Jerry, is related to Cindy Combs?
Q. Is he not?
Q. And what is their relationship?
A. I think —
Q. Is he her brother-in-law?
A. Yeah, brother-in-law.
Q. Okay. And then so you left on December 9th of 2003?
Q. And would you agree with me that you came back May of 2004?
Q. So it wasn’t May of 2005?
A. Right, my error.
Q. And then in your absence, that’s when Cindy Combs was terminated or fired, is that correct?
Q. Okay. And would you agree with me that after you came back, your relationship with Joan Wise was somewhat strained?
Q. Because she blamed you for Cindy being gone?
Q. And she believed that Willy had gotten rid of Cindy to make room to bring you back?
Q. And in essence she was no longer your friend, correct, Joan Wise?
Q. Okay. But you’re aware that the two of them were still meeting for lunch?
Q. And you know that because Cindy Combs would show up at your company at lunch time to meet with Joan?
Q. So you saw it first hand?
Q. Okay. And I’m going to ask you to turn your mind to the letters. The letters that you received, the top portion being the column from “Dear Miranda,” do you agree with me that that’s written from the perspective of a person who is observing an affair, correct?
Q. Okay. It’s not someone involved in an affair, they’re observing the affair.
Q. Okay. And the notes on the bottom addressed to your husband are also from the perspective of someone who is observing an affair, not someone involved in the affair?
MR. BURKE: Your Honour, I have an objection. I think what my friend is putting to the witness is certainly something that’s proper for argument. I think the witness could probably tell us facially what appears to be in the wording of these personalized comments to Alberto, but my friend is asking for an opinion as to what this is. I mean, that’s something I think that he and I may have to argue at the end of the day. I don’t know how this witness can say, you know, “in my opinion” it seems that this is from a certain perspective of a third party. I mean, I think any of us reading it can draw certain conclusions, but …
THE COURT: Well, if I understand the evidence correctly, these letters were not received by this witness, in any event.
MR. BURKE: Were not?
THE COURT: Received by this witness, in any event. She may have collected the mail, but they were not addressed to her.
MR. BURKE: That’s true, that’s true, and I think supports my objection all the more. It’s just that much more remote. I mean, my friend — obviously this is a strong point of argument that I’m sure he’ll want to make, but I don’t know where it gets us by asking this witness her opinion.
MR. PAIN: Okay, that’s fine, Your Honour, without arguing the point, I can move on.
THE COURT: Carry on.
BY MR. PAIN:
Q. Now, one of the letters refers to you, using the word “skank.” And would you agree with me that Willy Zane never used that type of language with you? He never called you a “skank” or derogatory names like that?
Q. Okay. … after you found that first letter, you actually intercepted that letter at your home, is that correct?
Q. Okay. And at the time, you weren’t aware that it had been sent to your brother-in-law?
Q. Okay. And I’m going to suggest to you, ma’am, that you ripped it up and got rid of it because you weren’t aware that anyone else had received it; you didn’t want your husband to see it?
Q. Okay. And you called Willy from a pay phone and told him that you had received this letter and that you’d ripped it up and gotten rid of it?
A. I had asked him if he had sent it.
A. If he had anything to do with it.
Q. Did you call him that day?
Q. And tell him you had gotten this letter —
Q. — and ripped it up?
Q. Okay. I’m going to suggest to you, as well, ma’am, that after you got that letter and made the decision that you were going to try to leave, you’d taken steps to leave your home and go and stay with your mom; is that correct?
A. No, I was going to leave because I was scared of my husband finding out. And I was also scared if it was Willy. I just wanted to run away, that’s just how I felt.
Q. Okay. And at that point, your husband —
A. I wasn’t leaving to be with Willy.
Q. Okay. And at that point, your husband called up your family members and many of your friends to come over to try to convince you to stay and not leave?
A. I’m not sure.
Q. You don’t remember or you’re not —
A. No. I’m not —
Q. I’m sorry?
A. No, I don’t remember people being there.
Q. Okay. Do you remember your daughter running away that night because she had found out that you were trying to leave?
Q. And she had gone and stayed with a friend that night and that had upset you very much?
Q. And you realized that if you left, that would be very hurtful to your kids?
Q. And if they found out about this relationship, that would be very hurtful to your kids?
Q. And that week you took the rest of the week off work, is that correct?
Q. And then you got the second letter, the one — I’m going to suggest to you the second letter was the one that speaks about undeniable proof?
