Court File and Parties

COURT FILE NO.: CR-17-85 DATE: 2019/02/14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Rosemary Levett

Counsel: Matthew Collins, Counsel for the Crown William Webber, Counsel for the Accused

HEARD: January 7, 8 and 9, 2019

REASONS FOR JUDGMENT

Leroy, J.

Introduction

[1] Ms. Levett is charged with having administered a noxious substance, namely the sleep aid Zopiclone, to Nora Wara, intending to aggrieve or annoy her, contrary to subsection 245 (b) of the Criminal Code. The issue is whether having regard to the totality of the evidence, the Crown has proven beyond reasonable doubt that the Zopiclone tablet was ever in Ms. Wara’s mouth and if it was, was it Rosemary Levett who administered it. The defence elected to not call evidence. The defence acknowledges that if the Court is satisfied Ms. Levett “spiked” Ms. Wara’s beer with a Zopiclone tablet, the essential elements of the offence are made out.

[2] The witnesses for the Crown were the investigating officer - Greg Sadler, the complainant - Nora Wara and the forensic toxicologist - Christina Lamparter. Ms. Lamparter confirmed that Zopiclone and alcohol act as central nervous system suppressants so that interacting the two would tend to enhance the effect of the other. She confirmed that Zopiclone has a bitter taste.

The Narrative

[3] On February 16, 2017, the complainant and accused were neighbours with a common property boundary, long term acquaintances and perhaps familiar friends. Both are in their mid-fifties and live alone. Ms. Wara was unable to provide Ms. Levett’s surname to Officer Sadler. On cross-examination at trial, she said she knew what it was, but was unsure about pronunciation and did not want to mispronounce it for the officer.

[4] Ms. Wara said they had known each other for sixteen years and the accused visited her often, upwards of two or three times daily for drinks and cards. She said the familiarity got to the point that Ms. Levett often entered Ms. Wara’s home without knocking. As Ms. Wara does not drive, she asked Ms. Levett to drive her to the beer store from time to time. They communicated by phone and texting.

[5] Ms. Wara told Officer Sadler she had been friends with Ms. Levett for five years and Ms. Levett visited her upwards of three or four times daily. During preliminary testimony, she said Ms. Levett visited once a day or every other day. Ms. Wara explained the discrepancies. Prior to moving to Ottawa for a year, Ms. Levett visited three to four times daily. The number of visits declined after the return to Iroquois in January 2016.

[6] There was some history to their relationship. They engaged in a hedge dispute approximately ten years ago when Ms. Wara threatened to torch the hedge if Ms. Levett failed to maintain both sides. Ms. Wara said it was an idle threat.

[7] Ms. Wara said she entered the Levett home one time within a year of February 2017. She accompanied a workplace acquaintance who was looking to buy. She denied taking any of Ms. Levett’s medications on that occasion.

[8] On February 15, 2017, Ms. Wara acquired a fresh case of Carling Light. She invited Ms. Levett over for drinks, but Ms. Levett was busy and declined. The invitation was to the point that “the beers were flying – come over.”

[9] Ms. Wara is on ODSP, but cleans homes for extra income. She attended to home cleaning duties during the morning of February16, finishing by 11:00 a.m. She returned home to the first beer of the day. This was usual practice. She recalls that after consuming one or two beers, she received a text from the accused enquiring about whether the beer was flying. Ms. Wara said that after answering in the affirmative, Ms. Levett arrived shortly after.

[10] Ms. Wara said that Ms. Levett told her she had been shovelling her driveway and expressed dismay as to why the neighbours shovelled Ms. Wara’s drive and not hers. After Ms. Wara explained that she had shovelled the neighbour’s the day or so before and this was only reciprocation, Ms. Levett moved on to Ms. Levett’s attire which she said was designed to excite a male neighbour. Ms. Wara confirmed Ms. Levett was wearing winter gloves on arrival.

[11] Ms. Levett brought a cup of tea with her. They sat at the kitchen table. Ms. Wara was nearly finished the beer she was drinking when Ms. Levett arrived.

[12] The picture depicted by Ms. Wara is that Ms. Levett entered the Wara home, they exchanged salutations, Ms. Levett sat down at the table with her tea mug and gloves and Ms. Wara attended to getting a new beer.

