Court File and Parties

Court File No.: Central East, 11-1932 Date: 2012-07-13 Ontario Court of Justice

Between: Her Majesty the Queen — and — Michael Lewis

Before: Justice C. M. Harpur

Heard on: March 23 and April 17, 2012

Reasons for Judgment released on: July 13, 2012

Counsel:

• Shannon Curry, for the Crown
• J. Charles Syme, for the accused Michael Lewis

HARPUR J.:

Overview

[1] Mr. Lewis is charged with criminal harassment of Sylvia Stefanczuk and with uttering threats to Ms. Stefanczuk to cause "death or injury" to "the children of Sylvia Stefanczuk", both on March 25, 2011.

[2] The charges arise out of an incident between Ms. Stefanczuk and Mr. Lewis in the late afternoon that day when Ms. Stefanczuk was transferring custody of her and Mr. Lewis's six year old daughter, Madison, to Mr. Lewis.

[3] Ms. Stefanczuk and Jennifer Johnston, a woman who, with three young children, shared a house with Ms. Stefanczuk, testified for the Crown. P.C. Patrick Morrow and Mr. Lewis testified for the defence. Of these witnesses, only Ms. Stefanczuk and Mr. Lewis were present when the events occurred which form the subject matter of the charges.

[4] For the reasons which follow, I find Mr. Lewis not guilty of either charge.

The Evidence

[5] Ms. Stefanczuk said that, in March 2011 (and, indeed, currently), she and Mr. Lewis had an arrangement between them whereby the drop-off and pick-up place for Madison when custody was being transferred was an Esso gas station at Anne and Dunlop Streets in Barrie.

[6] On March 25, 2011, consistent with their dealings for the three or four previous months of this arrangement, Ms. Stefanczuk said Mr. Lewis texted her saying that picking Madison up at 5:30 p.m. at the Esso was a serious problem for him, given his job as a roofing crew supervisor on jobs distant from Barrie. As before, Mr. Lewis complained in his texts about not being able to pick Madison up from Ms. Stefanczuk's home some two blocks away from Anne and Dunlop Streets. Nonetheless, Ms. Stefanczuk said that, on this occasion, as previously, she insisted on the location and time, adding that if Mr. Lewis were unable to attend, he would have to make other arrangements to receive Madison the following day, something they had done a few times previously.

[7] Ms. Stefanczuk said Mr. Lewis did meet her, Madison and Ms. Stefanczuk's thirteen year old son by another father at the Esso, that he took custody of Madison and that he expressed anger at Madison's hair having a red streak from being dyed. Ms. Stefanczuk said she responded, "not now", bought a coffee at the Esso station, and began her walk home with her son. She said Mr. Lewis then drove up to her and her son in his car, with Madison in the back seat of the car, and began to complain again about the pick-up time and Mr. Lewis' inability to effect the pick-up at Ms. Stefanczuk's home. Ms. Stefanczuk said she responded to Mr. Lewis that he should email her, since this limited form of communication was part of their agreement. Ms. Stefanczuk said Mr. Lewis continued to drive his car slowly alongside her as she walked with her son north from Dunlop to Henry Street and then east on Henry to Boys Street. Ms. Stefanczuk said that she and Mr. Lewis exchanged words, including a remark by her that he stop harassing her, and that Madison was crying. She said Mr. Lewis said he wanted Madison each weekend, rather than every other weekend and that she refused. She said she reached a point where she had to cross Henry Street and walked behind Mr. Lewis's car, once other cars were present, out of fear that he might otherwise strike her. She said she told Mr. Lewis both "if you have problems take me to court" and "I can't deal with this now" or words to that effect.

[8] Ms. Stefanczuk said Mr. Lewis demanded to know why he couldn't attend at her home to get Madison. Ms. Stefanczuk said her response to him was the following:

"The other children that were residing in my home, my son and two other children were residing in the apartment downstairs at the home, were scared of him so it wasn't acceptable for him to come because they were at the home."

