R. v. Lewis, 2017 ONCJ 589

CITATION: R. v. Lewis , 2017 ONCJ 589 COURT FILE No.: Toronto Region DATE: 2017·08·31 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JERMAINE LEWIS Before Justice L. Feldman Heard on January 26, March 29, July 20, 2017 Reasons for Judgment released on August 31, 2017 J. Gorda .................................................................................................................... for the Crown A.

DeMarco ...................................................................................... for the accused Jermaine Lewis FELDMAN J.: Introduction [ 1 ] Jermaine Lewis entered not guilty pleas to charges of Threaten Bodily Harm, Assault Resist Arrest, Attempt to take Weapon from Peace Officer and Fail to Comply with Probation. [ 2 ] It is alleged the defendant threatened to cause bodily harm to a T.T.C. bus driver whom he accused of placing him at risk of being late for work by purposely driving too slowly.

In addition, it is alleged that he assaulted police officers in the course of being arrested on an outstanding warrant and while being subdued attempted to take an officer’s gun from his holster. Mr. Lewis was injured during this struggle. Finally, it is alleged that he breached a term of his probation by failing to make full restitution. [ 3 ] The Crown called the complainant bus driver and 3 police officers in support of its case. Mr. Lewis testified in his own behalf.

I dismissed an application for a stay of proceedings based on injuries the defendant says were deliberately inflicted on him by the police. [ 4 ] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown. The Evidence The Threatening Charge [ 5 ] William Owens is 57 years old. He has been a T.T.C. bus driver for 34 years. On Sept. 8, 2014, he was driving a bus on his route on Morningside Rd from Finch Ave East to Kennedy subway station. At one point, Mr. Lewis told the complainant he had to get to Bellamy Rd by 6:25 a.m. Mr.

Owens described the defendant as agitated and angry. He explained to his passenger that he was required to keep to a timing

schedule and is monitored in that regard. [ 6 ] Mr. Lewis returned to his seat, but then came back and, the complainant says, threatened to punch him in the face if he didn’t get him to his destination on time. Shortly thereafter, the defendant came up again and showing the driver his fist, said he would punch him in the face if he were late. [ 7 ] Mr. Owen was uncertain the accused was serious on the first threat. By the second threat, the complainant was not in doubt. He pushed the yellow emergency button. He was told by Transit Control to pull over and empty the bus of passengers. He did so.

The police were called. [ 8 ] At first, Mr. Lewis stayed on the bus, but then followed the driver into a nearby gas station kiosk. He later followed Mr. Owen back to the bus and retrieved his bag. He began to walk westbound on Kingston Rd.

[ 9 ] Mr. Owen told the court that the defendant is a large and powerful man. Mr. Lewis is 6’3” and 260 lbs. The complainant was concerned for his safety. He had dealt with a similar complaint from Mr. Lewis the week before. [ 10 ] A review of the security camera on the bus tends to support the complainant’s material evidence. At 6:17 a.m., Mr. Lewis walks up quickly to the driver, seems angry and animated. He points his finger at him and then retreats. A minute later he returns. His body language is hostile. He stands close to the driver. He points his finger aggressively.

At 6:19 a.m., he returns and again points his finger, this time close to Mr. Owen’s face. He seems angry. [ 11 ] It appears next that the accused is yelling from the back. The driver leaves the doors open and pushes the emergency button. The passengers get off the bus. At 6:21 a.m., the defendant comes up to the driver and takes a swing at him. It is unclear if there is contact. [ 12 ] Mr. Lewis walks away gesturing and punching the air. He appears angry and aggressive. He bangs the front of the bus. Mr. Owen did not report the swing to the police.

He says he forgot about it, but remembered it on viewing the video. [ 13 ] At 6:22 a.m., Mr. Lewis returns and stands close to the driver. He is talking at him while gesturing. Two minutes later, he comes back again, is gesturing and seems angry. He leaves the bus at 6:25 a.m. [ 14 ] A police car arrives at 6:27 a.m. At this point, Mr. Lewis has retrieved his bag from the bus and begun to walk away. [ 15 ] The Crown played an additional security camera placed in the back of the bus. In it, Mr. Lewis can be seen talking to himself and gesturing.

At 6:17 a.m., he comes part way up the aisle and begins talking loudly to the driver. He is clearly angry. He repeats this behaviour a minute later. At 6:19 a.m., he walks up to the front for the third time. He is agitated and throws up his hands. At 6:21 a.m., the other passengers begin to leave. [ 16 ] The Esso Station video shows the defendant following the complainant into the kiosk and arguing with him. At one point, Mr. Owen is unable to leave because Mr. Lewis is standing in front of the door. Conflict with the Police [ 17 ] P.C. Philip Craig was dispatched at 6:23 a.m.

On arrival at the scene, he said he saw a large black male getting off the bus and walking westbound on Kingston Rd. The man looked upset. [ 18 ] P.C. Craig spoke to the driver, who wanted something done, but was unsure if that should include charges or merely a caution. The officer’s escort, P.C. Daniel Doyle, drove in Mr. Lewis’s direction. P.C. Doyle slowed his vehicle as he got close. P.C. Craig asked to talk to the accused. He was ignored. [ 19 ] P.C. Daniel Doyle pulled in front of the accused on the sidewalk. P.C. Craig got out and stepped in front of him.