[13] Ms. Wara described a beer-drinking practice she follows. She said she leaves a mouthful in the current bottle while she collects the next full bottle from the case. At the time, she was drinking on average twelve beers daily. The case with the full beer was placed contiguous to the kitchen behind a partition wall within three feet of the distal edge of this wall. The partition wall obstructed sight lines between the kitchen table and the beer case. After opening the fresh bottle and discarding the cap, Ms. Wara returned with the fresh bottle to the kitchen table to finish the nearly empty bottle.

[14] Ms. Wara said the time lapse in the sight line obstruction involved in collecting the full beer was seconds, maximum one minute. When Ms. Wara called 911 to report this matter, she told the operator she left Ms. Levett in the kitchen while Ms. Wara went to the bathroom. She said she has no recall of going to the bathroom.

[15] Ms. Wara said she set the full beer on the table, remained standing, picked up the nearly empty bottle and quaffed the balance. She said the content tasted like poison and the beer was foaming. This was a new taste to her and she discharged the content of her mouth into a floor cold air grate.

[16] In response to questions about the decision to discharge the content of her mouth into the cold air duct as opposed to the sink which was closer, she said if she spit into the sink the evidence would disappear down the drain. Ms. Wara explained how she had another unrelated experience with contaminated beer that informed her decision to discharge the contents into the duct. She said she knew the cold air duct was contained so it would preserve the evidence.

[17] Ms. Wara illustrated the body motion involved in the rotation from the table to the grate two ways. The first time, while sitting in the witness box, she rotated to the left. The second time, after looking at slide 12, while standing, rotated to the right. The slide 12 tableau made it obvious that if she did spit into the grate, the rotation had to be to the right.

[18] The grate appears to be one foot square. When this happened, Ms. Wara was standing by the kitchen table approximately three feet from the grate. It is her evidence that she was able to discharge the content of her mouth cleanly, without splatter through the grate into the ducting.

[19] Ms. Wara said she assumed that the foreign taste was the result of defective bottling by the beer company. Ms. Wara said she collected the beer case and began to call the beer company. She said Ms. Levett asked her what she was doing and why she was calling the beer company to which Ms. Wara replied – there is something in my beer – I am going to sue them. Ms. Wara agreed that it is possible she said “there is time for everyone, this is mine. I am going for it.”

[20] Ms. Wara said that she would never sue the beer company – the declaration of intention to sue was just something that came out of her mouth.

[21] She said the purpose in calling the beer company was to learn the purpose of the pill as she was worried about mixing medications. On cross-examination, Ms. Wara said her purpose in calling the beer company was to alert the beer company to employee sabotage.

[22] Ms. Wara said she retrieved the pill from the bottom of the cold air duct while she was on the phone with the beer company representative. In the course of that conversation, Ms. Wara said she learned the bottling date for her case of beer and that if the pill had been inserted during bottling or before it would have totally dissolved.

[23] Ms. Wara said that she removed the pill from the duct with the paper towel shown in slide 11 and placed them on the counter. She said that at some point, she observed Ms. Levett pressing down on the pill with her thumb. Ms. Wara concluded Ms. Levett was trying to crush the pill. Ms. Wara instructed Ms. Levitt to desist and elbowed her out of range. Ms. Wara placed the paper towel with the pill in the cupboard with the empty beer bottle and resumed their visit sitting at the kitchen table.

[24] The photographs of the pill in the paper towel and the bottom of the ducting may or may not be consistent with Ms. Wara’s recounting of events. There is considerable debris attached to the towel. Officer Sadler was surprised by the cleanliness of the duct when he viewed it. The photograph he took of the duct may or may not suggest that a mouthful of beer had been spat into the duct cavity and wiped up within a few hours of his inspection.

[25] Officer Sadler did not note whether the paper towel was damp or dry. The photograph does not illuminate.

[26] Ms. Wara recounted that they consumed two beers together. Ms. Levett opened the beers, poured half in her own cup and gave the balance to Ms. Wara.

[27] Ms. Wara recounted observations of weird behaviour on Ms. Levett’s part after they resumed drinking beer. She said that Ms. Levett asked Ms. Wara if she was feeling tired. She suggested that they turn the fireplace in the next room on. She asked if Ms. Wara was going to lay down.

