Court File and Parties

COURT FILE NO.: 7854/18 DATE: 2019-01-17 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Heidi Mitchell, Counsel for the Crown

- and -

GARY JOSEPH LEVAR Kenneth G. Walker, Counsel for the Defendant Defendant

HEARD: October 15-19 and 22-25, 2018

GAREAU J.

REASONS FOR JUDGMENT

[1] This matter proceeded to trial over nine days in October 2018.

[2] The accused was charged with 16 counts set out in an indictment dated April 23, 2018.

[3] I provided oral reasons in court on October 25, 2018. Those oral reasons were transcribed and made available to counsel. I dismissed 14 of the 16 counts in the indictment. The Crown acknowledged that Count 2 in the indictment had not been proven beyond a reasonable doubt and accordingly that count was dismissed at the Crown’s request. I found the accused guilty of Count 16 in the indictment, being a breach of his recognizance, and provided full reasons as to why the accused was convicted of that offence. With respect to Count 16 in the indictment, I sentenced Mr. Levar to 60 days incarceration with a credit for 40 days pre-trial custody, applying the enhanced credit.

[4] In my oral reasons delivered on October 25, 2018, I indicated that I would provide fuller written reasons which these reasons are designed to do.

[5] In my oral reasons delivered on October 25, 2018, I made several findings and observations, some of which are worth repeating in these reasons to provide context in this matter and are as follows:

This case is as much about drugs as it is about violence. The excessive consumption of drugs clearly calls into question the reliability of witnesses’ testimony; the ability of a witness to accurately recall and account for events which they have witnessed and experienced.

The witnesses who testified about what did or did not occur at the Levar home on September 29 and September 30, 2017, and in the case of Paul Quesnel, what occurred afterwards, have brought this fact home as they were all high on drugs, which has greatly affected the quality of the evidence that they have given before the court.

The case before the court is about the assessment of the credibility of the witnesses who have testified about the events of September 29th and 30th and October 1, 2017. It is about the believability of their evidence and the reliability of their evidence that they have given to the court. The case before the court is about whether, based on the totality of the evidence the court has heard, whether the court is convinced beyond a reasonable doubt that the Crown has established the essential elements in the charges against Gary Levar as set out in Counts 1 and Counts 3 to 16 inclusive of the indictment, dated April 23, 2018.

The defence suggests that the complainant, K.L., has a motive to fabricate her evidence. The Crown suggests that the accused, Gary Levar, and the witnesses called as part of his defence, Paul Quesnel and Vanessa McKinnon, have motives to fabricate. In my view, all of these witnesses have motives to fabricate their evidence to suit their own purposes. K.L. may want to get back at Gary Levar for no longer wanting her in his home and his unwillingness to provide her with drugs or money anymore. She may wish to extract revenge against Mr. Levar by having him arrested, out of his home, and robbed. Paul Quesnel may wish to fabricate his evidence in order to receive payments in his canteen account at the Algoma Treatment and Remand Centre. Mr. Quesnel may be being paid off by Mr. Levar for his evidence and there may be an underlying financial arrangement between them. Vanessa McKinnon and Gary Levar are friends. Ms. McKinnon has acknowledged that Mr. Levar has provided her with shelter, with free rent, with money and drugs. Perhaps Ms. McKinnon is reciprocating for this kindness by providing favourable evidence for Mr. Levar at the trial. Obviously, Gary Levar has the motive of saving his own skin and trying to avoid a conviction for serious criminal offences and is perhaps tailoring his evidence to make this occur.

All of these major witnesses, as to the events of September 29, 2017 and the days following, have a motive to fabricate their evidence. They were all heavily involved in the consumption of drugs.

On the totality of the evidence before me, I am not sure what happened at 320 Patrick Street the night of September 29th and 30th, 2017.

Except for the evidence provided by the officers of the Sault Area Police Services, the forensic evidence and the evidence from Christine Simpson, all the other evidence, including the evidence of the complainant, K.L., and the evidence of the accused, Gary Levar, have frailties such that this evidence cannot be relied upon to achieve the level of certainty required to establish proof beyond a reasonable doubt. All of the witnesses as to the events of September 29th and 30th, 2017 were hopped up on drugs. They all had consumed at least cocaine and were all admittedly high on the evening in question. It is no wonder that the complainant went in and out of consciousness during the evening and can recall only part of what occurred that evening, or that Vanessa McKinnon cannot recall in detail the events on the night in question.

I am not sure what happened at the Levar residence on September 29th and 30th, 2017 with the certainty required to make findings of fact that would satisfy me that the Crown has proven the essential elements, in Count 1 and Counts 3 to 15 of the indictment, beyond a reasonable doubt.

THE EVIDENCE

Crown’s Case

[6] The Crown called as part of its case the Sault Ste. Marie Police officers that investigated this matter and executed a search warrant that ultimately seized various items from the home of Gary Levar at 320 Patrick Street, Sault Ste. Marie, Ontario. Constable Shaun Cyr is a 14-year veteran of the Sault Ste. Marie Police Services who is attached to the Forensic Identification Unit. He testified that he assisted in the execution of a search warrant at 320 Patrick Street, Sault Ste. Marie, Ontario. It was the evidence of Constable Cyr that he entered that residence on October 1, 2017 at 3:50 a.m. and took various photographs of the home, eventually submitting some items to the Centre of Forensic Sciences for analysis. Tab 1 of Exhibit 1 (photo book) are photographs that Constable Cyr took of the interior of the home at 320 Patrick Street and the items found in the home in various locations throughout the home. The items seized from the home were entered as Exhibits 4 to 16. Exhibit 17 is the evidence transfer sheet for items submitted to the Centre of Forensic Sciences which included a toilet tissue wipe from the complainant, a swab from a spear gun, black pants, hair fibres, and two oral swabs from the complainant and five skin swabs from the complainant.

