Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 07 25 COURT FILE No.: Scarborough 20-35004725

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

COLLIN TEMOIN

Before Justice R. Wright

Heard on May 9 and 10, 2022 Reasons for Judgment released on July 25, 2022

Counsel: A. McPhedran...................................................................................... counsel for the Crown A. Hussain......................................................... counsel for the defendant Collin Temoin

R. WRIGHT J.:

[1] Collin Temoin stands charged with a series of offences in relation to his former girlfriend that are alleged to have taken place between June and December of 2020, as (and, at least on the complainant's evidence, because of which) their relationship of more than four years began to break down. The allegations begin with an assault from June 21, 2020 (Father's Day) and end in allegations of criminal harassment by besetting or watching the complainant's dwelling from Dec. 18 to 25, 2020.

[2] While this was a relatively short trial, the complainant, Mr. Temoin, and three other civilian witnesses testified over the course of two days. Their accounts as to what happened on the different days where offences were alleged to have occurred differ significantly.

[3] The complainant, Chelsey Rogers, alleged an escalating pattern of aggressive physical and emotional violence by Mr. Temoin. Mr. Temoin testified to a pattern of manipulative and erratic behaviour by Ms. Rogers and denied any assaultive or harassing behaviour. Michael Lopes, a friend of Ms. Rogers and the former roommate of Mr. Temoin, was called by the Crown to testify to his observations of a portion of a physical altercation between Ms. Rogers and Mr. Temoin, although his account differed considerably from either of theirs. His former girlfriend, Jessica Zanre, was called by the defence to provide her observations of that same event, which are inconsistent with portions of the evidence of the other three. Finally, another close friend of Mr. Temoin's testified on behalf of the defence to provide a partial alibi to the charge of criminal harassment.

[4] With such differing accounts, the Crown’s case largely stands or falls on my findings of credibility and reliability on the whole of the evidence tendered at this trial. The burden of proof rests upon the Crown to satisfy me beyond a reasonable doubt that each of the essential elements of the offences alleged has been proven. Because Mr. Temoin testified, this is a case to which R. v. D.W., [1991] 1 S.C.R. 742 also applies. On the issue of credibility and its interrelationship with fact-finding, I have instructed myself in accordance with R. v. D.W., [1991] 1 S.C.R. 742, R. v. B.D., 2011 ONCA 51, and R. v. Kirlew, 2017 ONCA 171, R. v. Charlton, 2019 ONCA 400, at para. 45, and R. v. Hoffman, 2021 ONCA 781, at para. 40. If I accept the evidence upon which the defence relies, then I must acquit. If I do not accept that evidence but am left in a state of reasonable doubt by it, I must also acquit. Finally, I must acquit Mr. Temoin of the offences charged unless satisfied, beyond a reasonable doubt, on the evidence I do accept, of Mr. Temoin's guilt. As a matter of logic, it follows that if, after a consideration of all the evidence, I cannot decide whom to believe, I must find Mr. Temoin not guilty.

[5] The allegations can be broken into four events:

(1) First, on Father's Day 2020, when it is alleged that an argument about Ms. Rogers visiting her father turned physical and in the course of Mr. Temoin grabbing her to prevent her from leaving his basement apartment, she fell down half a flight of stairs (assault);

(2) Second, between October 20 and November 28, 2020, in Niagara Falls, where it is alleged that an argument about a message Ms. Rogers had received from another male turned physical, resulting in her being pushed to the ground and Mr. Temoin throwing a shoe bench past her head while uttering threatening words (assault with a weapon);

(3) Third, on November 29, 2020, where it is alleged that Mr. Temoin woke Ms. Rogers to start an argument over some messages on Ms. Rogers' phone, accused her of infidelity, pushed her into the coffee table, pushed her to the floor when she tried to leave down the hallway, and choked her while on top of her and bit her neck, and then threw pebbles at her vehicle as she drove away (assault x 2, and assault with a weapon); and

(4) Fourth, where it is alleged that, after they had broken up and Ms. Rogers had blocked Mr. Temoin and told him not to contact her again, he drove by and parked in front of her house multiple times in the days leading up to Christmas Day, and sent her an email containing a number of very hurtful statements about her mother's death, which she believed was sent while he was parked outside watching her residence from inside his vehicle (criminal harassment).

Summary of the Relevant Evidence

[6] Mr. Temoin and Ms. Rogers met when Ms. Rogers was in high school. They dated for approximately 4.5 years, with the exception of some four months after the death of Ms. Rogers’ mother, during which they were separated. They got back together in October or November of 2020 and were separated again within a few weeks.

[7] Mr. Temoin has a daughter from a previous relationship who would sometimes reside with him in his residence and whom Ms. Rogers also spent time with.

[8] Between the end of June 2020 (when the first separation occurred) and November 2020, Mr. Temoin moved from Pickering to a new residence at 8 Blake Court in Ajax, where he had a roommate named Mike Lopes. Mr. Lopes had a girlfriend at the time named Jessica Zanre, also known as Jessica Cook.

The Complainant, Chelsea Rogers

[9] Ms. Rogers testified that in December of 2020, she called police to stop communication coming from Mr. Temoin. The only way she thought this could be accomplished was by calling police. This communication had followed the end of their relationship and culminated in an email sent by Mr. Temoin on Christmas morning that contained very negative statements about the death of her mother.

