R. v. Levin (A.), (2012) 549 A.R. 236 (QB)

• Judge: Shelley, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 17, 2012
• Citations: (2012), 549 A.R. 236 (QB);2012 ABQB 769

R. v. Levin (A.) (2012), 549 A.R. 236 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. FE.080

Her Majesty The Queen v. Aubrey Levin (10084200Q1; 2012 ABQB 769)

Indexed As: R. v. Levin (A.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Shelley, J.

December 17, 2012.

Summary:

The accused psychiatrist was charged with sexually assaulting 10 male patients. During the trial, the accused discharged counsel and sought an adjournment to allow new counsel time to prepare. The trial judge declined to grant an adjournment, resulting in the accused representing himself for six days. New counsel was then granted a two week adjournment to prepare. The accused applied for a mistrial on the grounds of "(a) insufficient time to permit new counsel to properly prepare; (b) incompetence/ineffectiveness of former counsel; (c) receipt of prejudicial evidence by the jury; (d) denial of his right to be present for trial; and (e) continuation of the trial in his absence". A second mistrial application was brought based on incompetence and/or misconduct by his former counsel.

The Alberta Court of Queen's Bench dismissed the applications.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused discharged his counsel during his trial and sought a mistrial on the ground of counsel's incompetence, ineffectiveness and misconduct - The Alberta Court of Queen's Bench stated that "the vast majority of cases where allegations on ineffectual representation by counsel are alleged arise when there is an appeal, based upon fresh evidence of mishandling of the trial due to incompetent counsel, resulting in a miscarriage of justice. ... It is highly unusual to see this argument raised mid-trial upon retention of alternate counsel. Counsel were unable to refer me to any cases dealing with this situation. While I do not rule out the possibility of declaring a mistrial in such circumstances, there must be clear grounds to do so and evidence that the consequences arising from the incompetent or unethical conduct of counsel, if established, cannot be cured in any manner short of a mistrial. ... there is a presumption in law that counsel is competent. ... The fact that an accused switches counsel mid-trial does not afford him the opportunity to, in essence, rebuild his defence from the ground up. Court time and judicial resources are scarce. ... It is not enough for an applicant to simply allege that the incompetence of his former counsel was such that a mistrial must be declared. ... There must be evidence upon which allegations in support of an application for a mistrial are based. ... It is not uncommon for an accused to second-guess decisions made by counsel either during or after trial. ... Tactical or strategic decisions are, generally, considered to be within the purview of defence counsel. ... The onus of establishing ineffective or incompetent representation lies with the accused." - The court held that the accused failed to establish incompetent or ineffective representation by his former counsel that would result in a miscarriage of justice if a mistrial was not granted - See paragraphs 46 to 71.

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - The accused discharged his counsel during his trial and sought an adjournment to allow his newly retained counsel to prepare - That application was denied and constituted one of the grounds for the accused's application for a mistrial - The Alberta Court of Queen's Bench stated that "discretion in relation to adjournments must be exercised judicially. Relevant considerations in connection with an adjournment application include: 1) the gravity of the charges against an accused; 2) the number of previous adjournments, and who initiated each one; 3) the consequences of an adjournment for the accused; 4) the consequences of an adjournment for the Crown; 5) the stage of these proceedings; 6) the evidence that has been adduced in support of the application, as well as earlier applications; and 7) the nature and weight of the public interest in either granting or denying an adjournment" - See paragraph 34.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - The accused psychiatrist was charged with sexually assaulting 10 male patients - During the trial, two pieces of prejudicial evidence were admitted when they should not have been - One involved 39 lines that were inadvertently missed in redacting a 240 page transcript of a DVD interview with the accused - The DVD was not seen by the jury before it was corrected, but the transcript was in the jury's possession - There was no evidence as to whether the jury had noticed the 39 lines - The prejudicial evidence was not relevant to the accused's guilt or innocence, but portrayed the accused negatively - The other involved one of the complainant's blurting out prejudicial evidence during his testimony (i.e., that accused told him of being in the army and forcing men to rape women) - The jury was given a mid-trial instruction on the prejudicial evidence and the issue would be dealt with in final instructions to the jury - The Alberta Court of Queen's Bench held that a mistrial was a drastic remedy of last resort - The issue was "whether it is likely that the jury's exposure to inadmissible evidence has so compromised the trial that no other remedy can protect the right of the accused to a fair trial" - In refusing to grant a mistrial, the court stated that "the prejudicial information does not relate to any relevant fact that is currently in dispute. Its character is obviously negative, and portrays [the accused] in a negative light. I therefore concluded that it is inadmissible ... I conclude that both of these forms of prejudicial information can be effectively dealt with by appropriate instructions. Instructions have already been given, with input from counsel, and will be further dealt with in the jury charge. I am satisfied that such instruction can overcome any prejudice caused to [the accused]. I also conclude that the prejudicial information has not so affected the jury that the entire trial has been compromised to the extent that [the accused] cannot receive a fair trial" - See paragraphs 72 to 101.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - [See Criminal Law - Topic 3158 ].