[7] Detective Sergeant Derek Dewar also gave evidence for the Crown. He was called to the investigation on September 30, 2017 at 7:10 p.m. to attend at the Police Station, which he did in assisting in the taking of a video recorded statement from the complainant, K.L.. Sergeant Dewar testified that Ms. K.L. was crying, upset and appeared disheveled. He observed marks on Ms. K.L.’s hand and what to him looked like blood on the outside of Ms. K.L.’s pants. Ms. K.L. showed him marks on her thigh and upper chest. A video statement of Ms. K.L. was completed and search warrant obtained. Sergeant Dewar confirmed the evidence of Constable Cyr that at 3:50 hours on October 1, 2017 the search warrant was executed at the home of Gary Levar at 320 Patrick Street. Sergeant Dewar testified that at that time, Vanessa McKinnon was inside the Levar residence and that no one else was inside the home when the search warrant was executed.

[8] Detective Trevor Pluss is a four-year veteran of the Sault Ste. Marie Police Services. Detective Pluss was involved in the taking of a video statement from the complainant, K.L.. He testified that he first met K.L. when she attended at the Sault Ste. Marie Police Station on September 30, 2017 at 6:45 p.m. Detective Pluss described Ms. K.L. as emotional and crying. As to the complainant’s physical condition, it was the evidence of Detective Pluss that Ms. K.L.’s face and cheeks “had sores of some kind”, and that the hair on the back of her head was cut at various lengths. In cross-examination, Detective Pluss indicated that Ms. K.L. did not look uncomfortable in her shoulder area, that she did not seem “in agony” or that he noticed that she was bleeding in any way. After the video interview was completed, K.L. was transferred to the Sault Area Hospital Sexual Assault Centre. Detective Pluss was involved in the execution of the search warrant at 320 Patrick Street. He confirmed the evidence of Derek Dewar that inside the residence of Gary Levar was Vanessa McKinnon. It was the evidence of Detective Pluss that Ms. McKinnon indicated to him that she was visiting the Levar home and was there for the past couple of days. Vanessa McKinnon declined to make a statement to the Sault Ste. Marie Police according to the evidence of Detective Pluss.

[9] As indicated in the evidence of Detective Pluss, the complainant K.L. was taken to the Sault Ste. Marie Area Hospital for examination. Christine Simpson testified as to what she observed during the physical examination of K.L.. Ms. Simpson is a registered nurse with a specialty in sexual assault. She has been a nurse for over 20 years. It was the evidence of Christine Simpson that K.L. presented at the Sault Area Hospital on October 1, 2017 at 2230 hours and that she spent four hours with Ms. K.L. conducting a head to toe examination for trauma. It was the evidence of Ms. Simpson that Ms. K.L. presented as emotional, that she was crying, disheveled and curled up on the stretcher. A detailed description of what was observed by Ms. Simpson and what Ms. K.L. indicated to her is set out in a body mapping form which was entered as Exhibit 22. Ms. Simpson observed that K.L.’s tongue was red and ulcerated. Ms. Simpson also observed the following:

• Redness to buttocks;
• Redness to right knuckle area;
• Swelling to top of her hand;
• Redness to both knees;
• Scabbed area to right knee;
• Abrasion to her right leg;
• Deep brown red area on left shin;
• 2 x 5 cm lineal abrasion at the right rib area;
• Red swollen area to right wrist.

It was the observation of Ms. Simpson that the injuries to Ms. K.L. were recent. With respect to the body mapping form it was noted by Ms. Simpson that the notations of pain or discomfort are from comments by the patient and that they are subjective in nature. It was also noted by Ms. Simpson that any abnormality that the patient reports is noted on the body mapping form. Ms. Simpson also took photographs of Ms. K.L. while doing the head to toe examination. These photographs are at Exhibit 1, Tab 2. It was the evidence of Ms. Simpson that the photographs are not an accurate reflection of her observations, in that the injuries were more significant than observed in the photographs. Ms. Simpson did not amplify on this evidence or provide any details as to what injuries appeared worse to her. That was just a general comment made by her that was not explored further at the trial. Ms. Simpson testified that the complainant K.L. declined a vaginal or anal examination, which Ms. Simpsons described as an invasive exam. K.L. was discharged by the Sexual Assault Unit and returned to the Emergency Department at the Sault Area Hospital on October 2, 2017 at 1:15 a.m.

[10] As indicated earlier, various samples were taken to the Centre of Forensic Sciences. After a voir dire, Dr. Nathalie Anne Desrosiers was qualified as an expert on forensic toxicology. Dr. Desrosiers received her PhD in 2014 and has been employed as a toxicologist for the Centre of Forensic Sciences since 2015. Entered as Exhibit 24 is a toxicology report dated January 15, 2018 prepared by Dr. Desrosiers. Tested by her was a urine sample of the complainant and a Cherry Sprite bottle. In the urine, MDMA (which is Ecstasy or Molly) was detected. In the Cherry Sprite bottle, the drugs MDMA and cocaine were detected. Dr. Desrosiers acknowledged in her evidence that MDMA in high dosages can produce hallucinations, which could include misjudging or seeing things that are not there. As noted in the conclusion section of her report, effects that can occur after using MDMA/Ecstasy may include euphoria, increased risk-taking behaviour, and hallucinations. The effects of cocaine were noted to include excitation, euphoria, increased risk-taking behaviour, blurred vision and hallucinations. As noted by Dr. Desrosiers in the conclusion section of her report, “A ‘crash’ phase may follow a cocaine high during which time individuals can suffer from exhaustion and extreme fatigue”.