[10] Ms. Rogers testified to a number of physical assaults, the first having occurred on Father’s Day 2020 at Mr. Temoin’s then residence in Pickering. Ms. Rogers had gone fishing with Mr. Temoin and his daughter. When they returned to Mr. Temoin’s basement apartment there was an argument about Ms. Rogers wanting to visit her father. She testified that she had decided to leave; she was in the middle of the stairs up from the basement and Mr. Temoin grabbed her to prevent her from leaving, which caused her to fall down the stairs.

[11] She described the stairs as basement stairs with an overhanging middle area where one had to duck. There were approximately 15 stairs; she fell down the last five of them. She described Mr. Temoin pulling her by the arm to stop her from leaving. She fell, hit her ribs off the railing of the stairs, fell down the stairs, and hit the wall. She was scratched by Mr. Temoin’s fingernail in the fall, which left a long scratch mark on her ribs/torso. She also suffered bruising to her leg from the fall. After this event she took photographs of those injuries. These were entered as exhibits in the trial and show her left leg with bruising, and a long scratch mark on her torso. She testified these photos were taken within one or two days of the incident while she was in her car. She did not require medical attention for these injuries.

[12] She testified that she did not believe Mr. Temoin intended to throw her down the stairs; her perception was that he was trying to keep her in the house when he grabbed for her. When he pulled her and she tried to pull back he let go and she lost her balance and fell.

[13] Ms. Rogers also detailed a second physical assault, this an incident in Niagara. Ms. Rogers testified that they reconciled in late October or November and had gone on a romantic getaway to a rented hotel room in Niagara for the night. They had several arguments during the day; a friend named Brandon messaged her and asked her how she was doing, which made Mr. Temoin jealous. She testified that Mr. Temoin made her call Brandon. He then made her ask Brandon a lot of questions including whether they had ever had a sexual relationship. Ms. Rogers decided to leave and was packing. The argument continued. Mr. Temoin pushed her to the ground, she believed by pushing her in the chest causing her to fall onto her back. There was a bench in the room and he picked it up, said words to the effect of “I’m going to kill you” or “you’re lucky I don't kill you”, and threw the bench beside her. She described the bench as a fairly light, cheap bench, with wooden legs, about the same size as an ottoman that might hold shoes by the front door. She testified that she did not end up leaving and she believed things calmed down, although they ended up leaving later that night ahead of schedule. She did not suffer any injuries.

[14] The final physical incident that Ms. Rogers described occurred at the Blake Court residence a couple of weeks later. She was over watching the UFC fight with Mr. Temoin, his roommate Mike Lopes, and Mr. Lopes' girlfriend. Ms. Rogers testified that she and Mr. Temoin had fallen asleep in the living room on the couch. She woke to Mr. Temoin holding her phone and “freaking out” about messages he had read on her phone. She believed she got up to collect her things and Mr. Temoin then pushed her and she fell into the coffee table face first; when asked what part of her was pushed she said she guessed it would have been her back. The food and snacks they had left on the table were knocked off.

[15] She got up and headed toward the front door, which was down a hallway where the stairs leading up to the bedrooms were. She was thrown to the ground again and Mr. Temoin sat on top of her, with his knees on each side and his weight over her hips, and started choking her with both of his hands. She was screaming. Mr. Lopes appeared at the top of the stairs. She said she couldn't breathe several times and Mr. Temoin started covering her nose. He had both hands around her neck, and she believed he continued to choke her with his left hand and covered her nose with his right hand. Mr. Lopes was coming down the stairs and Mr. Temoin looked up at him and Mr. Lopes said something like “what is going on, stop.” Mr. Temoin said, "calm down, calm down" and then bit her on her neck. Mr. Lopes came down the stairs, and Ms. Rogers was able to get up and exited through the door. While getting ready to drive away in her vehicle, Mr. Temoin came outside, picked up stones from the garden, and threw them at her windshield. She described this as "not full-force" throwing, just something he did to taunt her. She drove away and that is the last time she saw Mr. Temoin in person.

[16] She suffered injuries from this event: her ribs were very sore, she had bruising on her side-stomach area, and she had a few cuts and scrapes from hitting the table. She didn't take any photographs. She said she had not planned on having any further contact with Mr. Temoin so hadn’t seen the point in documenting her injuries.

[17] After the Blake Court event Ms. Rogers testified she intended to end the relationship. They exchanged some texts back and forth but she did not remember much of their content. Between the date of the Blake Court incident and Christmas there was some contact over social media. She did not believe they had spoken again. At one point she sent Mr. Temoin a message on Instagram because his friends were sending her videos and she asked him to make them stop contacting her.

[18] She testified that just before Christmas she saw a black pickup truck around her house. She believed it was Mr. Temoin’s truck because it had a sticker on the back of the truck, on the window, and she had known what his truck looked like. She did not remember what the sticker looked like at the time of testimony. When asked what made her think it was his truck she indicated she had just spent the past month with him and he would park his truck in front of her house so she knew what it looked like. She testified that she saw the truck more than once; it was a frequent thing that would drive by. She believed she saw it three or four times. She believed it was Mr. Temoin and she began to feel sick, nervous, anxious and scared. She wondered if he was watching her and then noticed weird things around the house like her outdoor Christmas lights being unplugged.