[28] By this time, Ms. Wara concluded Ms. Levett had placed the pill in her beer bottle. She perceived that Ms. Levett’s agenda was to absent Ms. Wara from the kitchen so Ms. Levett could retrieve the pill. She said she resolved to disregard Ms. Levett’s efforts at distraction and remain in the kitchen.

[29] She said Ms. Levett persisted. Ms. Levett alerted Ms. Wara to the presence of someone walking by the house and suggested Ms. Wara should check it out. Ms. Levett said she heard the cats fighting. They were not. Ms. Levett said she heard water leaking upstairs. Ms. Wara did not budge. She said Ms. Levett asked her more than once whether she needed to urinate.

[30] Ms. Wara said she asked Ms. Levett to leave as it was time for her nap. She said that Ms. Levett offered to stay while Ms. Wara napped. Ms. Levett went to the downstairs washroom and called Ms. Wara in to show that the toilet was overflowing. On inspection Ms. Wara said the toilet was not overflowing; rather it appeared as if Ms. Levett had sprinkled water around the toilet to give the suggestion of a water spill. Ms. Wara said she kept her body between Ms. Levett and the pill through this exchange.

[31] Ms. Wara said, she then told Ms. Levett to go home and she did.

[32] Ms. Wara ran a bath. On her return downstairs sixty to ninety minutes later, she said Ms. Levett was at the door with cards and a bottle of wine. She said Ms. Levett told her she had been talking with her daughter who instructed her to secure the pill. Ms. Wara moved in the direction of the kitchen cupboard so Ms. Wara slammed the door and told Ms. Levett to get the fuck out.

[33] Ms. Wara said she called her nephew after this second visit to alert him that Ms. Levett had spiked her drink. By then, she had consumed seven or eight beers. She said he instructed her to call the police. She said Ms. Levett returned again with a blue pill bottle while she was talking with the nephew. Ms. Wara said she did not permit entry this time and told Ms. Levett to leave or she would call the police which she did after completing the call with the nephew.

[34] Ms. Wara, who does not drive, acknowledged driving the nephew’s truck into the ditch twice over Christmas 2016 while she was drinking. She denied an accident in preliminary testimony. She distinguished accident from misjudgment.

[35] Ms. Levett sent two texts to Ms. Wara. The first at 3:14: Crying my guts out. I would never Nora. My heart hurts so much. The second at 3:40: The bottle was open. I did not have my gloves off - are you setting me up – what the hell Nora.

[36] The toxicology screen at the hospital that day was negative for Zopiclone and positive for alcohol. Ms. Wara confirmed she did not experience any symptoms.

[37] The general toxicology screen of the remnant liquid in the beer bottle at the Centre of Forensics Science in December 2017 was negative for Zopiclone. Dr. Lamparter confirmed that if Zopiclone was in the liquid in February 2017 it would have degraded to the point of disappearance over the time interval.

[38] There was a curious exchange on cross-examination. Initially, Ms. Wara said that she no longer cleans houses and she never leaves the house citing anxiety issues. She was asked about house cleaning for Ms. Cardinal. She then reversed the first answer and confirmed she continues to clean houses to this day. She agreed she has access to a number of homes. She agreed she could have told Ms. Levett that she used to steal Ms. Cardinal’s medication citing Ms. Cardinal’s drug plan and her capacity to buy more. Ms. Wara denied having actually stolen medications from Ms. Cardinal.

[39] Ms. Wara confirmed that Ms. Levett had offered to give Ms. Wara a sleep aid in the past when Ms. Wara was going through a difficult time in her life and was not sleeping well. Ms. Wara said she declined the offer citing concern for effects of medication interactions. She said her only prescription is Adelade which she takes to manage blood pressure.

[40] Officer Sadler visited Ms. Levett after sending Ms. Wara to the hospital, taking the pictures and securing the pill remnant and the nearly empty bottle. Ms. Levett was cooperative. Ms. Levett confirmed she attended at Ms. Wara’s invitation, entered and was just removing her gloves when Ms. Wara took a swig and said now it is my time to get some money. Ms. Wara called her nephew. Ms. Wara would not show Ms. Levett the item that was causing the commotion. Ms. Wara instructed Ms. Levett to leave and she did.