[11] After a brief voir dire, Tara Christine Brutzki was qualified as an expert in the area of bodily fluid identification and forensic DNA analysis, including the disposition, transfer and persistence of bodily fluids, DNA. Ms. Brutzki has been employed as a scientist with the Centre of Forensic Sciences since 2001. In her evidence, Ms. Brutzki provided a brief overview of DNA, which she described as “a set of instructions or blueprints for all living things”. The goal of DNA testing is to generate DNA profiles. Bodily fluid identification was described by Ms. Brutzki as “a series of tests or testing methodology that is used to determine if bodily fluids may be present or something”. This testing includes tests for blood, semen and saliva. Entered as Exhibit 19 was the report dated December 4, 2017 prepared by Ms. Brutzki. No bodily fluid testing was done for the oral swabs taken from K.L.. Similarly, no testing was done for the oral swabs taken from K.L.. Similarly, no testing was done on the Cherry Sprite bottle.

[12] The spear gun was examined for blood and no blood was found on the tip of the spear gun. When asked for possible explanations for this, Ms. Brutzki indicated that the following three explanations were possibilities:

1. That the spear gun was not used;
2. That the spear gun was used by did not draw blood;
3. That the spear gun punctured the skin so quickly that no blood was lodged on the tip of the spear gun.

Ms. Brutzki noted in cross-examination that the tests performed to find blood on the spear gun was “quite sensitive” meaning that the test can detect even a very little amount of blood, but, in this case, no blood at all was found on the tip of the spear gun.

[13] On the pants worn by K.L. and submitted for testing (Exhibit 16) a small amount of semen was detected on the crotch area of the pants. A comparable sample would be required to indicate whose DNA it is and that sample was not available to Ms. Brutzki at the time she prepared her December 4, 2017 report. A further report was prepared by Ms. Brutzki to deal with the comparable or reference DNA sample. This report is dated January 26, 2018 and was entered as Exhibit 20. Testing was performed to see whether the accused Gary Levar could be excluded as a contributor to the semen found on the crotch area of the pants. The results from this reference sample testing of the DNA on the crotch area of the pants is that it is estimated to be 31,000 times more likely to originate from K.L., Gary Levar, and one unknown individual than originating from K.L. and two unknown individuals unrelated to Gary Levar. In other words, the DNA results are more likely to be seen under a scenario where Gary Levar is part of that mixture, and it is 31,000 times more likely to be seen if Gary Levar is part of that mixture.

[14] As Ms. Brutzki indicated in her evidence to the court, the higher the number, the more support for the explanation that Gary Levar is part of the mixture in respect of the semen found on the crotch of the pants seized from K.L. (Exhibit 16). As Ms. Brutzki put it in her evidence, “so, 31,000 times still provides strong support that he is – that the DNA evidence, that he’s part of that mixture”. Ms. Brutzki acknowledged in her evidence that she could not say that one of those individuals contributed semen. Ms. Brutzki is also not able to date when the DNA was deposited by either three of the contributors. A hypothetical question or scenario was put to Mr. Brutzki by the defence whereby the pants were worn by another female and at that time there is interaction with Gary Levar and then the pants were worn by K.L. at some further point in time. Ms. Brutzki agreed “that this could account for the mixture of three individuals and the DNA results that we have in this case”. As to the 31,000 times ratio which is indicated in her report, Ms. Brutzki acknowledged that she has seen reports with ratios in the trillions or quadrillions, so much higher than we have in her report dated January 26, 2018.

[15] I will now outline the evidence that the complainant, K.L., provided to the court. Ms. K.L. was born on […], 1997. At the time of the alleged incident she was a drug addict, using crack cocaine and heroin. As she indicated in her evidence, “she was pretty bad into it”, and she acknowledged that she was high when she was at the residence of Gary Levar on September 29, 2017. Ms. K.L. testified that Gary Levar would provide her with drugs, that she would go to his home to get drugs, and that she would stay at his residence when she had no other place to stay. It was the evidence of Ms. K.L. that Vanessa McKinnon was doing the same thing she was. Ms. K.L. testified that she knew Vanessa McKinnon for “maybe a week” prior to September 29, 2017 but acknowledged that while she was in Mr. Levar’s bedroom, Vanessa McKinnon was present at all times.

[16] Ms. K.L.’s evidence is that she endured what can best be described as a night of torture and abuse at the hands of Gary Levar. It was the evidence of Ms. K.L. that Mr. Levar locked her in his room and accused her of stealing from him and switching his drugs for different drugs. Ms. K.L. described being hit by a bat repeatedly throughout the evening of September 29, 2017 and into September 30, 2017. Ms. K.L. testified that whenever he felt like it, Mr. Levar randomly hit her with a bat or with golf clubs. She testified that she begged Levar to stop but he hit her “very forcefully”. Ms. K.L. testified that she was hit with a golf club multiple times in the upper thigh, upper arms and upper shoulder area and that the blows to her were “excruciating”.

[17] Ms. K.L. describes being stabbed with a spear gun in her right leg above the knee. Ms. K.L. testified that the spear gun left a wound and that it was bleeding. Ms. K.L. indicated in her evidence that the area where she was stabbed with the spear gun “had a big bruise around it”.

[18] K.L. indicated to the court that Mr. Levar made her open a Sprite bottle and drink from it. She testified that after she drank from it, “it was a blur”, and, “I didn’t know what was going on”. The next thing Ms. K.L. remembered was sitting on a couch in the bedroom of Gary Levar at his home. Ms. K.L. identified the Sprite bottle (Exhibit 11) as the bottle which Gary Levar made her drink from. Ms. K.L. testified that, “the events after that are jumbled”. Ms. K.L. indicated that after she drank from the Sprite bottle, Gary Levar forced her to take MDMA (Molly) from a bag and chew it in her mouth. Ms. K.L. testified that she tried to spit it out but Gary Levar hit her with a bat on her shoulder so she had no choice but to swallow it. Ms. K.L. testified that this drug burnt her tongue and left blisters on her tongue and gums. Ms. K.L. indicated that she had never had this drug before and that after taking the drug, “I was feeling very out of it”.