[19] On Christmas Eve, she noticed the truck parked up the street from her house. She could see it from the front window and believed the truck could see her. She could see someone was in the truck, in shadow, but not clearly view who it was. She feared for her safety and her privacy.

[20] On Christmas morning at approximately 7:36 AM she received an email from Mr. Temoin. The email was made Exhibit 2 in the trial. The email is about her mother who had passed away from an overdose and comparing her to her mother. It includes very negative statements about her mother and her mother's death. She believed the email was sent to scare her and hurt her. In her mind, it was the culmination of the days of the truck being around her house. This is what drove her to contact police.

[21] In cross-examination she was questioned about receiving that email. It was suggested to her that she did not like the email and she called police to get back at Mr. Temoin for having sent such a hurtful message. She denied this and stated she called police because Mr. Temoin was sitting out in front of her house.

[22] Regarding the Father's Day incident, it was suggested to her that Mr. Temoin’s actions did not cause her to fall, but that he tried to catch her when she fell. She disagreed with this suggestion, stating she didn't know what his intent was but believed he was trying to stop her from leaving and that is what caused her to fall down the stairs. She agreed that the scratch from his fingernail was from him trying to catch her after she began to fall.

[23] With respect to the Niagara incident, she was confronted with an inconsistent statement from her police interview regarding the words used by Mr. Temoin. She acknowledged that she had the words wrong as it had been almost two years. She adopted the words from her police statement which were “get the fuck outta here before I kill you” as opposed to “you are lucky I don't kill you.” She testified that the “kill you” part is what she remembered. She was also cross-examined that she had told police that Mr. Temoin had choked her on the floor during this incident, which she had not described in her testimony in-chief. She explained that she forgot this in her in-chief due to it being "a really traumatizing year for her.” She further added that when she was talking to the crown the focus had been the choking on Blake Court. She said now that it had been brought to her attention she remembered that choking had happened in Niagara as well. When it was then suggested to her that this would be the first time that he had choked her (in Niagara Falls) she said “the first time on record.” When asked to explain what that meant, she indicated it had been "a long four years" (the suggestion being of prior, unreported choking) and stated there was a prior police report from a time that she had been hospitalized. She went on to say that there was choking throughout their relationship, suggest that perhaps Mr. Temoin had mental health issues or bipolar disorder, and said that there was a lot of abuse in the four years of their relationship. When she was challenged that the police in her statement had asked her if there was anything else to add and she had not relayed any of this prior misconduct, she indicated that there was no point in bringing up things that had happened years prior.

[24] It was further suggested to her that there was drinking involved in the Niagara incident. She denied any drinking at all. She'd indicated that they got there late and so all the bars were closed. She maintained that answer when it was suggested to her that bars were not necessary for drinking. It was also suggested to her that both she and Mr. Temoin used cocaine in their Niagara hotel room, which she disagreed with, stating that she didn’t do drugs because of their involvement in her mother’s death.

[25] With respect to the Blake Court allegations, it was suggested to her that Mr. Lopes was in a position to see Mr. Temoin on top of her choking her. She agreed. She did not believe that Mr. Lopes' girlfriend had been able to see anything, and, as far as she knew, she had stayed in their room.

[26] With respect to the allegations that Mr. Temoin was parked on her street it was suggested to her she did not take any pictures of his vehicle and she acknowledged that. When it was suggested that she did not see or recognize his plate number, she testified that it wasn't even his plate, it was someone else’s. When she was then challenged that she wouldn't know this plate to identify it she agreed (but then in re-examination insisted that she recognized this borrowed plate).

[27] Ms. Rogers was also confronted with some text message conversations involving a man named Reuben. It was suggested that she had asked Reuben to reach out to Mr. Temoin on her behalf (Reuben appears to have sent threatening messages to Mr. Temoin in the early half of 2021). In the context of that suggestion, it was put to her that she had entered into a relationship with Reuben after she and Mr. Temoin broke up (which was why he would reach out on her behalf). She denied being in a relationship with Reuben. She was confronted with several images that appeared to show her with Reuben on social media and she again denied being in a relationship with him. When she was further challenged that others saw social media posts describing him as her boyfriend she acknowledged that they had "a friendship."

The Friend/Roommate, Mike Lopes

[28] Mr. Lopes testified that he had met Mr. Temoin through a neighbor and the two began working together. Mr. Temoin got him a job in construction and eventually they moved in together to a rented house located at 8 Blake Court, Ajax. He knew Mr. Temoin for approximately five months before moving out of the rented house.

[29] Mr. Lopes testified to the events of November 29, 2022. He and his girlfriend at the time, Jessica, were sleeping in his room when he was awoken by screaming. He believed this was around 3 AM, or between 2 AM and 3 AM. He heard Mr. Temoin and Ms. Rogers shouting at each other.

[30] When he first came to the top of the stairs he believed Mr. Temoin was throwing things. He observed Mr. Temoin grab Ms. Rogers by the arm and then they “scuffled” and he pinned her on the ground. He was restraining her, holding her down, and telling her she wasn't leaving. Mr. Lopes came down the stairs telling Mr. Temoin to let her go. Mr. Temoin eventually got up and Ms. Rogers stormed out.

