Introduction

[1] Oral Lewis faces five charges on this indictment. He also faces two fail to comply offences. His culpability on those offences will flow from my determinations of his liability on the principal five charges in the first indictment. In summary, Crown counsel alleges that he attempted to rob C.A. while armed with an imitation firearm, that he forcibly confined both C.A and A.M., that he assaulted C.A., that he used an imitation firearm in the commission of those offences, and on the second indictment, that in doing what he is alleged to have done with an imitation firearm and while on house arrest, he failed to comply with two prior prohibition orders.

Analytical Framework

[2] In determining whether the Crown has proven any or all of these charges against the accused beyond a reasonable doubt, or has proven any lesser but included offences arising out of the evidence, I have reminded myself of the burden of proof the Crown bears. Proof beyond a reasonable doubt is not to an absolute certainty, but it does require that a trier of fact be “sure” that the elements of the offences have been proven, either on direct evidence or on inferences that may reasonably arise from circumstantial evidence. If more than one reasonable inference arises from circumstantial evidence, then the point in issue is not proven to the criminal standard. Guilt must be the only reasonable inference before the burden will be satisfied.

[3] Proof beyond a reasonable doubt requires a level of certainty that far exceeds the balance of probabilities. Instead, it approaches certainty, while also recognizing that nothing can ever be known for certain. There is no proof beyond a reasonable doubt where more than one reasonable inference may be drawn from the circumstantial evidence in the case.

[4] I have reminded myself as the trier of fact that I can accept some, all, or none of a witness’s testimony. I am to be guided in those determinations by the same cautions and factors that I regularly advise jurors to use in determining what the facts are in any case. However, the basic proposition remains that the defence did not have to prove anything on this trial. The burden to prove the elements of the offences and to prove culpability, from start to finish, rested solely on the Crown.

[5] The accused, Oral Lewis, testified in his own defence. I am required to assess his evidence in the same way that I assess the testimony of any other witness. I have reminded myself that in deciding how much or little I believe of and rely upon the testimony of any witness, including Oral Lewis’ testimony, I may believe some, none or all of.

[6] Since he testified, the evidential tests established in R. v. W. (D.)[^1] are also called into play. As is well known, that test requires that I must find Oral Lewis not guilty if I believe and accept his evidence that he did not commit the offences charged.

[7] If, after a careful consideration of all the evidence, I am unable to decide whom to believe, then I would be required to find Oral Lewis not guilty because Crown counsel would have failed to prove Oral Lewis’ guilt beyond a reasonable doubt.

[8] However, even if I do not believe Oral Lewis’ evidence, if it leaves me with a reasonable doubt about his guilt, or, about an essential element of one or more of the offences charged, then I would be required to find him not guilty of that offence, or those offences.

[9] Finally, and of great importance, even if Oral Lewis’ evidence does not leave me with a reasonable doubt of his guilt, or, about an essential element of the offences charged, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

What does the evidence establish?

[10] The Crown’s case was comprised principally of the evidence of C.A. and A.M., and to a lesser extent “Alex”, a local handyman, and that of several police officers who attended the scene at 40 Gerrard Street East in Toronto, where the offences allegedly occurred. Those officers arrested the accused, took scenes of crime photos, and took statements from the participants. A number of exhibits were also filed. These included a drawing by C.A. of the layout of Apartment 2403 at 40 Gerrard East, and a CD of video surveillance footage from video cameras mounted in the elevators and the lobby area of 40 Gerrard St. East. The accused testified at this trial. In this section of these reasons I have summarily set out what the key parts were of the evidence, and my principal findings relative to the evidence of the witnesses, including the accused, and relative to the offences charged.

[11] It will be helpful to understand the conclusions I have reached on this case to understand that this is one of those cases where none of the evidence of any of the key witnesses, including the accused, C.A. and A.M. is entirely credible, believable or reliable. There are too many reasons for that conclusion to enumerate. Only one who actually watched this short trial and the amazingly contradictory evidence of the principal witnesses could understand the reality to which I refer. An exception to my suspicions relating to much of the evidence of A.M., C.A. and the accused, was the evidence of “Alex.” I actually found his evidence to be helpful in trying to unravel what had actually happened, and whether there were any offences committed by Mr. Lewis in the course of the total five-minute interaction that took place between himself, C.A., A.M., A.M.’s friend, and Alex.