[19] Ms. K.L. described in her evidence her loop nose ring being ripped out of her nose with a pair of pliers. It was the evidence of K.L. that Vanessa McKinnon participated in this and decided that this particular punishment should be meted out to her.

[20] Ms. K.L. recalled Gary Levar heating up a hammer with a candle on his bedside table in his bedroom and repeatedly trying to hit her hand with the hammer although she avoided this by moving her hand out of the way. Ms. K.L. testified that Gary Levar burnt her with a blow torch and she was left with “two significant burns on each of my breasts” and with multiple burns on her face and arms. Ms. K.L. testified that after she was burned that she had blisters in the area where she was burned.

[21] Ms. K.L. testified that incidents between the main events were “pretty blurry” for her. She testified that, “I just remember the main events – in between I passed out or was so out of it that I don’t remember”.

[22] Ms. K.L. testified that on one occasion when she was passed out, “pinned against the wall”, she woke up to find Gary Levar standing over her urinating on her head and face saying, “wake up, bitch”. She described that she was forced to “drink a red substance” and that she was told to pull her pants down and when she did, Gary Levar laughed at her. Ms. K.L. went unconscious at that point and woke to a Wieser’s bottle being tossed at her. In her evidence, Ms. K.L. indicated that at that point she was not sure what happened; that she remembered that she was on the ground for a while. Ms. K.L. remembers waking up with her knees on the ground and her torso on the bed bent over. She testified that Gary Levar was over her and was cutting her hair off with scissors. Her hair was in a bun and Ms. K.L. testified that Gary Levar cut the whole bun off. As she described, the back of her head “it was basically to the scalp at the back”.

[23] Ms. K.L. testified that she went unconscious and doesn’t remember what happened next but does recall waking up to a real loud bang which was the dropping of a skill saw at the end of the bed in Gary Levar’s bedroom. Ms. K.L. testified that Gary Levar grabbed her foot and pulled her toward the skill saw and positioned her hand under it. Ms. K.L. testified that the skill saw was on. K.L. testified that at that point she passed out, “but I woke up with all my limbs”, meaning that Gary Levar did not cut her with the skill saw.

[24] Ms. K.L. testified that at that point in time she passed out on the couch in the bedroom of Gary Levar. She woke up early in the morning without a shirt or bra on, but with her leggings on. Ms. K.L. testified that Gary Levar was sleeping naked on the bed in the bedroom and that Vanessa McKinnon was also in the bed, with her clothes on. Ms. K.L. testified that she passed out again, stating, “I went unconscious again. I am assuming it was the drugs.” When she woke up again it was around 4:00 p.m. on September 30, 2017. Gary Levar was downstairs at that point in time. Ms. K.L. went downstairs and sat on a chesterfield. Ms. K.L. describes her private parts as “sore”. As she testified she felt “different” when she sat on the chesterfield and “felt that my vagina was swollen”. Ms. K.L. testified that she had no recollection of any sexual encounter with Gary Levar during the evening of September 29, 2017 or on September 30, 2017. It was the evidence of K.L. that she believed that she had been sexually assaulted by Gary Levar who told her that, “I had a nice puss”.

[25] K.L. testified that she was not allowed by Gary Levar to go for a coffee with her sister. At one point she was left alone downstairs and overheard Gary Levar talking about where he was going to shoot her with the spear gun. It was the evidence of K.L. that she then grabbed her bag and went out the back door of Gary Levar’s residence at 320 Patrick Street. By the estimate of K.L., this was about 5:00 p.m. on September 30, 2017. Ms. K.L. testified that she then went to a bar to get a glass of water and then walked to the police station.

[26] In her evidence, K.L. confirmed her attendance at the Sault Ste. Marie Police Station and at the Sexual Assault Centre of the Sault Area Hospital. Ms. K.L. acknowledged that she did not complete a sexual assault kit at the hospital stating, “I was feeling disgusting and I didn’t want anyone looking at me”. K.L. testified that Gary Levar was using crack cocaine the night when all of this occurred but she could not tell if Levar was affected by the drugs. As she put it in her evidence, “for the most part everything was fine”.

[27] K.L. testified that she had cashed her Ontario Works cheque and had $300 with her on September 29, 2017. It was her evidence that Gary Levar took $200 from her and that she spent the balance of the money on drugs that night.

[28] K.L. described an incident which she states took place at the home of Gary Levar approximately two weeks prior to September 29, 2017. She testified that she went to Levar’s home to purchase drugs. Her evidence was that Gary Levar had money missing and thought that she had taken it. Ms. K.L. describes being tied up with duct tape by Gary Levar who bound her hands, knees and ankles together. Ms. K.L. testified that she was tied up for one hour and at one point Levar “scooped her up by the feet” and took her to the stove with the element on stating, “If you don’t tell me you’ll never get out of here”. Eventually, Gary Levar released K.L.. Although describing the incident as one where, “I have never been more scared in my life”, K.L. did not repeat this incident to the police when it occurred. She justified this action by stating, “You don’t call the police on people like Mr. Levar or something will happen to you”.

[29] In cross-examination, K.L. admitted to staying at Mr. Levar’s residence on a frequent basis and previously referring to him as a friend. Ms. K.L. admitted to the fact that she had a drug overdose at Mr. Levar’s home and that he called 911. Previously, Ms. K.L. indicated to the police that Gary Levar gave her CPR and had saved her life. In her evidence, K.L. acknowledged being aware that Gary Levar was on house arrest in September 2017. In her evidence Ms. K.L. acknowledged the events of the evening of September 29, 2017 were “blurry and vague” and that on several occasions she lost consciousness while at the home of Gary Levar. In her evidence K.L. acknowledged and agreed that Vanessa McKinnon would have been present throughout all the incidents and would have seen everything. Ms. K.L. denied the suggestion that she cut her own hair, went to Levar’s home “dope sick”, or that the whole thing is a concocted story that she and Paul Quesnel could rob the home of Gary Levar. In cross-examination K.L. denied knowing Paul Quesnel.