[41] Ms. Levett told Constable Sadler that she returned at 2:50 and Ms. Wara refused to show the item to Ms. Levett. Ms. Levett suspected she was being set up. She said Ms. Wara consumed three beers in her presence. Ms. Levett denied consuming any beer that day. She disclosed that Ms. Wara loves beer, grass and cocaine and there are always medications on her table. She said she had not seen Ms. Wara for six months before this day.

[42] Ms. Levett disclosed on the first prompt that her medications include Celebrex and aspirin. When asked if there was anything else, she disclosed a Zopiclone prescription describing it as a white pill prescribed by Dr. Holla and showed Officer Sadler an empty pill bottle which he did not inspect.

[43] Ms. Levett confirmed visiting the Wara bathroom, that the water was running, that the meter man walked by when she was in the Wara house and said something about the cats banging.

[44] Officer Sadler asked Ms. Levett if she put anything in Ms. Wara’s drink. Ms. Levett said she did not.

[45] Ms. Lamparter confirmed that Zopiclone comes in two dosages and shapes, round white and blue oval. The blue pill dosage is 7.5 milligrams and the white pill is five milligrams. She said that in the normal case one would begin with the lowest dose – 3.5 by splitting the blue pill.

[46] The pill depicted in slide 15 is a fraction of a blue pill.

Submissions

Crown

[47] The Wara narrative is cohesive. She was not contradicted on any internal component of the narrative. It is the only evidence we have. Ms. Wara was open, straightforward and candid. She has no motive to frame the accused. The timing of the discovery is consistent with Ms. Levett’s guilt.

[48] Ms. Wara’s memory seems intact. She recalled the texting messages without prompting. Her description of the events of the day, notwithstanding having consumed seven beers was detailed. She recalled Ms. Levett’s bad mood on arrival, her beer consumption idiosyncrasies, Ms. Levett’s attire and comments about the neighbour, the particulars of intake and expurgation, the conversation with the beer company representative, her depiction of Ms. Levett’s persistent efforts to destroy or secure the pill (attempt to crush the pill, the efforts at distraction – water leaking, turning the fireplace on, the person crossing the yard, offering to stand guard while Ms. Wara takes her nap, asking Ms. Wara whether she has to use the washroom), the sequence of Ms. Levett’s reprise attendances.

[49] Ms. Wara expresses aversion to mingling substances.

[50] Ms. Wara acknowledged factual issues directed at sincerity - drinking and driving over the preceding Christmas, the declarations as to suing the beer company, torching the hedge and stealing medications from a client. She did not pick and choose. There is no evidence of a motive or animus. They were friends and that Ms. Levett tried to get her to drink Zopiclone is hurtful. She called her nephew to apprise him of what happened in case she became symptomatic.

[51] Ms. Wara described the taste as poison. Ms. Lamparter described the taste of Zopiclone as bitter.

[52] Ms. Levett initially withheld the information about her Zopiclone prescription. Ms. Levett confirmed her presence when Ms. Wara discharged the content of her mouth.

Defence

[53] The first issue is whether the Zopiclone pill was ever in Ms. Wara’s mouth. If it was, was it Ms. Levett who administered?

[54] Ms. Levett did not hide the Zopiclone prescription from Officer Sadler.

[55] There is no apparent motive either way.

[56] The verisimilitude of Ms. Wara’s narrative is not as tight as the Crown suggests. If they were so familiar with one another, how could it be that Ms. Wara was unable to provide Ms. Levett’s surname to the police? Why would she indignantly expostulate concern for mixing medications when she drank twelve beers daily? That is mixing substances. Ms. Wara had access to third party medications and was unable to deny that she may have boasted to Ms. Levett about stealing medication from Ms. Cardinal in the context Ms. Cardinal’s medication plan had deep pockets.

[57] The inconsistency between the 911 call representation about having gone to the washroom during the interval between the penultimate swig and refreshing her beer and the very brief interlude of seconds to one minute for the refill interlude recounted at trial is unexplained. Defence submits this is an inconsistency about something at the foundation of her narrative. If what she told the 911 operator was an accurate recitation of events, why doesn’t she remember it. It is easy to remember the truth. The Crown submits this is an inconsistency about a minor detail about which nothing turns.