[12] The evidence showed that the initial complainant, C.A., is an escort, a prostitute, engaged in the sex trade. At the time of these events, she worked out of apartment 2403 at 40 Gerrard Street East. On January 30, 2017, she was working out of that apartment with several other females. The main other actor is A.M., the so-called “Mother Hen” of the establishment, to use her own words, and another woman who was present that day, a friend of A.M. She and A.M. were having coffee together in the kitchen when these events unfolded.

[13] Finally, a Hungarian fellow named Samdor Smadja, who they all referred to as “Alex”, was also present. He was a handyman and knew A.M., as he had done other work for her in her apartment. On that day he was working to install a new temporary and moveable wall in the living room area, a wall that would permit it to be divided into two rooms from time to time as circumstances might require.

[14] Returning to the events that transpired between the accused and C.A., Mr. Lewis contacted C.A. from his cell phone to arrange a date. He said he had just received $1,000 payment from a friend, Angus, for work he had done in the late fall of 2016. He came downtown, went to McDonalds on Yonge at Gerrard, and while drinking his McDonalds coffee, he was browsing Backpage.com looking for a woman nearby who would provide him with sexual services. He was looking for an hour of oral sex, fellatio, and intercourse, a so-called “suck and fuck” encounter.

[15] As he browsed the Backpage.com advertisements, he saw an advertisement for “Abigail”. The pictures on the ad showed she was 22 years old, pretty and petite. He was attracted to her. He called the phone number on the Backpage ad. However, unbeknownst to the accused, as he would later discover, it was not Abigail, but C.A. who answered the phone. They arranged a date to take place within a short time thereafter.

[16] While still sitting in McDonald’s, Mr. Lewis also said he used that occasion to buy a BB gun from someone he happened upon in the restaurant. That person was begging for money, and asked for a toonie, but then, conveniently, just happened to offer to sell Mr. Lewis a BB gun. That was seemingly also very fortuitous and timely, because Mr. Lewis said his own nephew had lost his own BB gun. So, very thoughtfully, the accused said he decided he would buy that imitation firearm for his nephew. The seller wanted $60, but the accused said he paid only $30.

[17] Importantly, Mr. Lewis also acknowledged in his evidence that when he and the unknown vendor concluded their sale of the BB gun at McDonald’s, they did so in private, in the washroom. They concluded their transaction privately without observers because Mr. Lewis plainly admitted in his testimony that if any of the other patrons of McDonald’s at that time had observed him undertaking a firearm purchase with the unknown vendor, even if only an imitation firearm, they would not have known the imitation from the real thing and they would have been frightened and would have called out “Gun!”.

[18] In acknowledging that reality, Mr. Lewis also indirectly confirmed that persons who saw that imitation firearm and did not know that it was an imitation, would rightly be in fear for their own safety.

[19] The accused then went to 40 Gerrard. The video evidence shows him in the lobby of the apartment building calling on his cell phone. Those images correspond with the time when C.A.’s cell phone shows she was receiving calls and texts from the accused. They both testified that she gave him the apartment number and the buzzer code, and he then entered out of the lobby to the elevator area to take the elevator to Apartment 2403. As the accused put it bluntly, in their earlier calls, C.A. had agreed to “suck and fuck” for an hour for the price of $300. From the time Mr. Lewis gets off the elevator on the 24th floor until he goes back on the elevator to leave the building is a very short period of just over five minutes in total.

[20] As he was still in the hallway on the 24th floor, C.A. calls 911. Then, seemingly realizing that Mr. Lewis has left, she plainly hangs up the call. The 911 operator tries to call her back. She does not answer. She weakly tried to cause me to believe the phone malfunctioned. I did not believe that for a second. She chose not to answer. When 911 calls back again, some minutes later, C.A. says everything is fine and the police do not need to come. However, the operator tells her the police are already there and will be up to the apartment in seconds.

[21] Officers attended the scene. They attended the stairwell, not locating the suspect they proceeded to the area of the main floor elevators. At this time, the suspect stepped off the elevators and he was immediately detained. The reason for the detention was explained to the accused, and then a cursory pat-down search for officer safety, with Mr. Lewis actually telling the officers that the BB gun was in his pants’ waistband on the left side. It was then revealed that the accused was in possession of a black BB gun that bore, in Officer Li’s evidence, a strong resemblance to a Colt 1911 semi-automatic pistol.

[22] The accused was arrested and transported to 51 Division at which time the Toronto Police Hold Up Squad continued the investigation.

[23] Returning to the start of his presence in Apartment 2403, it is from that point that the stories of the principal witnesses diverge.