Q. And I’m going to suggest to you, ma’am, that you called up Willy and you told him about the letter and the two of you tried to figure out what the undeniable proof could be?
A. That was part of a conversation, yes.
Q. Okay, so you told him what the letter said and the two of you were trying to brainstorm figuring out what this undeniable proof could be, correct?
Q. And then you told him about the Miranda article and told him where to find it on-line and asked him to go and look at the article?
A. I didn’t tell him where to find it, he knew exactly where it was, what I had.
Q. Okay, but you’re telling him about the article and you’re asking him to look for it, correct?
A. He looked it up.
Q. Okay. And then you wanted to try to find out who was sending the letters, correct?
Q. And he helped you draft a letter, I’m going to suggest, to the Toronto Tribune asking them to reveal where that letter came from, correct?
A. To see if I could find out, yes.
Q. And that letter that he drafted up was actually done up in your name so that you would get the response?
Q. And then, of course, the response you got back was they can’t reveal that information.
Q. Okay. And then I’m going to suggest to you, ma’am, later on you got the third letter, which was the letter indicating all the letters had been sent to your neighbours?
Q. Okay. And just for clarity, that would be Exhibit No. 4. And you called up Willy to discuss that letter with him?
A. At that time, I’m not sure I told him about that particular letter or not.
Q. Okay. Well, I’m going to suggest to you, ma’am, you called him up and you told him that because it had been sent to your neighbours, there was no way you could hide it from your husband and that the best thing to do was just tell him?
A. No, that’s not true.
Q. And I’m going to suggest to you, ma’am, that you told Mr. Zane that your brother-in-law, who had received one of the letters, was pushing for you to go to the police?
A. No, that was my decision, he didn’t push me.
Q. So no one had suggested to you that you should take this to the police?
A. My husband and myself.
Q. I’m going to suggest to you, ma’am, that although you maintain that you told your husband the truth, you, in fact, have not told him the truth about your relationship with Mr. Zane? Do you agree or disagree?
A. No, I did tell him.
Q. Okay. And did you tell him about the intimate nature of your relationship?
A. Yes, I did.
Q. Well, I’m going to suggest to you, in fact, what you told him is that there was some hugging and kissing, but there was never any sex.
A. That’s not true.
Q. I’m going to suggest to you, ma’am, that you once told Mr. Zane that if your husband ever found out about the affair, that you would be on the front page of the newspapers?
A. That who would be?
Q. That you would be. Implying that —
A. That was just a — yeah, part of a conversation.
Q. Implying that he would be very upset, to say the least.
Q. And, in fact, you were afraid of how he might react if he actually found out you were carrying on in a relationship, in an affair?
A. Yes, wouldn’t anybody?
Q. And at the time, just taking your mind back to when your husband got that phone call, the very next day, he drove you to work?
Q. And he told you you’re quitting?
Q. And there was no discussion?
Q. And he was very upset?
Q. Okay. And I’m going to suggest to you, ma’am, you were off five months and you had to beg him to let you go back to work? You liked your work, correct?
A. Yes, I did. I enjoyed my job.
Q. And you did try to convince him to let you go back?
Q. And I’m going to suggest to you as well, ma’am, that after these letters started coming, after you told your husband about the relationship, he went in a rage to the company looking for Willy?
A. He didn’t go specifically for Willy, he went to find out what was going on at my place of employment.
Q Okay, well, who would he find there?
A. Anybody that works there, I have
Q. Including Willy?
A. friends of mine.
Q. Okay. And, in fact, I’m going to suggest to you, ma’am, you called Willy to warn him that you had told your husband and he might be coming at some point?
A. That was the day before I had called to say I wasn’t coming back to work and he said you -¬you better come back to work, and I said I’m not, and he said and I will tell, and I said you don’t have to because I will tell, and that’s when I told my husband the truth. And that’s why my husband went there the next day to find out.
Q. Well, I’m going to suggest to you, ma’am, that in fact what you did tell your husband was that there was a relationship but there was no physical intimacy between the two of you.
