Ontario Court of Justice

Date: October 25, 2016

Between:

Her Majesty the Queen

— and —

Jordan Seminario

Judgment

Before: Justice Joseph F. Kenkel

Heard: June 22, 23, October 24, 25, 2016

Delivered: October 25, 2016

Counsel:

• Mr. Rob Scott — counsel for the Crown
• Ms. Lauren Wilhelm — counsel for the defendant

Decision

KENKEL J.:

[1] Mr. Seminario is charged with Failing to Comply with Probation x 2, Break and Entry to a Dwelling, Threatening Death, Assault, Mischief to a cellphone and Assault Causing Bodily Harm. The allegations stem from his relationship with his ex-girlfriend over a four month period of time.

[2] The defence concedes the Crown has proved the two breaches alleged beyond a reasonable doubt.

[3] The Crown's case with respect to the remaining charges rests upon the testimony of the complainant. The allegations involve two incidents – one in Hamilton in November of 2014 and a later incident in February of 2015. Credibility is the central issue at trial.

[4] The complainant was responsive to questions both in examination-in-chief and cross-examination. She made admissions of error where appropriate and agreed with a number of defence assertions in cross-examination that contradicted her prior testimony. I did not find anything in her demeanor or responsiveness as a witness that reasonably detracts from her testimony.

[5] The defence notes that the court had to issue two material witness warrants to compel her attendance. She was also party to the admitted breaches knowing the accused was bound by probation not to have contact with her. The defence submits that both circumstances show she has no respect for court orders and detract from the credibility of her account.

[6] It's plain that the complainant is a reluctant witness. She was reluctant to involve the police during the months in question and the 68 page text message record in Exhibit 5 shows it was only the accused's ongoing unwanted contact that finally drove her to make the complaint. As she explained in her evidence, the complainant was also reluctant to revisit a relationship that she feels ruined her life, and to have to see her ex-boyfriend and testify in court. The complainant's explanation for her non-attendance was subjectively reasonable and does not detract from the credibility of her evidence, nor does her participation in the text messages.

[7] I agree with the Crown that the complainant's evidence with respect to the November 2014 incident finds some support in the undated photograph showing significant injury to her face and by the fact that she mentioned his causing injury to her face in text messages in February – a circumstance that is inconsistent with the allegation of fabrication. There's ample evidence of damage to her door in February and it's plain her cellphone was broken during this period.

[8] Despite some support in the external evidence, on the evidence as a whole I find I'm unable to accept the complainant's testimony with respect to the February incident involving Break and Entry into her apartment, Threatening Death, Assault, and Mischief to her cell phone for the following reasons:

• The complainant frequently expressed significant difficulties with her memory with respect to the whole of the four months at issue. I find that detracts from the reliability of her evidence.

• The complainant testified that she had little contact with the accused during the period immediately prior to the break-in, but when shown photographs in cross-examination admitted that her memory had been inaccurate and there was more contact that she'd first remembered.

• While the text messages in Exhibit 5 provided some circumstantial support for her evidence and in part may go to rebut the allegation of fabrication, that record was incomplete. The complainant admitted she deleted some messages. Among the further messages identified in Exhibit 8 are texts she admits were sent by her that suggest that the Break-In occurred while she was away in Las Vegas. The texts also state she didn't know who broke her door but she demanded that the accused give her money to fix it. The complainant could not explain her contradictory messages in Exhibit 8. I find her contemporaneous text account completely undermines the reliability of her present recollection in relation to the February 2015 incident.

• I also find that the circumstances of the Exhibit 8 texts must also detract from the credibility and reliability of the remainder of her evidence.

• The complaint lied to the hospital about the injuries to her face. She told the doctors she'd been punched in the face while working at a club. While that's consistent with her general reluctance to involve police in her domestic matters, she provided different versions of that event to the 911 operator, to investigating police and in her testimony at trial. The inconsistencies on important points were not reasonably explained and they detract from the credibility of her evidence.

• The request for money from the accused for damage the Exhibit 8 texts say he did not cause is significant where the complainant otherwise admits attempting to extort the accused's father to pay for losses resulting from the injuries to her face in November of 2014. She threatened to make a complaint to the police if he did not pay. She says he threatened to complain about her to Children's Aid if she complained to the police. Her request for money is not inconsistent with her evidence that the accused caused that injury, but as she was prepared to demand money in February of 2015 for things she said he didn't do, her demands for money in relation to the prior incident must be viewed with caution.

• It's plain there were many events during this volatile relationship and the complainant repeatedly said she might be conflating or mixing incidents and details. That circumstance detracts from the reliability of her evidence as to the particular incidents before the court.

[9] I wish to make it plain that I do not disbelieve the witness with respect to her general account of their relationship. It's likely in my view that she suffered the injury to her face at the hands of the accused and not while working in a night club. However, in the context of all of the evidence I find that the Crown has failed to prove that allegation and the remaining counts beyond a reasonable doubt.

[10] Mr. Seminario is found guilty on counts 1 and 2. The remaining counts must be dismissed.

Released October 25, 2016

Justice Joseph F. Kenkel