[58] The evidence as regards whether the content of Ms.Wara’s mouth was spit through the grate or that the discolouration evident in the photograph of the bottom of the duct is unclear. Ms. Wara said the dark area of the duct is where the paper towel wiped the duct when she collected the pill remnant. Constable Sadler said he was surprised about how clean duct was and the discolouration in the photograph depicted the discolouration as an indentation. He did not say he observed splatter.

[59] Her explanation for choosing in the moment to spit into the grate was that without having any idea of what caused the bitter taste, she wanted to preserve evidence. Ms. Wara then let the evidence sit in the duct while she said she called the Beer company. Her explanation for neglecting to collect the evidence was that she wanted to get through the introductions involved in the complaint before protecting the pill and the liquid.

[60] When Constable Sadler suggested that Ms. Wara should go to the hospital she declared, without knowing anything about the partially dissolved pill, and how it acted that they would not find anything because she had been drinking.

[61] As for the post offence conduct, Mr. Webber offered that Ms. Levett’s actions were not inconsistent with innocence. She wanted to know what Ms. Wara had in her hand. The texting is ambivalent evidence. She told Constable Sadler about the meter man, the cat fighting and the leaky plumbing. She wasn’t trying to distract Sadler.

Base Principles

[62] The basic premise which is fundamental to all criminal trials is that Ms. Levett is presumed innocent, unless and until Crown counsel proves her guilt beyond reasonable doubt. This presumption stays with her throughout the trial. The burden of proof is always on the Crown regardless of what evidence defence provides, fails to provide or chooses not to provide. Ms. Levett does not have to prove anything. I have to determine whether all the evidence has proved the offence beyond a reasonable doubt.

[63] The standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence. The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation.

[64] A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty, R. v. Lifchus, 118 C.C.C. (3d) 1 (S.C.C.). Proof beyond reasonable doubt falls closer to sound deduction than to proof on a balance of probabilities.

Approach to credibility and reliability of testimony

[65] There are four potential sources of error when a witness describes events she claims to have observed or experienced: perception; memory; communication; and sincerity.

[66] This is a case concerning sincerity and application of the presumption of innocence.

[67] Where, as here, the case of the Crown is wholly dependent upon the testimony of the complainant, the credibility and reliability of the complainant’s evidence is to be tested in the light of all the other evidence presented.

[68] The assessment of evidence includes consideration of benchmarks of reliability and credibility such as the inherent reasonableness of testimony, internal consistency, uncertainties in respect to details, plausibility and myriad considerations involving a witness’ objectivity, ability to remember and communicate, consistency with other evidence and availability of other sources of information.

[69] The assessment of the inherent reasonableness of testimony involves consideration of the number and substance of related corroborative facts as well as the number and substance of related different facts and the diversity of related facts.

[70] I can believe some, none or all of a witness’ testimony.

[71] The fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate. The absence of any reason to make a false allegation is a factor which triers of fact, using their common sense, will and should consider in assessing a witness' credibility. What must be avoided is any suggestion that the accused has an onus to demonstrate that a complainant had a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth – R. v. Batte, 49 O.R. (3d) 321, [2000] O.J. No. 2184.

[72] In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond the reasonable doubt standard. A gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown may need to negative these reasonable possibilities, but does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[73] Instruction about circumstantial evidence alerts the trier to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence. Telling the trier that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.

[74] I must decide whether the evidence of whether there was a Zopiclone tablet in the final swig and whether Ms. Levett inserted it, when considered in light of human experience and the evidence as a whole and the absence of evidence, excludes all reasonable inferences other than guilt.

[75] While there is no obligation upon an accused to demonstrate the existence of an exculpatory hypothesis or other rational explanation other than guilt, it does not reverse the burden of proof upon the Crown to ask whether such explanations, as may be pointed to, amount to nothing more than speculation, conjecture or irrational inferences.

Discussion and Conclusion

[76] The issue is whether the Crown case displaced the presumption of innocence. Can I accept beyond reasonable doubt that Rosemary Levett placed a Zopiclone tablet in Ms. Wara’s beer bottle?

[77] I agree with Mr. Collin’s depiction of Ms. Wara’s testimonial demeanor as candid on collateral issues. She acknowledged drinking and driving, driving without a licence, the ditching accidents, the heavy drinking, declarations about suing the beer company, torching the hedge and stealing medications from a client.