[31] He described the scuffle as Ms. Rogers trying to leave with Mr. Temoin continuing to grab her. Ms. Rogers was turning around and pushing Mr. Temoin away. Mr. Temoin grabbed her and they fell to the ground and he would not let her go. Mr. Lopes was unable to say exactly how the two fell to the ground but described the tile floors in the house as slippery. When on the ground, Ms. Rogers was on her back with Mr. Temoin over top of her. He had her by the wrists and was holding her down. She could not move, which is why Mr. Lopes began telling him to get off of her. Mr. Temoin's whole body was over top of her hips, with his knees on the ground straddling her.

[32] When Mr. Lopes came down the stairs, Mr. Temoin was crying. He got off of Ms. Rogers who stormed out of the house. Mr. Temoin went after her. When they left the house, Mr. Lopes went back up to his bedroom and told Jessica what had happened. She had been sleeping.

[33] In cross-examination, Mr. Lopes acknowledged having seen Mr. Temoin and Ms. Rogers use drugs together before, in particular cocaine. He denied having any animus against Mr. Temoin on the basis of an unpaid debt. He acknowledged that Ms. Rogers had contacted him to ask him to be a witness but denied discussing any details of what had happened with her.

[34] He acknowledged his phone number in an angry text that had been received by Mr. Temoin but did not remember having sent the text. He acknowledged he might have sent it, and that it was in him to send a message out of anger.

[35] With respect to the night of the UFC fight, he indicated he didn't see Mr. Temoin throw things; he thought that had happened due to the sounds of glass breaking, and the fact that the television remote was on the floor after.

[36] He was shown photographs from social media of Reuben and Ms. Rogers and identified Reuben as Ms. Rogers' boyfriend after Mr. Temoin. In re-examination, he said that Ms. Rogers eventually updated her status on social media to indicate she was in a relationship with Reuben.

The Defence Evidence, Colin Temoin

[37] Colin Temoin testified in his defence. With respect to the Father's Day 2020 incident, he testified that he and Ms. Rogers were having an argument. Ms. Rogers wanted to go and see her father; she took what he said, “the wrong way,” grabbed all her things, and was leaving. He said, “if you want to go, take your stuff and go.” He was going downstairs on the opposite side of her trying to go to the basement door to his apartment to lock it. The stairs were narrow and she wouldn't let him by. He put his hand on her back, and she flung herself backward, like a rag doll. He testified she had done that sort of thing, hurt herself, multiple times. He denied having thrown her down the stairs. His evidence was that he was trying to squeeze by the way you would in a crowd of people. He said he was not moving aggressively. When asked “how was her balance” he responded that she threw herself back like a diving board. He acknowledged that she hit the ground hard.

[38] With respect to the Niagara allegations, he stated that he took her as a romantic getaway. They were drinking and doing cocaine all night. She received a message from another guy, which upset him and lead to the argument. During the argument, he tripped over the bench and was frustrated at the bench so he flipped it over. His evidence was that it was nowhere near her. After that, he said they simmered down trying to figure out where to get food and then had a further argument about that. He testified that it was hard to remember the full night due to their level of intoxication. He believed they did not drive home until after they had slept. His evidence was that they had made up before they left and things were nice and sweet.

[39] With regard to the Blake Court incident, he testified that it was shortly after their trip to Niagara. They were on the couch after the UFC game; Ms. Rogers fell asleep, and Mr. Temoin looked at her messages while she was sleeping. She had texted another guy and asked for drugs. He woke her up and told her to get out of the house. She flung the coffee table and threw a bowl of stew at his head. His daughter was there, sleeping upstairs, and he was trying to make his way to her. Ms. Rogers was pushing and shoving him in the hallway, and she bit him. Mr. Temoin testified that Jessica was with Mr. Lopes at the top of the stairs watching this. He said words like "she is a freaking psycho." Ms. Rogers went outside and sat in her car for 10-15 minutes. He eventually went outside and banged on her window and told her to get off his property, shortly after which she left. He was in tears, went to his daughter's room, and laid in bed with her.

[40] In response to the criminal harassment allegation, he denied being outside of her house. On Christmas Eve, he was at a friend's house in Oshawa and Ms. Rogers sent a message with pictures of her in the Dominican Republic. She sent a video of a buddy of his and said, "can you tell your friends not to bother me anymore." He testified that he believed she did this to irritate him. He snapped, woke up on Christmas Day to that message, and knew the only way he could get back at her was to say something about her mom. He acknowledged having sent the email in order to "hurt her with words and say the harshest thing he could just to get back to her." On Christmas Eve, he indicated he was at the party in Oshawa until approximately 3 AM and then took an Uber to where he was staying with Jessica Annette at Woodbine and Danforth. On Christmas Day he was with Jessica Annette all day, and could therefore not have been outside Ms. Rogers' house.

[41] In cross-examination, he agreed that most of his arguments with Ms. Rogers were about fidelity, cheating, and trust. He described the relationship as toxic. He agreed that it had become something of a pattern. When it was suggested that some of these arguments got physical, he stated that there were times "but I would literally put my hands up and try to avoid it." It was his position that Ms. Rogers would egg him on and try to make things physical. According to Mr. Temoin, the relationship ended after November 29.

[42] In regard to the Father's Day incident, he agreed they were arguing on the stairs. He was telling her to leave and Ms. Rogers was blocking him from going to his apartment door. He acknowledged that he had placed his hand on her trying to squeeze through but maintained that she flung herself back. He maintained that she had hurt herself on numerous occasions.