The defendant was upset and did not want to engage with the police. He was yelling at the officer. He said not to touch him. [ 20 ] P.C. Craig told the defendant a number of times that he only wanted to talk to him. The officer can be heard on the in-car video camera saying, “I’m going to let you go…you’re not in trouble”. He told the accused he learned that it was the second time he had tried to punch the bus driver. [ 21 ] Mr. Lewis complained that he believes the driver had previously slowed down the bus on purpose in order to make him late for work, as he felt he had done on this day.

The officer can be heard on the in-car camera expressing understanding. He said, “I get it, you have to catch your train, you felt he was trying to screw you…I wouldn’t want to be late for work if the driver was going slow…”. P.C Craig explained that this conversation was tactical in getting the defendant to listen. He said he had no intention at that point of arresting him without hearing his side of the story. [ 22 ] When asked, Mr. Lewis provided his identification documents. The officer told him he would run his name and then let him go if there was nothing that required he hold him. Upon checking, P.C.

Craig learned there was an outstanding warrant for his arrest. [ 23 ] When the officer returned from his cruiser, he said the accused asked if he was going to be handcuffed. He was told he would be. P.C. Craig put his hand on him, but Mr. Lewis attempted to run between him and P.C. Jason Johnson, who was standing by. He put his arm around the accused’s waist. All three ended up on the ground. Mr. Lewis fell on his stomach but attempted to turn onto his back. The officer said the defendant was resisting. [ 24 ] P.C. Craig testified that he could feel his gun belt being tugged. His service vest got ripped off.

The officer punched the defendant twice in the face and climbed on top of him. He took control of his left arm while a colleague handcuffed his right wrist. Mr. Lewis was placed in the back of the cruiser. [ 25 ] The defendant complained of pain in his leg. He was taken by ambulance to Scarborough Centennary Hospital, where he was diagnosed with a partially torn Achilles tendon. He also suffered a strain to his right ligament and had back pain. [ 26 ] P.C. Craig suffered minor scrapes to his elbow, a cut on his left hand and redness to his right index finger.

He later filled out an ‘injured on duty’ report, but does not recall completing a ‘use of force’ report. He is 6’4” and 230 lbs. He has some training in the martial arts. [ 27 ] P.C. Doyle confirmed much of his colleague’s testimony. He observed the accused yelling that the bus driver was making him late for work again. He was present when his escort returned from a CIPC check of Mr. Lewis’s name. He heard the defendant being told that he was going to be arrested and said he saw him put a hand behind his back. P.C. Johnson was also present.

[ 28 ] P.C. Doyle told the court that when P.C. Craig put a hand on the accused, he tried to get away by running between P.C. Craig and P.C. Johnson, both of whom tried to restrain him. Mr. Lewis fell on his side. P.C. Doyle believes he landed on top of the defendant’s legs, while P.C. Craig gained control of his upper body. P.C. Doyle weighs 245 lbs. [ 29 ] P.C. Doyle thought he saw the accused attempting to grab P.C. Craig’s gun, so he took hold of his hand and used his body to pin his arm. The officers pulled him up. Mr. Lewis was limping. [ 30 ] P.C. Johnson arrived on scene in his own cruiser.

He saw his colleagues attempting to speak with Mr. Lewis, who walked away towards a garage. The officer joined the gathering. He was present when the accused, upon being arrested, spun away and tried to push through him. The officer pushed back and tried to grab him. All of them ended up on the ground. P.C. Johnson called for back-up. He heard P.C. Craig telling the defendant to stop trying to get his gun. In response, P.C. Johnson tried to disorient Mr. Lewis by pushing his head away. He saw P.C. Craig hit the accused a couple of times. He saw his colleague’s vest come off. [ 31 ] P.C.

Johnson said he was able to get control of the accused’s right arm, while P.C. Doyle held his legs. He gave his handcuffs to P.C. Doyle, who put them on their detainee. They found a boxcutter on the ground. Back at the station, P.C. Johnson prepared an injury report. The Defendant’s Evidence [ 32 ] Mr. Lewis is 35 years old. He has 2 children. Following this incident, he was unable to perform his work in heating and air conditioning because of the injury to his leg. He lost his job.

On September 8, he says he was unaware there was a warrant for his arrest for failure to pay restitution in full as a term of probation. [ 33 ] Mr. Lewis testified that he told the bus driver he had to get to Bellamy Rd. on time in order to catch a go-train for work. He believed Mr. Owen was driving too slowly on purpose. He said the driver had made him late, as well, the week before. He concedes he has had conflict with bus drivers in the past. [ 34 ] The defendant said the complainant was rude to him. He agrees he became increasingly agitated, but says it was because of the standard answers the driver gave him.