A. I don’t recall saying that.
Q. You don’t recall? So are you saying now you’re not certain that you told him that there was a sexual relationship?
A. I did tell him, I just don’t know if it was that particular moment that I told him, but I did tell him. That’s why we went to the police.
Q. When would have been the latest moment that you told your husband that you had a sexual relationship with Mr. Zane?
Q. When would have been the latest point in time where you would have told your husband?
A. When we went to the police station, it all came out. He was with me.
Q. Okay, so did he know at the police station?
Q. Before or after you gave your statement?
A. Before, and after.
Q. Willy Zane never came to your house, correct? During the course of your relationship, he never came to your house?
Q. Okay. And other than those — you were talking earlier about these crank calls that you were receiving —
Q. — which you believe may have been Willy?
Q. But other than that, he never, I’m going to suggest to you, called up your house directly and said, hi, Kris, how’s it going, except for a legitimate work purpose?
A. Correct. Or we would talk if no one was home during the relationship, we did have conversations on the phone.
Q. From your home?
Q. But those would not be calls he would initiate, because he has no way of knowing if someone else was home, correct?
Q And you also have call display, correct?
Q. Okay. And during your relationship, you also communicated a lot on the cell phone?
Q. And I’m going to suggest to you, ma’am, that you took the billing from your cell phone and you put it on-line?
Q. — so that your husband couldn’t —
A. That was Willy’s suggestion.
Q. That was Willy’s suggestion. And you also communicated by text messages?
Q. And the two of you came up with little codes, like the letter “C” means “call me”?
Q. So that you could send him a little text message with the letter “C” and he would know that it’s safe to call you at that point in time?
Q. And other that, of course, he wouldn’t call you, generally speaking, because he wouldn’t know that it was safe to call?
A. No, but it — when I tried to end the relationship, on several occasions he did text message me to call him. And I received those during the day when my family was around.
Q. Your family was around.
Q. And where was this; at home?
A. At home, or if I was out and he needed to talk to me, he would — that would be his code to get in touch with him.
Q. And you also left voice mails for each other?
Q. And you did that at work?
Q. On the voice mail system? And of course there was no danger of your husband getting access to that?
Q. And, in fact, really, no one could get access to your voicemail, correct, except for you?
A. Except for Willy.
Q. And you?
Q. Okay. And you also communicated by email with each other?
Q. Okay. And you had at the time a company email address?
Q. Okay. And, now, the company email, you cannot access from outside the company, is that correct? You could never check your email from home?
A. No, no.
Q. Right. So, of course, there was no danger of your husband ever seeing your emails; the company ones, anyways
Q. And that’s the only address that Willy would send you emails to?
Q. Okay. Now, just going back to
December 9th of 2003, that day that your husband drove you to work to pack up your things to leave, you asked Willy to go outside and speak to your husband to convince him that there was nothing going on.
Q. And he, in fact, did that, correct? He tried to convince your husband?
Q. Of course, your husband didn’t believe him?
Q. And then when you came back May 2004, before your husband agreed to let you come back, he wanted to confront Willy, correct?
Q. And speak to Willy again about the rumours of the affair?
Q. And, in fact, he did go and meet Willy, correct?
Q. And Willy did his best to try to deny that there was any affair, correct?
Q. And it was based on that conversation that you were allowed to go back to work?
Q. I mean, your husband agreed that you could go back to work?
Q. And, in fact, you had called Willy a few days before that to let him know that your husband was going to call him?
A. I don’t recall that, but possibly.
Q. And I’m going to suggest to you —
A. Actually, I didn’t even know my husband was going to meet him. I found that out after.
Q. And I’m going to suggest to you, ma’am, that when this relationship started, that you asked Willy to promise you to never reveal the fact that you had a relationship with him?
A. Yes, correct.
Q. Do you remember that?
Q. Even if you were gone from the company, that he was not to reveal it?
Q. And he promised that to you, correct?
Q. Now, ma’am, you said in your testimony in-chief that your relationship started at the end of 2003.
Q. I’m going to suggest to you it started in October of 2002?
Q. I’m going to show you something and ask you if you can identify this for me. I’m just going to show it to Mr. Burke first. Actually, sorry, before I show you this, ma’am, were you in love with Willy Zane?