[43] He was cross-examined about the trip to Niagara, which he indicated occurred a couple of weeks after they got back together (which, on his evidence, was October 18). He agreed the argument was over a guy who had messaged her while they were there. It was suggested to him that he was jealous and he indicated that he was "frustrated." It was suggested that when he threw the bench it went right by Ms. Rogers; he denied this, indicating that, while he couldn't remember exactly where she was standing, he believed it was about four or five feet away from where the bench was flipped. He denied threatening her in any way. He explained that she had previously had him charged due to threatening and that he had learned not to say threats around her as a result.

[44] With respect to the argument at Blake Court, he agreed he was upset, frustrated and annoyed, and had woken Ms. Rogers up to tell her to leave. He denied that he was yelling, saying he was "stern." His evidence was that Ms. Rogers threw the stew bowl, which smashed on the wall, and then flipped the coffee table. This took approximately 30 seconds. She then was trying to gather her stuff for another 30 seconds. Mr. Temoin was making his way to the stairs to go upstairs, and Ms. Rogers tried to grab at him as he passed, tried to punch at him, and tried to bite him. It was suggested to him that he pinned Ms. Rogers down; he denied this. It was suggested to him that he choked her; he also denied this, saying he "would never be aggressive unless it was in the bedroom and she asked me to." He denied throwing rocks at her truck.

[45] With respect to the allegations that he had been outside of Ms. Rogers’ home leading up to Christmas Day, Mr. Temoin denied knowing exactly where she lived. He testified that he knew the general area/street because Ms. Rogers had made reference to it in passing. It was suggested that he had been to the house because he had been involved in looking for a place jointly with Ms. Rogers before the break-up; he responded that it was one of 10 or 12 houses that they had seen together, and he wasn't sure exactly which one it was.

The Partial Alibi Witness, Jessica Delaney (Annette)

[46] Jessica Delaney testified that at Christmas 2020, Mr. Temoin was at her home with her and her son from Christmas Eve going into Christmas Day.

[47] In cross-examination, it was suggested that he wasn't with her the entire day on Christmas Eve; she agreed that he was not there until after he had finished work. She was inconsistent as to what time he had arrived, and it appeared that she did not recall whether it was post-work or much later, but it was dark out. She recalled he had taken an Uber to get to her house. On Christmas Day they drove to drop off her son, and then went back to Mr. Temoin's residence, but she was with him all day.

The Friend, Jessica Zanre (Cook)

[48] Jessica Zanre testified that in November of 2020 she was dating Mike Lopes. She knew Mr. Temoin from high school approximately 17 years prior. With respect to the Blake Court allegations, she testified that she was awoken by a lot of yelling and arguing. It freaked her out, so she opened the door to peek out. She saw Mr. Temoin running up the stairs toward his daughter's bedroom with Ms. Rogers chasing him. He was telling her to leave and she wasn't listening. Mr. Lopes went downstairs and she believed he calmed down Ms. Rogers and got her to leave.

[49] In cross-examination, she said she thought she had gone to bed around midnight. The commotion that woke her was very loud. She acknowledged that she only poked her head out of the door, and Mr. Temoin ran past toward his daughter's room. Mr. Temoin was yelling that Ms. Rogers should leave and Ms. Rogers was saying "no." Mr. Lopes went out of the bedroom and was saying "stop." She agreed that she was never standing at the top of the stairs and that she did not see what had happened downstairs. She denied hearing the sound of any dishes breaking or anything being thrown.

Analysis and Findings of Fact

[50] In assessing each witnesses’ testimony, I must consider the credibility and reliability of the account provided. Credibility relates to the witness’s veracity. Reliability relates to the account’s accuracy and whether the witness is mistaken in their narrative. In assessing each witness’s testimonial account, I have considered the following factors:

(1) whether the account is inherently logical, having regard to common sense and human experience, using, as reference points, what the evidence reveals about the witness’s actions, words, and professed state of mind before, during and after the events that ground the allegations before the court;

(2) whether the account is internally consistent and coherent;

(3) whether the account is consistent with reliable evidence that exists exclusive of any witness’s account, e.g., the exhibits entered;

(4) the significance of any inconsistency in the witness’s account, e.g., is it in relation to a key or peripheral point, and to what extent does the evidence otherwise reveal a plausible explanation for it that serves to rehabilitate the account;

(5) whether the witness has an interest in the outcome of the case;

(6) whether the witness has a youth court or criminal record, the entries of which are probative of dishonesty;

(7) whether the witness, exclusive of the accused person before the court, has engaged in discreditable conduct that reflects poorly on his or her credibility or reliability;

(8) whether the reliability of the account is undermined by:

(a) the circumstances, including those specific to the observer and those specific to what is being observed, under which the observations that ground the account were made;

(b) a bona fide diminished recollection of the events over time;

(c) intentional and/or unintentional tainting by other sources of information; and

(d) any apparent mental, including cognitive and developmental, limitations that are probative of the account’s reliability or unreliability;

(9) the witness’s apparent level of sophistication and life experience, particularly as it relates to pre-testimonial contact, in any capacity, with the criminal justice system; and, to a lesser degree,

(10) the witness’s after-the-fact and/or testimonial demeanour.

