R. v. Levin (A.), (2012) 549 A.R. 200 (QB)

• Judge: Shelley, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 29, 2012
• Citations: (2012), 549 A.R. 200 (QB);2012 ABQB 735

R. v. Levin (A.) (2012), 549 A.R. 200 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JA.141

Her Majesty the Queen (respondent) v. Aubrey Levin (applicant)

(100842400Q1; 2012 ABQB 735)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

Shelley, J.

November 29, 2012.

Summary:

The accused doctor was charged with sexually assaulting 10 complainants. During his jury trial, the accused applied for the trial judge to recuse himself on the ground of actual bias or, alternatively, a reasonable apprehension of bias. The accused argued that the judge's rulings on applications before and during the trial, which the accused alleged imputed that his applications were with the intent of delaying the trial (i.e., predisposition of the merits), showed actual or perceived bias.

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

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The accused doctor was charged with multiple sexual assaults - During his jury trial, the accused applied for the trial judge to recuse himself on the ground of actual bias or, alternatively, a reasonable apprehension of bias based on rulings on applications before and during the trial which allegedly imputed that his applications were intended to delay the trial (i.e., predisposition of the merits) - The rulings showed that the judge shared the Crown's concern that the accused might have discharged counsel, induced his own medical emergency (intentionally taking more than his prescribed heart medication to induce symptoms requiring medical treatment), and made multiple other adjournment applications, for the purpose of intentionally delaying his trial - The Alberta Court of Queen's Bench stated that "any submissions made by the Crown regarding [the accused's] intentions or conduct during these proceedings cannot be attributed to the court. Although I may have agreed with the Crown on some of their submissions in this regard, I did not rely on any prejudicial portion of these submissions to predetermine the issues or to make my decisions" - The record contained evidence supporting the comments and decisions alleged to be indicative of bias - The mere fact of unfavourable rulings against the accused did not constitute bias or a reasonable apprehension of bias - See paragraphs 1 to 75.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The Alberta Court of Queen's Bench stated that "an assertion of bias effectively alleges that a trial judge is not or has not been impartial as between the Crown and the accused and has 'prejudged an issue in the case, or to put it another way, she reached her determination on the basis of factors which were not in evidence'" - The test for a reasonable apprehension of bias was: "the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information ... the test is what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly" - See paragraphs 20, 25.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The accused doctor was charged with multiple sexual assaults - During his jury trial, the accused applied for the trial judge to recuse himself on the ground of actual bias or, alternatively, a reasonable apprehension of bias based on rulings on applications before and during the trial which allegedly imputed that his applications were intended to delay the trial (i.e., predisposition of the merits) - The Alberta Court of Queen's Bench held that context was of "supreme importance" in a recusal application - The fact that this was a jury trial, where a jury (not the judge" would determine the accused's innocence or guilt, was relevant - The court noted that all of the allegations of bias, except one, related to circumstances that arose during voir dires, when the jury was not present - Any comments or actions by the court, in the jury's absence, "will not affect the jury's reasoning in deciding the case" - See paragraph 30.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Criminal Law - Topic 92.3 ].

Criminal Law - Topic 92.3

General principles - Mental disorder - General - Preliminary trial of issue of fitness (incl. "protected statements") - The accused was charged with sexual assaults - It was a jury trial - The accused himself claimed he was mentally unfit to stand trial - A Crown expert (Choy) evaluated his fitness to stand trial and provided evidence to the court - The accused argued that the trial judge's misuse of some of his statements to Choy, which were "protected statements" under s. 672.21 of the Criminal Code, showed either bias or a reasonable apprehension of bias by the trial judge - The accused, an experienced psychiatrist who had appeared many times in court as an expert witness on court-ordered assessments, initiated the proceeding - There was no state compulsion to speak with Choy (i.e., provide evidence against himself) - The accused was aware of his rights - The Alberta Court of Queen's Bench held that the entire conversation between the accused and Choy was not a "protected statement" - Any portions of the conversation that were self-incriminating or affected the accused's ability to make full answer and defence, were "protected statements" - The court held that no reference was made to specific comments - The court only made a one sentence reference in broad terms to the accused's ability to communicate with Choy along with other examples of his ability to communicate - No details to the conversation were revealed - Even if the court was wrong on the narrowness of what constituted a "protected statement", the brief reference was not evidence of bias, real or apprehended - See paragraphs 49 to 57.