A. At one time, I thought I was, yes.
Q. And for how long did you think you were in love with him?
A. About a year.
Q. One year? And then after that, you were definitely not in love with him?
A. Correct. It doesn’t mean I didn’t have feelings, I had feelings for him.
Q. I’m showing you a card here. I was wondering if you could identify that; if you could read out what it says on the front?
A. “All my love on our anniversary.”
Q. And then what does it say on the inside, ma’am?
A. …I believe in you, I believe in our love, I believe in tomorrows, I believe in us, happy anniversary. I love you very much. Thanks for lunch
Q. Okay. And there’s a piece of paper in there? And what does that say, ma’am?
A. “Happy anniversary, October 10th, 2003.”
Q. And there’s quite a long verse written underneath it. I’m not going to ask you to read the whole thing out.
Q. This is a card you gave to Willy, correct?
Q. On your first anniversary?
Q. And so if the date there is October 10, 2003, your relationship would have started October 10, 2002, correct?
A. I don’t believe that was the date.
Q. Okay, well, did you give him that card?
Q. Okay. And that note on the inside is signed off with the initials “ILYVM.” What does that stand for, ma’am?
A. “I love you very much.”
Q. Okay. If I could ask that that be marked as the next exhibit, please, Your Honour?
THE COURT: Exhibit 6. May I see that, please? Thank you. Exhibit 6 will be an anniversary card in an envelope, inside of which is a note headed “Happy first anniversary, October 10th, 2003.”
— EXHIBIT NO. 6: Anniversary card
MR. PAIN: May I continue, Your Honour?
THE COURT: Yes, go ahead.
BY MR. PAIN:
Q. And, of course, just referring to that card, you didn’t sign your name to it, right?
Q. And that was out of fear that it might possibly fall into the wrong hands, someone else might see it?
Q. And that was part of the code of conduct that you and Willy agreed to, to keep everything discrete?
Q. No name signing?
Q. Nothing that would present itself as an obvious sign —
Q. — that you two were having a relationship? And so now you’re on leave from December 9th, 2003, to May 1, 2004?
Q. And I just want to confirm this with you: you said you had phone contact with Mr. Zane during that time?
Q. But you had no actual physical contact with him; you didn’t meet him anywhere?
A. Not that I recall, no.
Q. Not that you recall, okay. And these phone calls you made from — there’s a period of time during that leave your daughter was hospitalized; is that correct?
Q. And you would call Mr. Zane from a pay phone at that hospital?
Q. And that again is to avoid detection?
Q. And that’s your only opportunity to call him without anyone seeing, correct?
Q. And I’m going to suggest to you, ma’am, you called him every day that your daughter was in the hospital?
A. I called him when I could.
Q. Now, I know you’ve indicated, ma’am, that you did not see him during that time, but I’m going to suggest to you that, in fact, you met him several times during your leave. You met him at parking lots and the two of you would drive back to his apartment; would you agree with that?
Q. I’m going to suggest that you went to a hotel with him during your leave?
A. I don’t know if it was during that time; I did go once, yes.
Q. You don’t know if it was during that time, or you definitely didn’t go during that time?
A. It could have been during that time. I know I did go once with him; I don’t know the exact time when it was.
Q. In fact, I’m going to suggest to you, ma’am, that during that time at the time that Mr. Zane took you back to his apartment, he proposed to you?. On the 20th of April, 2004.
Q. He did?
Q. So it was during the leave?
Q. Well, yes or no?
Q. Okay. So now you recall that you did meet him during that leave. How many times did you meet him during that leave?
A. A lot of it I blocked out. I don’t know exact dates. Yes, that time I did go to the parking, yes, when he proposed to me. Other than that, I don’t recall.
Q. Well, I’m going to suggest to you, ma’am, do you recall giving a videotape statement at the police station?
Q. Okay, and do you recall discussing this proposal with Officer Rimes (ph.)?
Q. And I’m going to suggest to you, you told her that it was while you were at work that Mr. Zane proposed to you, during the time that you were at —
A. Yes, because I didn’t remember.
Q. And you in fact told her that afterwards, after he proposed to you, you asked him to drive you back to work.
A. Yes, because I thought that’s what it was.
Q. But, of course, if you were on leave, he wouldn’t be driving you back to work because there’s no work for you to go to.