[30] During cross-examination various pictures in Exhibit 1, Tab 2, depicting her injuries were put to K.L.. She agreed to the suggestion put to her by defence counsel that photos 26 and 30 in Exhibit 1, Tab 2, show no bruising to her shoulder area and that photos 17, 18 and 26 do not depict burns on her arms. Ms. K.L. also agreed that the horizontal lines on her arms depicted in photos 23 and 24, Exhibit 1, Tab 2, were self-inflicted wounds.

Evidence of the Accused, Gary Levar

[31] The accused testified at the trial. This brings the principles of R. v. W.(D.), [1991] 1 S.C.R. 742, into play. The court must consider these principles when considering the evidence of the accused and whether the evidence convinces the court beyond a reasonable doubt of the guilt of the accused. In W.(D.), the Supreme Court of Canada stated at paragraph 28:

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury or the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused, but you are left in a reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[32] This formula of the court reinforces the principle that the Crown must prove the guilt of the accused beyond a reasonable doubt, which is a cornerstone in the criminal justice system in Canada.

[33] In his evidence, Gary Levar categorically denies that the events related to the court by K.L. ever occurred. Mr. Levar acknowledges knowing K.L. who stayed at his home for lengthy periods of time because she had no place to live. Levar’s evidence was that she stayed at his home for a two-month period until early September 2017 when K.L. overdosed at his home. Gary Levar testified that this overdose incident and the fact that the police attended at his home looking for K.L. on one occasion caused him not to want Ms. K.L. at his home. Mr. Levar testified that he was on house arrest and that he did not want the police at his home or attention drawn to his home.

[34] Gary Levar acknowledges that K.L. was at his home on September 29 and 30, 2017. He testified that he was at home when Ms. K.L. came to his home at approximately 10:30 a.m. on September 29, 2017. He did not want Ms. K.L. at his home and asked Donnie Laroue to get her out of his home. It was the evidence of Gary Levar that he refused Ms. K.L.’s request for drugs and that he told her that he didn’t want her at his home. Mr. Levar testified that Donnie Laroue left his home with K.L. at approximately 1:00 p.m., but six or seven hours later, K.L. was back at his home. At that point in time, Mr. Levar was playing in his bedroom while watching golf. It was his evidence that he asked Ms. K.L. to leave and would not give her drugs and she had a “temper tantrum” and “was freaking out”. Mr. Levar testified that he left his bedroom to try to get away from Ms. K.L. and that when she went downstairs he went back up to his bedroom.

[35] Gary Levar testified that at that point in time Ms. K.L. came back upstairs to his bedroom with a bottle of pop which she spilled on the floor and wiped up with his former wife’s grey hoodie (Exhibit 9). It was the tenor of Mr. Levar’s evidence that he spent the evening trying to avoid K.L. and eventually went back downstairs and fell asleep on the chesterfield. His evidence was that it was approximately 10:00 a.m. on September 30, 2017 when he woke up in the downstairs area of his residence. He testified that he went to his bedroom to find K.L. sleeping on the couch in his room, dressed in white panties and a white bra. Mr. Levar testified that he woke Ms. K.L. up and that she put on a pair of jeans that were in his home that belonged to his daughter, Brittany. K.L. asked for a piece of crack cocaine, that Mr. Levar provided it to her, and she consumed it. Mr. Levar testified that he stayed in his bedroom and that K.L. went downstairs. His evidence was that when he went back downstairs, K.L. had left to go to her sister’s.

[36] Pointed questions were put to Mr. Levar about the objects in his bedroom and whether he used these objects on K.L.. He stated that there were tools in his room because he was doing renovations in the upstairs of his home. He denies using any objects, such as a bat, golf club, blow torch, staple gun or saw on K.L.. Mr. Levar testified that he “would never hit a woman because there is no competition in it”. His evidence was that “she is only 100 pounds”. Gary Levar denied threatening or confining K.L. in any way. His evidence was that he wanted Ms. K.L. to leave his home and that he continually asked her to do so. He described the lock on his bedroom door as being on the inside, “to keep people out”, and a lock that can be turned on the inside to get out of the room.

[37] It was the evidence of Gary Levar that on September 29 and 30, 2017 he had no sexual contact with K.L. and that the allegation that he sexually assaulted K.L. “is definitely a lie”. It was the evidence of Gary Levar that he was never alone with K.L. on September 29 and 30, 2017, and that Vanessa McKinnon was there at all times when he was with K.L..

[38] Gary Levar testified that he never put MDMA in anything that K.L. consumed on the night in question. His evidence was that “I never did MDMA” and that K.L. brought the Sprite bottle to his home and that he thought that she was trying to drug him with the Sprite bottle.

[39] In his evidence, Gary Levar took every opportunity that he could to paint himself as a philanthropist, someone who was providing a home for drug addicts and drugs to them for free. In cross-examination it became clear that Mr. Levar was providing cocaine to women in exchange for oral sex. He was receiving a benefit for his supply of cocaine to the women at his house, and as I said in my oral reasons, it is clear that Gary Levar is a drug dealer, plain and simple.

[40] In his evidence Gary Levar also tried to minimize his drug use on the day in question and the effect that it had upon him. Mr. Levar admitted that he had been addicted to cocaine since 2012. Mr. Levar admitted that in September 2017 he was using cocaine almost every day and sometimes multiple times a day, yet his evidence was that he used a minimal amount (half a gram) when K.L. was in his home on September 29, 2017. Mr. Levar also testified that the cocaine he used that evening had little effect on him, and in fact “makes me feel more awake”. Levar’s evidence was that he was not high at all during the evening of September 29, 2017 and that he did not experience the symptoms of cocaine use as described by Dr. Nathalie Desrosiers in toxicology report dated January 15, 2018 (Exhibit 24).