[24] C.A. opened the door and the accused went inside the apartment. He saw no one else. He asked her and was permitted to use the washroom to the left of the front door. When he came out of the washroom, both agreed he paid C.A. $300. Importantly, he testified that he did not think she was Abigail, the woman on the website, but rather a collector of the fees that are always paid up front, as the evidence showed was common in sex trade venues. She told him to go into A.M.’s room and “wait for the girl.” He thought Abigail would be coming to service him. He said he went into the room and sat on the edge of the bed to wait. C.A. took the money, left the room, and put the money somewhere else.

[25] But then, moments later, when the door to A.M.’s room opened again, it was C.A., not “Abigail”, who came back in. C.A. said she was the person he had contracted with to provide the sexual services, but the accused said he wanted to see the other girls, because he said she was not the one who he had spoken to, and not the one he had agreed to pay for sexual services. The accused said she was not the person whose Backpage.com ad he had responded to. He told her he wanted his money back.

[26] However, C.A. said the other girls were busy with other clients. She said, “[w]e don’t give money back.” At that turning point, they both agree that he pulled out the BB gun from his jacket pocket. It was obviously a gesture of power and meant to convey the threatening message that he meant to have his money back. C.A. apparently did not know it was an imitation firearm, and she was frightened by it. Mr. Lewis told her he wanted to see the other girls. He was looking for Abigail, the girl whose picture he had seen on Backpage.com, and whose number he had called, and who he was expecting would be the person providing him with sexual services.

[27] Apropos of the Backpage ad, it is important as an aside, that C.A admitted in her testimony that she used “several different Backpage ads” to advertise her services. It appeared from the evidence to have been a relatively common practice in the sex trade to engage in photographic “bait and switch”, so to speak, where a prostitute would use different Backpage and similar internet advertising, not always with their own pictures, or accurately reflecting what was “on offer.”

[28] Mr. Lewis said that after he pulled out the imitation firearm and confronted C.A. with his demand to have his money returned, that they walked “calmly” to the kitchen, and that the BB gun was just hanging in his right, hand down by his side, as he went with her to the kitchen. However, C.A. testified that their interaction and movement was not calm at all. She testified that he grabbed her hair and shirt and was pushing her toward the kitchen while he was waving the imitation firearm around. She testified she screamed out “Electra!”, A.M.’s working name.

[29] C.A. testified that Mr. Lewis had dragged her by the hair into the kitchen, and that he forced Alex into the kitchen as well, but the other two were already there. I certainly accept it would not likely have been a calm walk together to the kitchen, as Mr. Lewis tried to suggest, and I reject his evidence that it was. Mr. Lewis was becoming increasingly angry that he had paid $300 but would not be serviced by Abigail, whose services he believed he had contracted for, but rather by C.A., who he regarded as “fat and unattractive.”

[30] However, Mr. Lewis admitted that once they were in the kitchen, he was in fact waving the imitation firearm around in the air. As he testified, he showed how he was gesticulating once he was in the kitchen, waving his arms and hands around, one of which was holding the imitation firearm. It was clear from the evidence that he was waving his arms that way with increasing vigour and anger, as he demanded either “money” or “his money” back from the people gathered in the kitchen at 40 Gerrard East, Apt. 2403.

[31] Certainly, the presence of the imitation firearm would have caused the situation to be far from calm, and indeed frightening to the four individuals involved, who had no idea that the firearm was not real, and who would, or at least certainly could reasonably have viewed it as being a real and life threatening firearm if used. And in fact, it is plain that C.A. and Alex thought it was real, perhaps with the exception of A.M.

[32] I have no doubt based on the evidence that C.A., A.M. and Alex, at least, each feared for their safety and felt threatened as Mr. Lewis confronted them demanding money and waving the imitation handgun in the air. Alex actually said that he pointed it at them.

[33] As for other evidence of A.M. and C.A., it was contradictory in many respects. C.A. said she feared calling police, and knew A.M. would be angry with her if she did. The foundation for this was C.A.’s view that A.M. wanted to keep police away from her brothel. However, A.M. said it was good for the police to come and she denied telling C.A. not to call the police. However, it was obvious to me that her testimony that she knew “nothing of what was going on in the apartment”, or that “sexual services were being provided”, was utter rubbish and unbelievable.