[9] Ms. Stefanczuk said that Mr. Lewis responded by yelling,

"If you think those kids are fucking scared of me now, just wait. Write it down. That's a threat".

[10] I have quoted Ms. Stefanczuk's exact words because Mr. Syme, for Mr. Lewis, has submitted that Mr. Lewis's words, even if uttered, did not constitute a threat to Ms. Stefanczuk's children, as alleged in the information, but rather to Ms. Johnston's children. Since Ms. Stefanczuk testified that she referred to her son as well as Ms. Johnston's children before Mr. Lewis uttered his responding words, I do not see any material disparity between the allegation contained in the information and Ms. Stefanczuk's evidence.

[11] Ms. Stefanczuk said Mr. Lewis had never previously followed her, that he spoke angrily and viciously, and that she was frightened. Ms. Stefanczuk said she went home and looked for the telephone number of the Barrie Police Service. She said she spoke to Ms. Johnston who helped her to contact the police.

[12] Ms. Stefanczuk also testified to a previous incident in which Mr. Lewis demonstrated violence in front of the children at her home. She said that, in October of 2009, following a telephone argument between Ms. Stefanczuk and Mr. Lewis over Madison, Mr. Lewis attended at her home at a time when Ms. Johnston's children and her own were all present in the house. She said that Mr. Lewis circled her home, banging at the home and its windows and yelling that he wanted his daughter. Eventually, she said, he ripped away part of the railing on the porch of the home. Ms. Stefanczuk said that she called the police over the incident, that they attended, and that they told her they could do nothing because of Mr. Lewis's right of access to Madison.

[13] Mr. Lewis gave a conflicting version of events on March 25, 2011. He said that Ms. Stefanczuk had texted him saying that he must be at the Esso at 5:30 p.m. or he would not have access to Madison that weekend. He said he was there punctually, that he expressed irritation about the hair dye and that he had ongoing concerns as whether Ms. Stefanczuk was attending to Madison's food and health needs. He said Ms. Stefanczuk "brushed him off" and told him to email her. He said he was uncertain as to what he said in response at the Esso station but that it only related to his concerns about Madison. So, too, he said, did his remarks as he drove alongside Ms. Stefanczuk relate only to these concerns. He said, "I wanted answers and wasn't getting them". Mr. Lewis denied making any threat against children to Ms. Stefanczuk, saying the allegation was ridiculous.

[14] Ms. Johnston testified to meeting with Ms. Stefanczuk on March 25, 2011, apparently as she came in from the walk home from the Esso. Ms. Johnston said Ms. Stefanczuk was visibly emotional and upset.

[15] Ms. Johnston also testified to another incident involving Mr. Lewis and violence at Ms. Stefanczuk's home. She said that, in October of 2010, she was at her and Ms. Stefanczuk's home with her own 2 children and babysitting both Madison and her nephew Jason. She said that Mr. Lewis attended at the door of the home. He told her he was going to take Madison. Ms. Johnston said that she insisted that Ms. Stefanczuk be called before allowing Mr. Lewis to take his daughter. She said Mr. Lewis then pushed Ms. Johnston aside and grabbed Madison, taking Madison to his car and driving away. Ms. Johnston said that the children at home at the time witnessed the incident and were afraid of Mr. Lewis because of it. She said she had made Ms. Stefanczuk aware of the incident after it occurred.

[16] P.C. Morrow testified that he interviewed Ms. Stefanczuk by telephone on March 31, 2011 in order to complete a Domestic Violence Supplementary Report. He said Ms. Stefanczuk seemed angry and he so indicated on the form. He also indicated on the form, based on Ms. Stefanczuk's remarks, that she did not fear Mr. Lewis would assault her or her children, that Mr. Lewis had not harassed or threatened her, and that there had not been prior incidents of domestic violence.