(a) In assessing the former, I have been mindful of:

(i) the reliability and/or credibility of the individual who testified to the witness’s demeanour;

(ii) the lapse in time between the alleged offence and the observed demeanour;

(iii) any explanation unrelated to the commission of the alleged offence for the observed demeanour;

(iv) the witness’s capacity and/or any motive to feign their demeanour.

(b) In assessing the latter, I have been mindful that testimonial demeanour is of particularly limited value because it can be affected by factors entirely unrelated to the witness’s truthfulness and/or reliability, or lack thereof.

[51] As I assess a given witness’s testimonial account, I am mindful that I may accept some, none, or all of that account.

[52] In this case, I have conflicting accounts on material issues. The Crown has marshaled evidence to support one narrative of the impugned incidents; the defence has marshaled evidence to support a materially different narrative. I am mindful that well-established principles of common law preclude me from merely choosing between those conflicting accounts as I work towards my finding of facts. I am obliged to consider all of the evidence before arriving at my verdicts. I must avoid the stark alternatives approach of believing the Crown evidence or the defence evidence, which excludes the legitimate possibility of being unable to resolve the conflicting evidence and, accordingly being left in a state of reasonable doubt on whether the Crown has proven the case. In a case with such conflicting accounts, it is impossible not to compare and contrast the evidence of the other witnesses with the evidence of Mr. Temoin. Engaging in this kind of contrast and comparison does not in reflect a misplacement of the burden, rather, it is a consideration of an accused’s evidence in light of the evidence as a whole, including a complainant’s evidence (see R. v. A.J.K., 2022 ONCA 487 and R. v. N.K., 2021 ONCA 13, at para. 10). The burden remains on the Crown to prove all of the essential elements beyond a reasonable doubt.

[53] I was not terribly impressed by the evidence of Ms. Rogers. She took every opportunity to cast aspersions on Mr. Temoin, including repeatedly attempting to make reference to past disreputable conduct (not elicited by counsel). It seemed to me she was attempting to fit herself into a role; she minimized her own faults and refused to acknowledge any suggestions that might reflect poorly on her (even though other witnesses testified to such things as her drug use). She was unnecessarily combative in cross-examination and would not even acknowledge that she had begun another relationship after she and Mr. Temoin had broken up, a very fair assertion that was being put to her to try to explain messages Mr. Temoin had received from Reuben. In relation to the evidence about how she identified Mr. Temoin's truck, she added an allegation in cross-examination that he was not using the proper plates, and then maintained that she still recognized those plates. She similarly answered other difficult questions in cross by making allegations of further mistreatment from Mr. Temoin. There were a lot of the hallmarks of credibility and reliability missing from her evidence.

[54] I also had some concerns with the evidence of Mr. Temoin. It is very clear that he bears negative feelings toward Ms. Rogers. He took every opportunity in his evidence to lay blame upon her for the dissolution of their relationship, and for almost every negative aspect of it. He also acknowledged sending her the email about her mother's death in order to specifically cause her as much emotional pain as he could. This is not behaviour that reflects well upon his credibility. However, I do acknowledge that he did not attempt to minimize this when giving his evidence. He was candid about this wrongdoing. And his explanation as to how he had reached his "breaking point" explains his reasons for sending the email, even though it could never amount to a justification for the cruelty of sending such a message.

[55] Given these concerns about credibility, I am of the view that the evidence of Ms. Rogers should be treated with some caution. I have therefore considered whether there is corroborative evidence or evidence that would tend to confirm her account when deciding what evidence I do accept.

The Father's Day Allegation

[56] Mr. Temoin's evidence about the Father's Day incident has a number of issues. His evidence that Ms. Rogers threw herself down the stairs when he touched her back is not inherently logical, having regard to common sense and human experience. The suggestion that she would purposefully hurt herself in this manner, throwing herself down five stairs, into a wall, defies common sense. It also relies on an idea that she would have some reason to allege he had hurt her; Mr. Temoin's position was she did this so she could have pictures of injuries to use against him. But in the context of the evidence I heard, that does not make any sense. The Father's Day incident was the first of the allegations; Ms. Rogers did not go to the police until more than six months later, and after a period of time when the parties had separated. The suggestion that she would create incriminating photos for some potential future use and that this was the reason she threw herself down his stairs is contrary to common sense, and contrary to the evidence I heard of the nature of their relationship at that time.

[57] Mr. Temoin's evidence on this is also inconsistent with his own actions. When Ms. Rogers fell, it appears he tried to catch her. This is confirmed by her evidence, and also by the photographs of the scratch mark on her torso. It makes sense that this mark was caused when he tried to prevent her from falling. But if she "flung herself like a diving board," which was Mr. Temoin's evidence, it does not make sense that he would have been able to catch her torso, scratching her in the process, to try to prevent this unexpected "dive."

[58] I do not accept Mr. Temoin's evidence of how Ms. Rogers fell down the stairs. I am also not left with a reasonable doubt on the basis of his evidence.

[59] Ms. Rogers' testimony on this allegation was that Mr. Temoin was attempting to prevent her from leaving by grabbing her. It was the change in pull from him that caused her to lose her balance and fall down the stairs. She did not believe he intended her to fall down the stairs. It wasn't until it was put to her in cross-examination that she acknowledged that Mr. Temoin had tried to catch her to prevent her from falling, and that that was the cause of the scratch mark. Her evidence in chief left the impression that the scratch mark to her torso was simply another injury caused by her close contact with him when she fell. I have considered this discrepancy, and find it is understandable due to the way her examination-in-chief unfolded. It does not appear to me that she purposefully withheld this. I do not see it as an inconsistency in her evidence.