A. Right. That’s what I said, the dates I’m not sure. A lot of it I have blocked out.
Q. Now, that statement you gave back on June 17th of 2005?
Q. Had you blocked it out at that time, is that what your testimony is?
A. I never recalled exact dates. I know I went; I just don’t remember the exact dates.
Q. Well, I’m going to suggest to you that that proposal was a fairly significant event; correct?
A. Correct. But I couldn’t even tell you what date it was, to be honest.
Q. You certainly were aware that it happened during that leave?
A. Not a hundred per cent, I can’t say for sure.
Q. You indicated that you came back; I believe in your testimony in-chief you indicated you came back to work because Mr. Zane threatened to reveal the relationship if you didn’t come back?
Q. And that’s the only reason you came back?
A. I didn’t — I liked my job, that’s part of the reason why I wanted to come back, but I was scared that he would reveal information and so I fought to go back.
Q. Okay. And so you came back May 1 of 2004?
Q. Okay. And so what are your feelings for Mr. Zane at this point? I mean, he’s basically threatening you, right?
Q. So how do you feel about him now?
A. I didn’t care for him as much as I did before. My attitude was different when I came back, when I returned to work.
Q. And how did you conduct yourself with him when you came back?
A. I told him I wanted to be friends and keep it business and he pushed it further.
Q. What way? Can you expand on that, please? What does that mean, “pushed it further”?
A. He wouldn’t take no for an answer. He would come to my office, he would shut the door, he would tell me he wants to be with me.
Q. Okay. And —
A. He would call me on the phone at work all the time. I tried to change my voicemail and he got into the voicemail system and deleted it.
Q. Okay, so would it be fair to say that you tried to minimize your contact with him?
Q. And did you carry on with him in an intimate manner after you came back?
A. There was occasions, yes.
Q. Okay. And these occasions, would they take place within the office or outside the office?
A. Office, in the office.
Q. Okay. And your testimony now is that this occurred because he was threatening to expose the relationship, is that what you’re saying?
Q. Okay. So you would give in to his physical demands?
Q. And beyond that, how would you conduct yourself with him?
Q. Okay. So was there ever any romantic talk, that type of thing?
A. On occasion.
Q. On occasion? Did you tell him you loved him?
Q. Why did you tell him that?
A. Because I was scared. I told him whatever he wanted to hear.
Q. Okay, and so what would he say to you? “Tell me you love me”?
A. Yes, he asked me to tell him.
Q. And then other than that —
A. Every day.
Q. Other than that, you wouldn’t?
A. (non-verbal response)
Q. Now, you said in your testimony in-chief by December of 2004, you knew that the relationship was over.
Q. You certainly didn’t love him at that point, did you?
Q. I’m showing you a document, ma’am, and I’m going to ask you to identify this for me.
A. Okay, it’s an email.
Q. It’s an email. And it’s email from?
A. From myself.
Q. Okay. And that, by the way, is to his Smart Systems email address, is that correct?
Q. And what is the date of the email, ma’am?
A. December 16, ’04.
Q. December 16, 2004. And you would have been on leave during that time, correct?
Q. No, I’m sorry —
A. No, I couldn’t be, no.
Q. You weren’t on leave, okay. And it’s at 4:25 p.m. You’d still be at work?
Q. Okay. And can you read the email out, please?
A. NN … When I’m with you, eternity is a step away. My love continues to grow with each passing day. This treasure of love I cherish within my soul. How much I love you, you’ll never really know. You bring joy to my heart I’ve never felt before. With each touch of your heart, I love you more and more. Whenever we say goodbye, whenever we part, you know I hold you dearly deep inside my heart. For those seven words, I pray you hold true. Forever and always, I will love you …”
Q. That’s an email you sent to Mr. Zane?
Q. Did he force you to send that?
Q. May I ask that be marked as an exhibit, please, Your Honour?
THE COURT: That’s the email, December 16, 2004, will be Exhibit 7.
— EXHIBIT NO. 7: Email to Mr. Zane dated December 16, 2004
BY MR. PAIN:
Q. I’m going to show you another document, ma’am, and I’m providing a copy to my friend. Can you identify what this, Ms. Masey? What is this —
A. It looks like a poem, I don’t know, “A Gift For You.”
Q. A poem, “A Gift For You.” And how is that signed at the bottom, ma’am?
A. “I love you very much.”
Q. Well, that’s not exactly what it says.
A. Well, “ILYVM.”
Q. “ILYVM”, “I love you very much.”
Q. That’s from you to Mr. Zane?
A. I don’t recall
Q. It is possible it’s from you to Mr. Zane?
Q. Do you need a moment to read it over?
A. No, it’s fine.
Q. Okay, I’m going to suggest to ma’am, that that is something you sent Mr. Zane within the last couple of months of you being in the company?