Cases Noticed:

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 118 C.C.C.(3d) 353, refd to. [para. 19].

Liteky v. United States of America (1994), 114 S.Ct. 1147, refd to. [para. 19].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 21].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 24].

Locabail (UK) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451, refd to. [para. 24].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 25].

R. v. Bolianatz (N.C.) (2012), 536 A.R. 26; 559 W.A.C. 26; 2012 ABCA 238, refd to. [para. 26].

R. v. Trang (D.) (2002), 332 A.R. 1; 17 Alta. L.R.(4th) 358; 2002 ABQB 1130, refd to. [para. 30].

R. v. Giroux (L.), [2001] O.T.C. 981; 52 W.C.B.(2d) 407 (Sup. Ct.), refd to. [para. 31].

R. v. Forslund (R.A.), [2007] B.C.T.C. Uned. C03; 73 W.C.B.(2d) 78; 2007 BCSC 338, refd to. [para. 31].

R. v. Trunzo (M.) (2012), 282 Man.R.(2d) 18; 2012 MBQB 211, refd to. [para. 31].

R. v. Felderhof (J.B.) (2003), 180 O.A.C. 288; 68 O.R.(3d) 481 (C.A.), refd to. [para. 32].

Cunningham v. Lilles et al., [2010] 1 S.C.R. 331; 399 N.R. 326; 283 B.C.A.C. 280; 480 W.A.C. 280; 2010 SCC 10, refd to. [para. 34].

R. v. Toor (J.S.) (2001), 277 A.R. 350; 242 W.A.C. 350; 2001 ABCA 88, refd to. [para. 36].

Boardwalk Reit LLP v. Edmonton (City) et al., [2008] 8 W.W.R. 251; 437 A.R. 199; 433 W.A.C. 199; 2008 ABCA 176, refd to. [para. 38].

R. v. B.G., [1999] 2 S.C.R. 475; 240 N.R. 260, refd to. [para. 42].

R. v. Feldberg (J.J.) (1999), 252 A.R. 158 (Q.B.), refd to. [para. 43].

R. v. Genereux (J.) (2000), 140 O.A.C. 165 (C.A.), refd to. [para. 45].

R. v. White (R.G.) (2002), 216 Sask.R. 224; 2002 SKQB 73, refd to. [para. 46].

R. v. R.A.N. (2001), 293 A.R. 342; 257 W.A.C. 342; 2001 ABCA 312, refd to. [para. 47].

R. v. S.C.P. (2010), 270 O.A.C. 190; 2010 ONCA 696, refd to. [para. 48].

R. v. Mousseau (T.M.) (2003), 351 A.R. 23; 2003 ABQB 621, refd to. [para. 48].

R. v. Bennight (R.), 2010 BCSC 1332, refd to. [para. 55].

R. v. Chan (M.K.) et al. (2002), 317 A.R. 240; 284 W.A.C. 240; 2002 ABCA 299, refd to. [para. 63].

R. v. Cai - see R. v. Chan (M.K.) et al.

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 44 D.L.R.(4th) 193, refd to.[para. 64].

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; 128 D.L.R.(4th) 98, refd to. [para. 64].

R. v. Harris (R.L.) (2009), 331 Sask.R. 283; 460 W.A.C. 283; 2009 SKCA 96, refd to. [para. 65].

R. v. Wills (R.), [2010] O.A.C. Uned. 75; 2010 ONCA 128, refd to. [para. 66].

R. v. Rushlow (W.) (2009), 250 O.A.C. 75; 96 O.R.(3d) 302; 2009 ONCA 461, refd to. [para. 68].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 672.21 [para. 39].

Counsel:

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

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

This application was heard before Shelley, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on November 29, 2012.