Cases Noticed:

R. v. White (P.L.) (2010), 474 A.R. 310; 479 W.A.C. 310; 2010 ABCA 66, refd to. [para. 32].

R. v. Devera (R.O.) (2010), 482 A.R. 389; 490 W.A.C. 389; 2010 ABCA 154, refd to. [para. 33].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 106 D.L.R.(3d) 212, refd to. [para. 52].

R. v. Dixon (S.) (1997), 156 N.S.R.(2d) 81; 461 A.P.R. 81; 33 W.C.B.(2d) 319 (C.A.), affd. [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 53].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 53].

R. v. Travis (C.C.) (2012), 550 A.R. 199; 2012 ABQB 629, refd to. [para. 53].

Lenko v. Grabler, [1988] A.J. No. 470 (Q.B.), refd to. [para. 54].

R. v. Elliott (1975), 28 C.C.C.(2d) 546 (Ont. C.A.), refd to. [para. 55].

R. v. L.S.C. (2003), 327 A.R. 262; 296 W.A.C. 262; 13 C.R.(6th) 390; 2003 ABCA 105, refd to. [para. 56].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 100 C.C.C.(3d) 225 (C.A.), refd to. [para. 57].

R. v. Gillis (2003), 58 W.C.B.(2d) 405; 2003 ABQB 713, refd to. [para. 58].

R. v. Campeau (D.J.), [2006] Sask.R. Uned. 196; 72 W.C.B.(2d) 237; 2006 SKPC 15, refd to. [para. 59].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 60].

R. v. White (H.S.) and Sennets (S.) (1997), 99 O.A.C. 1; 32 O.R.(3d) 722 (C.A.), refd to. [para. 62].

R. v. Dooley (E.A.) (2009), 257 O.A.C. 150; 2009 ONCA 910, refd to. [para. 62].

R. v. Donovan (S.), [2007] O.T.C. Uned. G04; 53 M.V.R.(5th) 82; 74 W.C.B.(2d) 685 (Sup. Ct.), refd to. [para. 62].

R. v. Krnic (T.), [2009] O.T.C. Uned. E02 (Sup. Ct.), affd. [2010] O.A.C. Uned. 444; 2010 ONCA 568, refd to. [para. 63].

R. v. Furtado (M.), [2006] O.T.C. 838; 43 C.R.(6th) 305; 42 M.V.R.(5th) 102 (Sup. Ct.), refd to. [para. 65].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 83 D.L.R.(4th) 193, refd to. [para. 79].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 82].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 84].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 130 D.L.R.(4th) 235, refd to. [para. 84].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 84].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 84].

R. v. Toutissani (R.), [2007] O.A.C. Uned. 455; 2007 ONCA 773, refd to. [para. 86].

R. v. Jeanvenne (A.) (2010), 270 O.A.C. 22; 261 C.C.C.(3d) 462; 2010 ONCA 706, refd to. [para. 87].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 89].

R. v. Armstrong, [1970] 1 C.C.C. 136; 1 N.S.R.(1965-69) 681 (C.A.), refd to. [para. 92].

R. v. Emkeit, [1974] S.C.R. 133, refd to. [para. 93].

R. v. Rollocks (R.) (1994), 72 O.A.C. 269; 91 C.C.C.(3d) 193 (C.A.), refd to. [para. 97].

Counsel:

W. Wister and D. Sopko, for the Crown;

E.C. Archer and K.B. Molle, for the accused.

These applications were heard before Shelley, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on December 17, 2012.