[60] Mr. Temoin's evidence confirms much of Ms. Rogers' evidence about how this event unfolded. They agree they were arguing about her wish to visit her father. They agree they were on the stairs. Mr. Temoin agrees he placed his hand upon her; he says on her back to pass her while Ms. Rogers says forcibly pulling on her arm to prevent her from leaving. They agree she fell and that she landed hard. That is confirmed by the picture of the bruising to her leg taken in her car the next day.

[61] I accept Ms. Rogers' evidence that Mr. Temoin forcibly pulled on her arm to prevent her from leaving. Her account of this argument on the stairs makes sense. It accords with common sense and human behaviour that he would grab her to prevent her from leaving in the midst of this disagreement. The fact that she took photos of the injuries that occurred also makes sense to me. This was a surprising incident; that she would document it the next day accords with common sense and human experience. I accept that Mr. Temoin did not intend to cause her to fall down the stairs, and that he tried to prevent the fall, resulting in the scratch mark to her torso.

[62] But grabbing Ms. Rogers' arm to prevent her from leaving was an intentional application of force. Ms. Rogers was not consenting to the application of this force. And, on the totality of the evidence that she was trying to leave, had grabbed her things, and was saying she was leaving, I find Mr. Temoin knew that Ms. Rogers was not consenting to the application of this force.

The Niagara Falls Allegation

[63] Mr. Temoin was candid in his evidence that his memory of this incident had been impacted by the use of alcohol and cocaine. However, he maintained that he did not throw the bench at Ms. Rogers. His evidence was he flipped it over, but that it was four or five feet away from Ms. Rogers when he did so.

[64] Mr. Temoin's evidence about this incident made sense. That he and Ms. Rogers would be drinking on their romantic getaway accords with common sense and human experience (Ms. Rogers' contrary evidence on this point did not make any sense). I accept that they were drinking, and I also accept Mr. Temoin's evidence that they were doing cocaine (Ms. Rogers' flat denial that she did not take drugs due to their role in her mother's death was directly contradicted by Mr. Lopes' evidence).

[65] Mr. Temoin acknowledged that he had become jealous and started an argument when Ms. Rogers received contact from another man. He was candid about this. I accept his denial that he assaulted Ms. Rogers, and I accept his denial that he threw the bench at her. I have no doubt that there was a volatile argument, but I am not satisfied that Mr. Temoin committed either an assault with a weapon or a lesser included assault by pushing Ms. Rogers to the ground or choking her.

The Blake Court Allegation

[66] Mr. Temoin's evidence about what occurred at Blake Court is, in many respects, inconsistent with the evidence of the three other witnesses that night -- Ms. Zanre (who was called by the defence), Mr. Lopes and Ms. Rogers.

[67] Ms. Zanre was awoken by loud yelling, while Mr. Lopes described hearing Mr. Temoin and Ms. Rogers screaming; Mr. Temoin would not agree he was anything more than "stern." Mr. Lopes testified that when he reached the banister he observed Mr. Temoin grabbing Ms. Rogers by the arms/wrists, a scuffle where she was pushing him away, and then the two falling to the ground where Mr. Temoin pinned her; Mr. Temoin testified that it was Ms. Rogers who grabbed at/punched at/bit at him, and flatly denied that he pinned her to the ground (or that they were on the ground at all). Mr. Lopes testified that he came down the stairs telling Mr. Temoin to let her go; Mr. Temoin said Mr. Lopes remained at the top of the stairs with Ms. Zanre (who, on her evidence, never left their bedroom). While Mr. Temoin's evidence that it was he who was telling Ms. Rogers to leave was somewhat corroborated by what Ms. Zanre overheard, she was not in a position to observe what was happening downstairs and the limited corroboration of Mr. Temoin telling Ms. Rogers to leave as he was proceeding upstairs was not incompatible with the rest of the evidence I heard.

[68] Mr. Temoin's evidence also lacked internal consistency and did not make sense. His evidence that he was telling her to go, that she gathered her things to leave, but then that she was refusing to leave and that she got between him and the stairs when he tried to go to his daughter does not accord with his version that he couldn't get her to leave. His refusal to acknowledge that he was yelling, when it only makes sense that he would have been yelling, also lacks credibility.

[69] I do not accept Mr. Temoin's version of events in the Blake Court incident. Nor am I left in a doubt it, or by the evidence of Ms. Zanre. While Ms. Zanre's evidence has some inconsistencies with the evidence of Ms. Rogers, this is not a case where the acceptance of the evidence of Ms. Zanre leads to a reasonable doubt as to the substance of the physical allegations, which she did not see.

[70] I turn then to the evidence marshalled by the Crown of this event. Ms. Rogers' evidence on many of the main points of this event is also inconsistent with other evidence.