[34] Mr. Lewis may have pushed C.A. forward in front of him, but A.M. and the second girl were already in the kitchen, and Alex may have been, but there is no evidence of any reliability that the accused actually corralled the three women and Alex into the kitchen and “forcibly confined them there”. I find that Mr. Lewis was likely standing close to the doorway of the kitchen, but no-one actually said they felt they could not leave. I find there is no evidence that was provided by either C.A. or A.M., or indeed Alex, though no allegation is made relative to him, that can reasonably support forcible confinement charges against the accused to the criminal standard. Those two counts will be dismissed.

[35] While C.A. did tell the police about a small scrape on her knee as an injury caused by the accused, allegedly from her knee hitting Alex’s toolbox, I find that physical assault claim to be unfounded, subject to the comments that follow. She made no complaint to police about the accused pulling her hair, or of having had an injury caused by the forcible pulling of her hair. The police took no picture, because she acknowledged she did not report it.

[36] As for the “scrape from the toolbox”, the evidence shows that to be an improbability. Alex’s “toolbox” could not have been the cause of that very minor injury, because Alex’s evidence placed the “toolbox” in a location in the living room, close to the farthest wall away from the kitchen. The accused and C.A. would not have passed Alex’s “toolbox” as they made their way to the kitchen. So, if those events were the alleged source of the minor, almost unobservable scrape, it could certainly not be determined on this evidence beyond a reasonable doubt that it was caused by Alex’s “toolbox”. Even more important, however, is the fact that Alex’s “toolbox” \was not a toolbox, but instead, as Alex described it, it was a collapsible tool bag, so it did not likely have any solid or sharp edges to it that could have caused injury. I find C.A.’s claim of an assault to her knee to be unreliable and accordingly dismiss it.

[37] Returning to the main charges, the evidence was clear that A.M. and her friend were already in the kitchen, and while he could not recall for certain whether he was in the living room or in the corner in the kitchen near the microwave at the precise moment these events quickly unfolded, Alex the handyman was certainly in the vicinity. He was certainly within a circle of three feet, either inside or just outside the kitchen doorway, because the photographic evidence shows how small the spaces were.

[38] The police synopsis suggests based on witness statements that the accused showed a black handgun to the victims as he forced them into the kitchen. It asserts that while in the kitchen, he pushed one of the victims to the ground while confining the others. There is no evidence whatsoever to support those allegations. What I am certain that Mr. Lewis did do, as noted, was to demand either “money” or “his money”, to cause C.A. to go to the kitchen to look for the other girls, and to tell Alex to go into the kitchen if he was not already there.

[39] The police report suggests the accused was unable to obtain anything, and that he then vacated the apartment. That does not come even close to describing what actually happened based on the evidence I heard.

[40] Instead, it is plain to me that Mr. Lewis was demanding money. He said he was demanding “his money”, but the others said they did not recall hearing him refer to “his” money. Perhaps that was because of the commotion, but it could also have resulted from the fact that Mr. Lewis speaks very quickly and does have a very strong Islander accent from the Caribbean, that can cause him to be somewhat difficult to understand.

[41] However, in my view, the fact that he was looking for “his own money” to be returned to him is actually corroborated by Alex’s evidence. Alex testified that he did not want to be shot so he pulled out his wallet and offered it to Mr. Lewis. But both Alex and Mr. Lewis testified that Mr. Lewis rejected that offer. He did not want Alex’s money. He wanted his own money back, money that he believed had been taken by C.A. under false pretenses.

[42] This evidence combined with C.A.’s evidence about using several different forms of advertisement on Backpage.com, even if absent detail, causes me to believe at least this part of Mr. Lewis’ evidence. It made no sense to me that he would be browsing Backpage.com ads for prostitutes located nearby whom he could rob. It made no sense to me, if his objective was robbery, that he would not have taken Alex’s wallet, but both agree he did not.

[43] However, that is far from the end of the story. Mr. Lewis denies that he took A.M.’s purse, or that they struggled over it as A.M. was yelling at him to leave, and pushing him back towards the apartment doorway.

[44] It is alleged that the accused made a demand for money, grabbing a purse from A.M. off of the countertop, and rummaging through it, and then struggling with her over that purse.

[45] However, A.M. was clear that while it looked like it could be her purse left behind on the living room sofa, and that it was her bra next to the purse and her business cards that were on the floor, she was insistent that she had not struggled with Mr. Lewis over the purse. She did not know where the purse was, but knew it was not removed from the apartment. More importantly, even though she knew there was money in that purse, she testified that nothing, none of her money, was removed from that purse.

