Ontario Court of Justice

Date: 2018-01-15

Between:

Her Majesty the Queen

— and —

Gerrick Anthony Lewis

Judgment

Evidence heard January 15, 2018.

Judgment delivered January 15, 2018.

KENKEL J.:

[1] Mr. Lewis called his former spouse at 2 a.m. and several times thereafter. He admits, "I wasn't right at the time." After years in Alberta he'd gotten his life back together and had returned to Toronto in hopes of seeing his daughter. When he returned he found that his former girlfriend had married another man and she was pregnant. He didn't get the access to his daughter that he'd hoped due to domestic problems in the past.

[2] The complainant testified that Mr. Lewis was upset and angry. He called repeatedly and told her that he would "take her out" and take out "that guy" referring to her husband. He also said "I will kill you." He threatened to go to his daughter's school and take her away. The complainant was upset and scared given their history. Even though she didn't think Mr. Lewis knew where his daughter went to school, she called the school to warn them of the threat. She then went to the police station to report the incident. The complainant said Mr. Lewis has threatened her in the past but the circumstances of this incident caused her to say "enough is enough".

[3] Mr. Lewis admitted that he called several times at that hour although he denied calling repeatedly until 6 a.m. He said he wasn't angry but he was frustrated with not being able to see his daughter. He didn't threaten to kill his former girlfriend or her husband. He didn't threaten to take his daughter from school and it wouldn't make sense as he doesn't know which school she attends. Mr. Lewis described the complainant as a "gold digger" who made this complaint because she wants money and wants to exclude him from his daughter's life now that she's moved on.

[4] To determine whether the Crown has proved the two charges beyond a reasonable doubt I must consider the credibility of both of the witnesses in the context of all of the evidence.

[5] The complainant was a forthright witness who testified in a neutral, factual manner despite the allegations and domestic context she described. She has no criminal record. She was not cross-examined. Despite the fact that she was repeatedly woken from sleep, she was able to recall the details of the brief conversations at issue.

[6] Mr. Lewis gave his evidence in a forthright manner as well. He has an extensive criminal record over 30 years including crimes of dishonesty that are relevant to the issue of credibility. While he was pleasant and calm in court, he conceded that he was in a different frame of mind when he made the late night calls.

[7] Considering all of the evidence heard as a whole, I find I'm unable to accept Mr. Lewis's evidence as true nor does it leave a reasonable doubt for the following reasons:

• The complainant's description of the accused and his demeanor is consistent with the circumstances of the calls – repeated calls after 2 am. The accused's evidence that the calls were simply to discuss child access is inconsistent with that timing. After many years where he was content with no contact there was no child access issue that couldn't wait until morning.

• The complainant's response and her actions after the call are logically consistent with her evidence.

• The accused's evidence that the complainant is a "gold digger" who fabricated threats against him to exclude him from his child's life makes no sense. Mr. Lewis is unemployed and an unlikely target for a gold digger. He's had very little involvement in his daughter's life to this point but that's a result of decisions and choices that he has made. There's no reason for the complainant to fabricate evidence or exaggerate evidence to exclude Mr Lewis from her daughter's life as to this point he's done that himself.

• The circumstances of the call and even the accused's description of his mental state at that time show that he was not in a calm frame of mind. Unlike the complainant, Mr. Lewis did not remember the details of the discussion beyond his denial that he did not utter death threats. I find his recollection is unreliable in that context and I can place little weight on his evidence.

• The complainant has no criminal record. Mr. Lewis has convictions involving dishonesty which I find detract from his credibility apart from the concerns listed above.

[8] I find that the complainant was a credible witness and considering all of the evidence I accept her account of the conversations including her description of the threats uttered. I can find no credible evidence which could reasonably leave a doubt on either count.

[9] I find the Crown has proved both counts beyond a reasonable doubt. There will be findings of guilt.

Delivered: January 15, 2018.

Justice Joseph F. Kenkel