[71] Her evidence that Mr. Temoin pushed her and she fell into the coffee table face-first, knocking the food and snacks off of the table is not consistent with what Mr. Lopes described, which was the sound of glass breaking and finding the television remote on the ground after. Her testimony that Mr. Temoin, in the hallway, threw her to the ground and then sat on top of her is inconsistent with what Mr. Lopes observed from the top of the stairs. Her evidence that, while on the ground, Mr. Temoin choked her and covered her nose with his hand so she couldn't breathe and bit her on the neck is inconsistent with what Mr. Lopes described. I do not accept her evidence as to these assaults.

[72] Finally, her evidence that Mr. Temoin followed her outside and threw small stones at her truck in order to taunt her, which is the basis of the allegation of assault with a weapon, does not make any sense. It does not accord with common sense or human experience. The anger she had described from Mr. Temoin, being suddenly so dulled and turned into a taunting behaviour, defies common sense and does not accord with the descriptions of Mr. Temoin's demeanor given by Mr. Lopes or Ms. Zanre. I am not satisfied that this event occurred.

[73] I accept the evidence of Mr. Lopes on what occurred at Blake Court. His evidence was straightforward and logical. It accords with common sense and human experience. He was in a position to see almost the entirety of what occurred, or at least the entirety of what occurred in the hallway. What he described, which was more in line with a volatile argument in which both Mr. Temoin and Ms. Rogers were "scuffling" accords with the totality of the evidence about their states of mind and behaviour that night.

[74] It was suggested that Mr. Lopes bore a grudge against Mr. Temoin on the basis of unpaid debts. I accept Mr. Lopes' denial of this. He acknowledged he may have sent an angry text to Mr. Temoin, but did not remember doing so, which makes sense in the context of the breakdown of their roommate relationship, and his explanation about how Mr. Temoin had spoken to him about his dogs. Mr. Lopes had no special interest in or reason for testifying on behalf of Ms. Rogers (although he acknowledged she had asked him to testify), nor is there any reason to believe he colluded or tailored his testimony for her (given the inconsistencies with hers).

[75] I find that Mr. Temoin was grabbing Ms. Rogers in the hall while she was trying to leave. Ms. Rogers was turning around and pushing Mr. Temoin away. Mr. Temoin grabbed her by the wrists and they fell to the ground. When on the ground, Ms. Rogers was on her back with Mr. Temoin over top of her. He had her by the wrists and was holding her down. She could not move, which is why Mr. Lopes began telling him to get off of her. Mr. Temoin's whole body was over top of her hips, with his knees on the ground straddling her. It wasn't until Mr. Lopes came down the stairs telling Mr. Temoin to let her go that Ms. Rogers was able to get up and leave.

[76] Ms. Zanre's evidence that Mr. Temoin was telling Ms. Rogers to leave and that he came upstairs and down the hall toward his daughter's room is not inconsistent with the events at the end of what Mr. Lopes described. I find that Ms. Zanre's observations were of this portion of events, and they do not cause me any doubt in accepting Mr. Lopes' evidence.

[77] Grabbing Ms. Rogers' wrists and pinning her down to prevent her from leaving is an intentional application of force. Ms. Rogers was not consenting to the application of this force. And, on the totality of the evidence that she was trying to leave, had grabbed her things, and was saying she was leaving, I find Mr. Temoin knew that Ms. Rogers was not consenting to the application of this force.

The Criminal Harassment Allegation

[78] Mr. Temoin testified that, after Nov. 29, their relationship was over. He denied driving by her residence or sitting outside of it.

[79] His evidence that he did not drive to her house on Christmas Eve and Christmas day was corroborated by the evidence of Ms. Delaney. While she was not with him for the entirety of Christmas Eve, her evidence that they were together all of Christmas Day is completely inconsistent with Ms. Rogers' testimony that she saw Mr. Temoin's truck outside of her residence and believed he had sent the email about her mother while watching her house.

[80] Mr. Temoin's evidence about what he did and how he felt about the relationship break-down also makes sense. I accept that this had been a volatile relationship, and that after Nov. 29 he was finally done with it. I accept that, on the basis of that, he had no reason to harass Ms. Rogers by repeatedly driving by and parking outside of her residence. I accept his evidence and the evidence of Ms. Delaney that he was not outside of her residence on Christmas Day. I accept his evidence that he did not beset or watch her dwelling in the days leading up Christmas Day.

[81] I appreciate that Ms. Rogers received a terrible email from Mr. Temoin, and that email may have caused her to believe she had seen his truck around her home in the days leading up to that. However, even if I had not accepted Mr. Temoin's denials, Ms. Rogers' evidence of her belief that she saw his truck on the basis of a sticker that she could no longer describe and a license plate that did not belong to Mr. Temoin but that she recognized from her regular association with his vehicle would not have been sufficient for me to be satisfied that Mr. Temoin was engaged in besetting or watching her dwelling house.

[82] Finally, I have considered the suggestion that Ms. Rogers went to the police for revenge after Mr. Temoin sent the email. I agree that this email appears to have been the precipitating event for her police complaint. But I do not accept that she has completely fabricated her allegations as a means of getting back at Mr. Temoin. While I had many issues with her evidence, those portions I have accepted -- those corroborated by Mr. Lopes, and that Mr. Temoin grabbed her arm to prevent her from leaving on Father's Day -- had the ring of truth to them.

[83] There will be findings of guilt on counts 1 and 4. Counts 2, 3, 5 and 6 are dismissed.

Released: July 25, 2022 Signed: Justice Robert Wright