[78] That said, she denied being involved in the accidents over Christmas during the preliminary enquiry. She dismissed this as a characterization issue; driving a truck after drinking without a licence into a ditch twice was not an accident in her mind.

[79] Ms. Wara’s post-incident behaviour raises circumstantial questions about the veracity of her narrative.

[80] Ms. Wara’s purpose in contacting the beer company was to initiate a claim for compensation. She agreed to declaring to Ms. Levett at the time that everyone has their time, this was her time and she was going to collect. In direct, she said the purpose in calling the beer company was to identify the identity and purpose of the pill as she was worried about mixing medications. On cross-examination, Ms. Wara said her purpose in calling the beer company was to alert the beer company to employee sabotage.

[81] There are both nefarious and benign explanations for Ms. Wara’s assertion the toxicology screen at the hospital would prove negative. One could be as Mr. Collins asserted, that Ms. Wara is unsophisticated and believed that the alcohol she consumed would obscure the measure of whatever she thought was in the tablet. Another explanation is that she could have known that the toxicology screen would prove negative because the pill had never been in her mouth.

[82] Ms. Wara attempted to oath-help by asserting more than one time that she had an aversion to mixing medications. That was a reason for thinking so quickly of how to preserve evidence, for calling the beer company and police. That aversion did not interfere with daily consumption of twelve beers. She could not deny having revealed to Ms. Levett that she stole medications from a house cleaning client.

[83] I am not confident in the veracity of Ms. Wara’s explanation for leaving the discharge in the grate until after calling the beer company which she said was to get through the intake first. That thought process was incongruent with the priority she placed on preservation of evidence when she said she first tasted the bitterness in the beer. It begs the question, if Ms. Wara did not know what she experienced, why would she not want to know immediately what had been in her mouth. That thought process, the choice to not take the natural action raises concern she knew what had been in her mouth and raises concern over who administered the Zopiclone.

[84] Ms. Wara’s explanation for the 2.5 hour delay in calling the police was that she did not want to cause trouble for Ms. Levett as Ms. Levett is a hurt lady who had disclosed many private matters to Ms. Wara. That was disingenuous. Ms. Wara recounted a narrative of events beginning with the call to the beer company, the evictions and the subterfuge she attributed to Ms. Levett, all of which pointed the finger at Levett.

[85] As Mr. Webber said, the coincidence of Ms. Levett’s Zopiclone prescription with the tablet in the paper towel is suspicious. It is no more than that. The protagonists were friends and acquaintances for a long time. Ms. Wara acknowledged that Ms. Levett had offered to give some to Ms. Wara. Ms. Wara said she declined citing concern for mixing medications and preference for self-medicating with beer. Maybe that is true and maybe it is not.

[86] Ms. Wara’s depiction of the initial encounter suggests that Ms. Levett was in the process of removing her coat and mitts when Ms. Wara went to get the refill. Until that very brief moment in time, Ms. Wara had exclusive control of the tableau that was her home.

[87] There is no evidence that attaches Ms. Levett to the blue version as opposed to the white version. There could be many reasons for failing to mention the Zopiclone prescription when Constable Sadler asked her about her medication list. Zopiclone is a sleep aid ingested on an unscheduled basis. She showed Constable Sadler an empty container. If her supply was exhausted and Zopiclone was not part of her experience at the time, it is not unreasonable that she would innocently fail to mention it.

[88] The only real factual issue in this trial is if there was a Zopiclone tablet in Ms. Wara’s beer and mouth, who put it there. The Crown case rests entirely on the sincerity/veracity/credibility of the complainant. I am not confident in Ms. Wara’s sincerity. Too many incongruities as noted. If she is less than persuasive about how the tablet made it into her beer bottle then the whole after story is similarly fraught. The only independent evidence of post-event conduct is found in the texts. Ms. Levett’s query regarding suspicion of a set up was spontaneous in the moment consistent with the denial communicated to Constable Sadler.

[89] For these reasons, in my view, the Crown has not displaced the presumption of innocence and Ms. Levett is acquitted of the charge.

The Honourable Mr. Justice Rick Leroy Released: February 14, 2019