A. Okay. Yes.
Q. Yes, you did?
A. I don’t recall, but, yes, I guess I did.
Q. Okay, Your Honour, I’m not quite sure it’s been identified sufficiently for me to ask that it be marked as a proper exhibit at this point.
MR. BURKE: Your Honour, if it assists, I don’t have any objection, subject to the evidence, to it being marked as an exhibit.
THE COURT: We’ll mark the poem “A Gift For You” as Exhibit 8.
— EXHIBIT NO. 8: Poem entitled, “A Gift For You.”
BY MR. PAIN:
Q. Ma’am, I’m going to suggest to you that your relationship with Mr. Zane was a consensual one that carried on right through until the time you left in June of 2005?
A. No, it ended in February, 2005.
Q. February, 2005, okay.
Q. Your Honour, at this time, I have a CD that I would like to play for the witness, purporting to be voicemails that she had left for Mr. Zane I was wondering if I could do that at this time. It will take about half an hour; there’s a whole bunch of them.
THE COURT: Mr. Burke?
MR. BURKE: Your Honour, it might be useful if my friend and I took five minutes. We might be able to expedite things.
THE COURT: That might be a good idea. All right, why don’t we do this: I don’t want you to feel that you’re under the gun, why don’t you take ten minutes?
MR. BYRNE: Thank you, Your Honour.
THE COURT: If you could step down, ma’am, we’ll resume in about ten minutes.
— A BRIEF RECESS
MR. BYRNE: Your Honour, if I may address the court. You will note that the witness isn’t here, I’ve asked her to wait up at the Victim Witness Office. I’ve spoken to my friend and on the basis of certain revelations that have come up in cross-examination, I think I have a responsibility as a prosecutor to re¬assess the reasonable prospect of a conviction here.
If I could just put some comments on the record; obviously the Court no doubt divines that an important part of the Crown’s case here were these letters. It seems that it has come up in cross-examination that there is an equally plausible source of these letters, a source that is equally consistent with somebody else other than Mr. Zane. On top of that is the evidence of the complainant that right about the time that these phone calls started going to her husband, she asked Mr. Zane if he would specifically tell her husband nothing was going on, and he did that. So I think that would realistically knock out any possibility of those letters being probative of anything.
If you take the letters out of the picture, the Crown would have to concede that in terms of evidence remaining to prove elements of criminal harassment, the Crown’s case is virtually non-existent, even if the Court were to look at Mr. Zane, if, in fact, he said to the victim, you know, if you leave me, I may harm myself, I think I’d have difficulty convincing the Court that he did this with the knowledge that this would have the effect of causing the victim fear or that there was even an element of recklessness there.
So for these reasons, sir, I do not feel that it is proper that Mr. Zane face jeopardy on this charge any longer, and I would like the Court to dismiss the charge.
THE COURT: Well, I thank you for your comments, Mr. Burke. I am, of course, mindful that there must be conduct which viewed objectively would satisfy me that you have proved beyond a reasonable doubt that the complainant reasonably feared for her safety. And this rather unfortunate development of events arising out of this clandestine relationship suggests that that relationship was interrupted by a series of rumours among co-workers, escalating with telephone calls, perhaps letters and what appears to have been a fear on the part of the complainant that the truth would be told.
And it may well be that while there was discomfort and while there was turmoil, I’m not necessarily certain that given the evidence that she has that she discussed these letters and in turn consulted with the accused in how to draft further letters reflects what it is that the Criminal Code directs me to apply my mind to, and I think your assessment of the situation is appropriate. And in the circumstance, the charge is dismissed.
MR. PAIN: Thank you, Your Honour.
MR. BURKE: On count 2, sir, that was the sexual assault, Mr. Zane was never arraigned on that; I’d ask that that be marked withdrawn.
THE COURT: The charge of sexual assault is marked withdrawn at the request of the Crown.