He said he told Mr. Owen he deserved to be punched in the face, but denied threatening him. He recalls the driver stopping the bus and announcing it was out of service. [ 35 ] Mr. Lewis got out to get some change at the kiosk. He confronted the complainant about whether he thought it was ok to do what he was doing. [ 36 ] Later, while walking on Kingston Rd., he did not stop for the police who shouted at him to do so. He felt they could talk to him from the cruiser as he kept moving. They got out. He said he eventually gave P.C. Craig his license.

He knew the officer would run his name but said he had no reason to believe he was in trouble. [ 37 ] Mr. Lewis told the court that when the officer returned from checking his name, he did not tell him there was a warrant for his arrest, but believes he heard him instead say he was being arrested because of an ‘N1’. He told P.C. Craig that he knew he was going to be handcuffed and offered his hand. He testified that the officer pulled and then shoved him. He said he had no idea why he was being handcuffed. [ 38 ] He told the court he only struggled after P.C.

Craig tried to use an ‘arm bar’ procedure to pull him to the ground by using his arm and leg to take him down. When the officer put his full body weight on him he felt his left leg pop. At that point, he said he was in too much pain to know what the other two officers were doing. He denies reaching for the officer’s gun, but recalls being accused of touching it. He was punched twice on his left cheek while his right hand was cuffed. [ 39 ] Mr. Lewis says he only learned of the breach of probation during these proceedings.

On the evidence, I find his explanation for not being aware of the restitution breach muddled, nor do I accept his evidence that he believed he had already served a sentence for it. Without more, I view his evidence in this regard as contrived. Questions of Credibility The Threat [ 40 ] Mr. Lewis’s behaviour on the bus need be seen in context. On the evidence, I draw the inference that the frustration and animus on display in the video had developed over time. In this regard, he has had conflict with bus drivers on previous occasions over the issue of making him late.

On Sept. 8, the agitation and aggression seen in repeated approaches to the driver were intimidating. In fact, the defendant can be seen taking a swing at the complainant while standing close to him. He continued to express his anger in the kiosk. In his dealings with the police, that anger did not abate. [ 41 ] I found Mr. Owen to have testified in a straightforward manner without embellishment. His description of the incident was milder than was apparent in the video. He was prepared to give the benefit of the doubt on the first threat, but was clear that he was threatened with violence on the second.

I accept his recall of the words used by the accused and that they caused him to be in fear of an assault. He acted reasonably in contacting management. [ 42 ] On this evidence, I reject the defendant’s testimony that he did not intend to threaten the complainant. The aggression, the repeated approaches and the swing of his arm support the inference of a build-up of anger leading to the threat. I am not left in reasonable doubt by the accused’s evidence that he merely implied, but did not intend either a threat or that it be taken seriously. Assault Resist Arrest [ 43 ] On the evidence, I accept that P.C.

Craig had an open mind when he approached the accused, particularly in light of the

complainant’s uncertainty about making a criminal complaint. He was right in attempting to speak to Mr. Lewis about his version of events before deciding what to do. [ 44 ] The defendant’s hostility complicated the officer’s efforts. P.C. Craig showed both forbearance and persistence. He was successful in calming the situation and in getting Mr. Lewis to explain his frustration. I also accept that the officer was prepared to deal with the complaint by way of a caution, subject to there being no warrant for the accused’s arrest. [ 45 ] Mr. Lewis testified that when P.C.

Craig returned from what he knew to be a CIPC check, he said to him, without prompting, that he knew he was to be cuffed and held out his hand. This permits the inferences that he was aware he was in breach of a term of probation and that the officer informed him of the outstanding warrant. [ 46 ] P.C. Craig was patient in his dealings with the accused. He explained each step. There was a lawful basis for the arrest. In the circumstances, I don’t accept that the officer chose to take down his detainee with force while keeping him in the dark about the reasons.

Rather, I infer that the still-agitated defendant resisted being detained while determined to get to work. I am not left in reasonable doubt in this regard by Mr. Lewis’s testimony. [ 47 ] Where I am left in reasonable doubt is in relation to whether the accused wilfully attempted to take P.C. Craig’s gun from his holster. The ensuing struggle happened quickly. The injury to the defendant’s Achilles tendon left him in pain and likely distracted. Mr. Lewis resisted with force but was subdued by three large officers. He was almost able to pull off P.C. Craig’s vest.

It is probable he was pulling on the officer’s holster, as well, in the course of the struggle. However, I am uncertain on all the evidence that the defendant did so with the necessary focus intending to disarm the officer. [ 48 ] With regard to Mr. Lewis’s obligation to make full restitution of $1000, he testified that he made an initial payment of $150, but none thereafter. He told the court it was too expensive to return to Cobourg where he was to make further payments. He transferred his probation to Toronto but said he lost his job. As noted earlier, he thought he might have served time in lieu of payment.

His evidence was contradictory and not believable. I am not left in reasonable doubt that he was aware he failed to meet his obligation under this term of probation. [ 49 ] In the result, I am satisfied that, but for the count of Attempt to Take Weapon from Peace Officer, the Crown has proven the essential elements of the offences. There will be findings of guilt on Threaten Bodily Harm, Assault Resist Arrest and Fail to Comply with Probation. Released: August 31, 2017 Signed: “Justice L. Feldman”