[41] I find the evidence of Gary Levar on his drug consumption on the night of September 29 and 30, 2017 and the effects of him being on drugs that night to be completely self-serving to the point that it cannot be relied upon. Undoubtedly, Mr. Levar’s drug use on September 29 and 30, 2017 was no different than in the past and his use of cocaine would have affected his ability to recall what occurred on these evenings and affect the overall reliability of his evidence.

[42] In applying W.(D.), the evidence of the accused does not lead me to acquit nor, on its own, does it raise a reasonable doubt. It is the third prong of W.(D.) that the court is left with. Even if I am not left in a doubt by the evidence of the accused, I must go on to consider the evidence as a whole and must ask myself whether on the basis of the evidence I do accept if I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. I must consider whether the Crown has proven the guilt of the accused beyond a reasonable doubt. The totality of the evidence, the evidence of Paul Quesnel, and in particular, Vanessa McKinnon, raise a reasonable doubt and lead the court to conclude that the Crown has not proven its case against Gary Levar beyond a reasonable doubt.

[43] Paul Quesnel is a prisoner in custody at the Beavercreek Institute. Mr. Quesnel’s criminal record is extensive, begins in 2012 and reflects 15 prior convictions for robbery and theft and 19 prior convictions for breaches and crimes against the administration of justice (Exhibit 25). It was the evidence of Paul Quesnel that he suggested to K.L. that she fabricate charges against Gary Levar so that he would be arrested and out of his home so that he and K.L. could rob Gary Levar and, in fact, that this is what transpired.

[44] It was the evidence of Paul Quesnel that he met K.L. at the home of Bernie Nadon where they both purchased drugs. At the time, Quesnel was addicted to heroin and would attend Nadon’s home two or three times a week to buy heroin. As Mr. Quesnel stated, “I was into the heroin or fentanyl pretty good”. At this meeting with K.L., which Quesnel places in mid-August 2017, Quesnel noticed that K.L. was angry about “stuff to do with Gary” and commented that Levar was a “cash cow” with money and jewelry. Paul Quesnel testified that, “I kind of just put thoughts together because I am always looking for a score sometimes”, which prompted him to suggest to K.L. that she charge Levar with something so he would be arrested and go to jail. Once Gary Levar was in jail, he could be robbed. It was the evidence of Paul Quesnel that he suggested this scheme to K.L. and planted it in her mind. It was also the evidence of Paul Quesnel that he suggested to K.L. that she does this on a weekend, because Levar would not get a chance to make bail until Monday. As Quesnel put it in his evidence, “It sounded like an easy score so I just gave her all the ideas”.

[45] Paul Quesnel testified that he next saw K.L. at the end of September or beginning of October 2017, again at Bernie Nadon’s home. It was the evidence of Quesnel that at that time K.L. told him that she did what they talked about related to Gary Levar. Mr. Quesnel testified that he is able to place this meeting with K.L. at the beginning of October 2017 because he had just given his brother money for his birthday, and his birthday was on October 4th. Quesnel testified that he and K.L. took the bus to a couple of streets before Patrick Street and walked to Gary Levar’s residence. It was the evidence of Paul Quesnel that he and K.L. entered the Levar residence, went up the stairs to the bedrooms with each of them going to separate bedrooms. Paul Quesnel testified that he found nothing but that K.L. found cash and some jewelry, which he indicated was a couple of rings, a watch, a girl’s necklace and bracelet. Mr. Quesnel’s evidence is that he and K.L. divided the cash equally, with each getting $1,500, and that he got rings that he traded with Dylan Boyer for drugs.

[46] It was the evidence of Paul Quesnel that when he initially told Gary Levar about all of this that Levar was angry with him but they ultimately became friends and watched television and played cards while they were both incarcerated at the Algoma Treatment and Remand Centre. As to why he told Gary Levar, Paul Quesnel stated, “I am trying to make a change myself, so just felt like it was the right thing to – is to come forward”.

[47] In cross-examination, the Crown suggested to Paul Quesnel that he was bought off for his testimony by Gary Levar. Gary Levar was questioned on this point as well by the Crown and admitted that on a couple of occasions he had money put into Paul Quesnel’s canteen account at the Algoma Treatment and Remand Centre, so he could get more canteen – meaning more candy bars, chips and other items than was allotted for each inmate. It was the evidence of Gary Levar that he directed his daughter Brittany Levar to put money into Paul Quesnel’s canteen account two or three weeks after Christmas and that “$60 was put in probably”.

[48] Both Paul Quesnel and Gary Levar disagreed with the Crown’s position put to them that Paul Quesnel was paid in exchange for his testimony. In reply, the Crown called Annetta Golder as a witness. Ms. Golder is the Superintendent at the Algoma Treatment and Remand Centre, where both Levar and Quesnel were inmates. She gave evidence as to how the canteen system works in that institution. There is a limit as to what can be deposited and inmates cannot directly transfer money into another inmate’s canteen account but can do so through a third party. Ms. Golder testified that the purpose of the canteen is for an inmate to have money for items such as toothpaste, snacks, chocolate bars and chips. There is a limit to how many such items an inmate can have each week. Entered as Exhibit 26 was the OTIS Trust Report for the canteen account of Paul Quesnel. This account was opened on November 14, 2017 and was closed on April 17, 2018. The entries on Exhibit 26 show that the following deposits were made into the canteen account by Brittany Levar, the daughter of Gary Levar:

• $100.00 on November 14, 2017;
• $50.00 on December 19, 2017;
• $50.00 on February 5, 2018.

[49] In her evidence to the court, Annetta Golder agreed that the inmates at the Algoma Treatment and Remand Centre use their canteen money to gamble when playing cards or to trade items. Ms. Golder agreed with the suggestion of defence counsel that inmates try to deposit money into their canteen accounts for trade. Ms. Golder testified that this is not an unusual practice for inmates.