[46] As well, however, she testified that she did not remember if Mr. Lewis was upset about money, if he asked to see C.A.’s pimp, and she did not remember ever being told to stay in the kitchen, remembered no clicking of the imitation handgun, and was certain that Mr. Lewis took no money from her purse.

[47] None of this is consistent with an attempted robbery. The evidence showed there was money in the purse, and that Alex offered Mr. Lewis money. He would not take money from Alex, but neither did he take the money that A.M. says was in the purse. The only logical conclusion is because he never actually handled that purse. If he had, he most certainly would have taken the money it contained, in recompense for the $300 given to C.A. under alleged false pretenses. Either based on his own evidence, to the extent it is believed and raises reasonable doubt because it could reasonably be true, or an absence of confirmatory evidence from the Crown relative to the alleged attempted robbery sufficient to satisfy step 3 of the tests in R. v. W.D., I find the Crown has failed to prove beyond a reasonable doubt that Mr. Lewis attempted to commit robbery against A.M. with an imitation firearm.

[48] But that, as well, is not the end of the story. I have found that the uncertain and unreliable evidence of the principal witnesses in this case cannot support findings of guilt beyond a reasonable doubt on any of the five principal charges laid in this case. However, there is a lesser but included offence that requires consideration.

[49] Under s. 265(1)(b) and (c) of the Criminal Code, our law provides for the offence of constructive assault. Those provisions read as follows:

265(1) A person commits an assault when

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

[50] In my view, even if the evidence does not support findings of guilt on the charges of attempted robbery with a firearm or using an imitation firearm in the commission of an indictable offence, it certainly does support findings of guilt on the lesser charge of constructive assault using an imitation firearm and using that imitation firearm in the commission of that indictable offence of assault.

[51] On his own evidence, there is no doubt that by his increasingly loud voice demanding his money and his gestures with the firearm, Mr. Lewis was threatening to potentially apply force to the occupants of the kitchen if he did not get his money back, contrary to s. 265(1)(b). Alternatively, while plainly carrying a weapon, his conduct could easily amount to having accosted C.A., A.M. and Alex within the meaning of s. 265(1)(c). While it is not an element of the s. 265(1)(c) offence, I am also satisfied on the whole of the evidence that I do accept that Mr. Lewis’ conduct would have, and did, cause those other persons to believe, reasonably, that he had the present ability at that time to effect his purpose, that is to have his money back, forcibly if necessary.

[52] I accordingly find Mr. Lewis guilty of constructive assault under either s. 265(1)(b) or (c) while armed with an imitation firearm, and I also find him guilty of possession of an imitation firearm while committing the indictable offence of assault, although in the latter case, in light of the findings of guilt arising plainly out of the same delict or facts and circumstances, the finding of guilt on the charge of possession of the imitation firearm will be conditionally stayed under R. v. Keinapple.

The Fail to Comply Charges

[53] The fail to comply charges arise out of conditions imposed in two recognizances of bail. One was granted on September 23rd, 2014 in respect of a sexual assault charge preventing the accused from possessing any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person). The second arose from a charge of Assault Peace officer, and Mischief under $5000. On September 1st, 2015, the accused was eventually released on a recognizance of bail, one of the conditions of which was “Reside at an address approved by the Bail Supervision Program and not move from that address without obtaining prior written approval for a new address from the Bail Supervision Program”.

[54] By committing the offence of constructive assault with an imitation firearm, the accused, Mr. Lewis, was not in compliance with his bail condition that prohibited him from possessing a weapon. However, Crown counsel has agreed to withdraw the charge of failure to comply relative to the residency requirement. In light of my conclusions on the principal offences, and finding Mr. Lewis guilty of the lesser but included offence as described above, a conviction will also be entered on the fail to comply charge relating to possession of weapons since the evidence shows that he committed the predicate offences while being non-compliant under that court order.

[55] Mr. Lewis will be convicted accordingly of Count 1. He is acquitted on Counts 2, 3 and 4. He is found guilty of Count 5 but I have stayed that charge under the principles in Keinapple. He will be acquitted on Count 6 and convicted on Count 7.

Michael G. Quigley J.

Released: July 31, 2019

COURT FILE NO.: CR-19-70000201-0000

DATE: 20190731

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ORAL LEWIS

Defendant

REASONS FOR DECISION

Michael G. Quigley J.

Released: July 31, 2019

[^1]: R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

R. v. Lewis, 2019 ONSC 4576

Case Summary

Introduction

Analytical Framework

What does the evidence establish?

The Fail to Comply Charges

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legislation 1