Analysis

a. Credibility

[17] I have applied the analysis set out in R. v. W.D.. Having done so, I accept the version of the events of March 25, 2011 related by Ms. Stefanczuk. I am not left in doubt about that version by the evidence of Mr. Lewis or the other witnesses. Ms. Stefanczuk struck me as a reliable witness. The picture she painted of Mr. Lewis was not uniformly negative, even with respect to matters about which only Mr. Lewis might contradict her. She acknowledged that he had not previously threatened or assaulted her or her children. She said Mr. Lewis moderated his volume of yelling at her once they left the Esso station. She said he did not swear at her until he made the threat. She said that, although Mr. Lewis abused drugs, it was not that but his excessive alcohol consumption which led to a lack of control, a distinction that a witness more set on vilifying than on telling the truth would probably not observe. She said that Madison needs her father in her life and that, while she has some concerns for Madison when she is in Mr. Lewis's care, Madison seemed to be well when she was with him and his new family.

[18] P.C. Morrow's evidence did not undermine that of Ms. Stefanczuk in any material respect. On re-examination, he acknowledged telling Ms. Stefanczuk that he only wanted her to tell him her views concerning the current incident, not prior incidents, that nonetheless he had heard from her about the prior incidents and that he thought she was answering incorrectly when she said "no" to whether she felt she had been harassed in the past.

[19] I did not have the sense, suggested by Mr. Syme, that Ms. Stefanczuk was fabricating the "if you think those kids …" remark by Mr. Lewis to achieve sole custody of Madison or gain some other advantage in the ongoing family law dispute.

[20] Indeed, Mr. Lewis' testimony is essentially consistent with Ms. Stefanczuk's as to what occurred from and after the meeting at the Esso station, with the exception of whether he uttered the threatening words she has attributed to him. As to precisely what he did say, at least when at the gas station, Mr. Lewis expressed uncertainty. I do not accept his denial of the remark attributed to him by Ms. Stefanczuk.

b. Uttering A Threat

[21] The question then becomes whether the conduct of Mr. Lewis described by Ms. Stefanczuk constitutes the offences charged. Turning first to the threat charge, I accept the law provided to me by Ms. Curry for the Crown that Ms. Stefanczuk's and Ms. Johnston's evidence of prior violent incidents at their home involving Mr. Lewis are relevant to the issue of whether a reasonable person in Ms. Stefanczuk's position would perceive Mr. Lewis's remark as a threat of death or bodily harm.

[22] Parenthetically, I note that the utter threat charge, as drafted, speaks of causing "death or injury" whereas the offence set out in s. 264.1(1) C.C. is causing "death or bodily harm". In my view, this mis-wording is not material. I share the view expressed by Dambrot J. in R. v. Da Silva, [2004] O.J. No. 2592 (S.C.J.) that the information as worded complies with s. 581(2) of the Criminal Code and would convey the allegation to Mr. Lewis, albeit in popular language. Alternatively, if the allegation constitutes a defect, it is a defect in form which can be amended pursuant to s. 601(3)(c) C.C. or 601(3)(b)(i) C.C.

[23] I also accept the Crown's position on two further points: (i) that it is not Ms. Stefanczuk's perception of whether or not Mr. Lewis was uttering a threat which is determinative but, rather, the perception of a reasonable person placed in Ms. Stefanczuk's circumstances on hearing Mr. Lewis' words: R. v. Clemente (1944), 91 C.C.C. 1 (S.C.C.); and (ii) even if Ms. Stefanczuk should be taken to have thought that Mr. Lewis would not assault her or her children, this does not necessarily negative the prospect that Mr. Lewis's actions might in future cause bodily harm to her children in the form of emotional trauma: R. v. McCraw (1991), 66 C.C.C. (3d) 517 (S.C.C.)

[24] In McCraw, the Supreme Court of Canada held that "seriously bodily harm" – now, simply "bodily harm" – means "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well being of the complainant". Thus, whether the inquiry is into what Ms. Stefanczuk might reasonably have perceived from Mr. Lewis's words on March 25, 2011, or into what Mr. Lewis intended to convey, his words could theoretically impart a threat notwithstanding the absence of any prospect of Mr. Lewis laying hands on Ms. Stefanczuk's children; a threatened repetition of his house-storming and the traumatizing of Ms. Stefanczuk's children as a result could constitute the offence.