[50] As indicated earlier in these reasons, it was the evidence of both the complainant and the accused that Vanessa McKinnon was present during all the interactions that Gary Levar had with K.L. on September 29 and 30, 2017. Vanessa McKinnon gave evidence. Ms. McKinnon testified that she knew K.L. and that Ms. K.L. was around the home of Gary Levar quite often. Ms. K.L. would get drugs from Gary Levar as would Ms. McKinnon, who would stay at Levar’s for lengthy periods of time and cook and clean for him in exchange for drugs and a place to stay. At the time of the alleged incident, Ms. McKinnon was addicted to drugs and would continuously use cocaine throughout the day. As Ms. McKinnon put it in her evidence, “I had a bad habit then”. It was the evidence of Ms. McKinnon that she was clean and sober for a three-month period prior to giving her evidence to the court.

[51] It was the evidence of Vanessa McKinnon that nothing out of the ordinary occurred at the home of Gary Levar on September 29 or 30, 2017. Ms. McKinnon recalls Ms. K.L. coming to the Levar home complaining of being “dope sick” and asking for money from Mr. Levar to buy drugs. When her requests were refused, Ms. K.L. was “throwing a little fit”. Ms. McKinnon indicated in her evidence that she had seen K.L. do this “plenty of times” before. It was the evidence of Vanessa McKinnon that Gary Levar refused to give K.L. money or drugs and that she heard Mr. Levar ask K.L. to leave his home.

[52] Vanessa McKinnon testified that upstairs in Mr. Levar’s bedroom, “nothing was going on out of the ordinary”. It was her evidence that she saw no violence, no assaults or no one getting hurt. As Ms. McKinnon put it, “it was just a regular day”. The only acting out that Ms. McKinnon observed was that of Ms. K.L. “jumping and freaking out and crying and stuff”. When asked if she saw Mr. Levar use a golf club or bat or torch on Ms. K.L., Vanessa McKinnon stated, “I wouldn’t just sit there and allow it to happen. If anything like that had happened, I would call the police”. When pressed about this answer in cross-examination by Crown counsel, Vanessa McKinnon gave the following evidence:

I grew up in a very – I don’t know if I should be saying this, but I grew up in a very abusive household, like when I was a child. I would never – I would never sit there and allow it to happen. Like, if you even look back, like when things would happen to me, I would call the police, like there is police reports where I’ve called the cops when I was young. Why would I sit there and watch something happen, like it’s...and it’s been my whole life; why would I sit there and watch it.

[53] In cross-examination, Crown counsel suggested to Vanessa McKinnon that she was loyal to Gary Levar for all that he has done for her, for providing her with shelter and that is what is motivating her to give favourable evidence for him. The response of Ms. McKinnon was simple and, in my view, powerful – “I have no loyalty. I have sworn upon an oath, the Bible”. As I previously stated in my oral reasons delivered on October 25, 2017, Ms. McKinnon made it clear that her loyalty was to the court in giving her evidence. As I stated in my oral reasons, “this response was unrehearsed and a refreshing response, which, in my view, was a powerful indicator about the weight the court should give to her evidence”.

DISCUSSION/ANALYSIS

[54] I have provided much of my discussion and analysis in my oral reasons delivered on October 25, 2018. All the witnesses who testified about what did or did not occur at the Levar home on September 29 and 30, 2017 had all consumed drugs, which greatly affected the quality of the evidence that they gave to the court. Although Gary Levar attempted in his evidence to minimize his drug consumption those days and the effect that it had on him, he had consumed cocaine which undoubtedly impacts on the reliability of his evidence. The complainant, K.L., and Vanessa McKinnon were more forthright than Levar about the drugs they consumed those days and clearly the consumption of drugs by them impacts on the reliability of the evidence that they gave to the court. In the case of the complainant, K.L., her evidence is that she was in and out of consciousness during the evening of September 29, 2017 and on September 30, 2017, and there are portions of those days that she simply cannot recall. The evidence of K.L. was replete with statements that she could not recall or that her evidence was fuzzy or blurry about events. K.L. stated in her evidence that, “I was feeling very out of it”, that, “I was under the influence of something I took and I didn’t know what was going on”, that the incidents in between main events were “pretty blurry”, that “I just remember the main incidents – in between I passed out or so out of it I don’t remember”, that “from there I’m not sure”, that “I went unconscious again. I am assuming it was the drugs”, and that she had “no recollection of any sexual encounter with Levar”. None of this is surprising given the admission by K.L. that she was intoxicated and high throughout the time that she was at Gary Levar’s home on September 29 and 30, 2017. Due to drug consumption and frequent periods of unconsciousness the evidence of the complainant is fraught with frailties that cannot be relied upon to achieve the level of certainty required to establish proof beyond a reasonable doubt.

[55] It could be suggested that the evidence of Christine Simpson and the forensic evidence from the experts at the Centre of Forensic Science provide corroboration for the testimony of K.L. and that the court does not have to rely on her testimony alone. The toxicology report (Exhibit 24) detects Ecstasy or Molly in the complainant’s urine, and MDMA and cocaine in the Sprite bottle. This establishes that MDMA was in the bottle that she complainant drank out of but it was the evidence of Gary Levar that Ms. K.L. brought that bottle to his home and that she voluntarily drank out of that bottle and was not forced by him to do so. The DNA evidence indicated that no blood was found on the tip of the spear gun. The explanation for this provided by Ms. Brutzki is just as consistent with the version of events given by Mr. Levar as it is with the version of events given by Ms. K.L.. Ms. K.L. testified that when she was stabbed by the spear gun by Mr. Levar that she “had a wound and it was bleeding”. This evidence is hard to reconcile with the fact that there was no blood found on the tip of the spear gun and is more plausible with the explanation that the spear gun was not used than it is with the other two possible explanations provided to the court by Ms. Brutzki. As to the DNA found on the crotch area of the pants, Mr. Levar cannot be excluded as a contributor to the semen found along with another unknown individual. Although the 31,000 times factor is “strong support that he is – that the DNA evidence, that he’s part of that mixture” as indicated by Ms. Brutzki, it is not as large of a ratio that she has seen in other reports that are in the trillions or quadrillions. The scenario put to Ms. Brutzki by the defence, that the pants were worn by another female who had an interaction with Mr. Levar and then the pants were worn by Ms. K.L. could account for the DNA results found, as indicated by Ms. Brutzki in her evidence.