[25] Thus, although "bodily harm" can include psychological harm, the essential question for this charge is whether Mr. Lewis's threat was one of a harm which could "interfere in a substantial way with the … psychological integrity, health or wellbeing" of Ms. Stefanczuk's children, in the words of the Supreme Court of Canada in McCraw. Given the prior incidents of violence at Ms. Stefanczuk's house, I have no doubt that another house-storming or peremptory taking of Madison from the home would have a powerful emotional impact on a child who witnessed either, and that both Ms. Stefanczuk and Mr. Lewis can be taken to have known of this. It is not clear to me, however, that the emotional upset which would be sustained by Ms. Stefanczuk's children by either such event would necessarily result in a substantial interference with the psychological health of Ms. Stefanczuk's children. One might argue that no emotional trauma experienced by a child can be considered transient or trifling. However, while this may be true, in the absence of proof by the Crown of substantial interference, I do not consider this a fact which a court can simply assume. S. 264.1(1) of the Criminal Code describes an extremely serious criminal offence, which, even when prosecuted summarily, as here, can result in a term of imprisonment of eighteen months. Each element of the offence, including the element of threatening bodily harm, must be proven beyond reasonable doubt. Although I am satisfied that Mr. Lewis uttered the threat described by Ms. Stefanczuk, I am not satisfied that it constituted the threat of bodily harm as that term is defined in s. 2 of the Criminal Code. Accordingly, Mr. Lewis is entitled to an acquittal on this charge.

c. Harassment

[26] The allegation set out in the information is harassment from "repeated following" of Ms. Stefanczuk by Mr. Lewis. The evidence here certainly substantiates a following, and even a sustained following, by Mr. Lewis of Ms. Stefanczuk from the Esso station along Henry and Boys Streets. However, several appellate courts have held that the offence described in s. 264(2) C.C. necessitates proof of following on more than one occasion: R. v. Ryback (1996), 105 C.C.C. (3d) 284 (B.C.C.A.); R. v. Ohenhen (2005), 200 C.C.C. (3d) 309 (O.C.A.). There is no such proof here. Mr. Lewis is entitled to an acquittal on this charge also for this reason.

Conclusion

[27] Before leaving these reasons I would like to make clear that I regard Mr. Lewis's conduct on March 25, 2011 as inappropriate and indeed, potentially criminal under s. 264(2)(d) C.C. He is not accused, however, of harassing Ms. Stefanczuk by threatening her or members of her family and s. 662 C.C. is not applicable in my view.

[28] Mr. Lewis's acquittal may well add to the understandable frustration Ms. Stefanczuk harbours as a result of the failure of the legal system to respond to her ongoing difficulties in dealing with Mr. Lewis. She seems to have acted reasonably and responsibly in the matter of raising Madison and I expect she will continue to do so. For whatever comfort it may be, I do, as indicated, regard her as a reliable witness. She is also a person entitled to the protection of Family Court orders or agreements and to the enforcement of Mr. Lewis's obligation of support, although these matters are clearly outside my jurisdiction.

[29] Mr. Lewis has allowed his anger at the breakdown of his relationship with Ms. Stefanczuk and her refusal to accede to his demands concerning Madison to cause him to speak and act toward her in a manner which brings him perilously close to criminal conduct and in a manner which is contrary to the family law agreement referred to in this proceeding. However, I think that Mr. Lewis, like Ms. Stefanczuk, ultimately wants what is best for Madison and, having been through this experience, will direct his energies in future to that end.

[30] At the moment, I consider the record in this case to support the making of a common law peace bond binding Mr. Lewis to keep the peace and to avoid contact with Ms. Stefanczuk, subject to reasonable exceptions. Should Mr. Lewis wish to show cause why such an order should not be made, a date for hearing will be set for this purpose.

Released: July 13, 2012

Signed: "Justice C.M. Harpur"