[56] Registered Nurse Christine Simpson who did the physical examination of K.L. and did the body mapping (Exhibit 22) and took the photographs in Exhibit 1, Tab 2, provide corroboration for physical injuries sustained by Ms. K.L.. In her evidence, K.L. describes being hit with golf clubs multiple times in her upper thigh, upper arm and shoulder area with such force that the pain felt “excruciating”. She describes being hit “very forcefully”. She describes a wound that was bleeding with “a big bruise around it” as a result of being stabbed with the spear gun. She described having two significant burns on each of her breasts and multiple burns on her face and arm as a result of having a blow torch applied to her. She describes having blisters in these areas. Ms. K.L. describes having the bun in her hair at the back of her head cut off to such an extent that “it was basically to the scalp at the back”. Ms. K.L. described having a hooped nose ring pulled from her nose with a pair of pliers.

[57] In my view, the photographs at Exhibit 1, Tab 2, and the body mapping form (Exhibit 22) do not depict injuries to the extent that K.L. described them or injuries consistent with the forceful and repeated assault with a bat or golf club. There are no bruising to K.L.’s shoulder or arm or to her legs or upper thighs that would support her version of being hit so forcefully that she would be in “excruciating pain” as she described it. There is no evidence that would have been depicted in the photographs if evidence existed, to show that the hair on the back of Ms. K.L.’s head was cut to the scalp, as she described it. There are no injuries shown in Ms. K.L.’s nose either in the photographs or the body mapping which would be expected if a nose ring was pulled from her nose with pliers. I am not satisfied that the evidence in Exhibit 1, Tabs 2 and 4, or Exhibit 22 support or corroborate the version of events related to the court by K.L.. To the contrary, this evidence raises some doubt about K.L.’s version of events particularly given the fact that the horizontal markings on her arms depicted in photographs 23 and 24 of Exhibit 1, Tab 2, were admittedly self-inflicted by her.

[58] The evidence of Paul Quesnel, and, in particular, the evidence of Vanessa McKinnon, raise a reasonable doubt. The evidence of Paul Quesnel was not so shaken in cross-examination that I am left in a position of discounting his evidence. The evidence of Paul Quesnel could quite possibly be true and it is possible that this is a scheme concocted by Quesnel and K.L. to rob Gary Levar. I am not convinced that nominal deposits into Mr. Quesnel’s canteen account at the Algoma Treatment and Remand Centre has bought his testimony in support of Gary Levar. I found a sincerity and genuineness in Mr. Quesnel’s assertion that he is trying to turn his life around and consequently is trying to do the right thing.

[59] As I indicated in my previously delivered oral reasons, I am not prepared to ignore or discount the evidence of Vanessa McKinnon.

It is true that Ms. McKinnon was high on drugs on September 29th, 2017 and that she cannot provide the court with much detail about the events of that night. Having said this, I believe Ms. McKinnon when she says if there were details to provide that night which were extraordinary, she would remember them. I believe Ms. McKinnon when she says that she was abused as a child and would not stand by and simply watch or participate in the abuse if she saw someone being harmed. There was a sincerity and almost a naivety to her evidence that made it compelling. It is obvious that Ms. McKinnon was reluctant to testify and did not want to be in court, but her explanation for this seems reasonable. It is not hard to believe that a drug addict, who has been clean for the past three months and wants to remain clean for herself and her two children, does not want to have to recall events in her past life as a drug addict. If Ms. McKinnon was motivated to give evidence to pay back Mr. Levar, one would imagine that she would relish giving evidence more than she did when she testified at the trial. When cross-examined by the Crown about her loyalties and her motives to give evidence, Ms. McKinnon made it clear that her loyalty was to the court in giving her evidence – as she stated, “I have sworn an oath on the Bible.” This response was unrehearsed and a refreshing response, which, in my view, was a powerful indicator about the weight the court should give to her evidence.

[60] On the totality of the evidence before me, I am not sure what happened at 320 Patrick Street the night of September 29th and 30th, 2017. In considering the evidence of the experts from the Centre of Forensic Sciences and Christine Simpson, the Sexual Assault Nurse Examiner at the Sault Area Hospital, along with the evidence of K.L., I could conclude that Ms. K.L. experienced the night of torture she described at the hands of Gary Levar. In considering the evidence of Mr. Levar, Paul Quesnel and especially the evidence of Vanessa McKinnon, I could equally conclude that the events described by Ms. K.L. never occurred.

[61] At the end of the day, the last paragraph of the jury instruction on reasonable doubt is applicable to the evidence in this case and bears repeating:

If, at the end of the case, based on all of the evidence or lack of evidence, you are not sure that the accused committed the offence, you should find him not guilty of it.

[62] I am not sure what happened at the Levar residence on September 29th and 30th, 2017 with the certainty required to make findings of fact that would satisfy me that the Crown has proven the essential elements in Count 1 and Counts 3 to 15 of the indictment beyond a reasonable doubt. Accordingly, the accused has to be acquitted on those counts.

Gareau J.

Released: January 17, 2019

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – GARY JOSEPH LEVAR REASONS FOR JUDGMENT Gareau J.

Released: January 17, 2019