R. v. Levin (A.), 2014 ABCA 142

• Judge: Fraser, C.J.A., Conrad and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 23, 2014
• Citations: 2014 ABCA 142;(2014), 572 A.R. 382

R. v. Levin (A.) (2014), 572 A.R. 382; 609 W.A.C. 382 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AP.108

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

(1301-0019-A; 2014 ABCA 142)

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

Alberta Court of Appeal

Fraser, C.J.A., Conrad and McDonald, JJ.A.

April 23, 2014.

Summary:

The accused psychiatrist was charged with sexually assaulting 10 male patients. The jury convicted him of assaulting three patients. The accused appealed his convictions and applied to admit fresh evidence on the appeal. Particularly, the accused argued that the judge erred: (1) in failing to order disclosure of the police complaint voicemail records on their "TIP" line and telephone records and recordings held by the Calgary Remand Centre relating to one of the complainants (RB); (2) in failing to give adequate reasons on the application for disclosure of police reports respecting RB's convictions for crimes of dishonesty; (3) in not allowing full and proper cross-examination of Crown witnesses; and (4) in analyzing the lost evidence application.

The Alberta Court of Appeal declined to admit the fresh evidence and dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 8599

Canadian Charter of Rights and Freedoms - Practice - Appeals - Standard of review - The Alberta Court of Appeal stated that "Issues of disclosure resulting in a breach of the Charter right to a fair trial are reviewed on a standard of correctness. Where the scope of the Charter right has been correctly determined, fact findings relating to the breach of that right are reviewed on a palpable and overriding error standard" - See paragraph 17.

Criminal Law - Topic 129

Rights of accused - Right to discovery or production (disclosure) - [See all Criminal Law - Topic 4505 ].

Criminal Law - Topic 130

Rights of accused - Preparation of defence - Duties of Crown and police - [See second Criminal Law - Topic 4505 ].

Criminal Law - Topic 689

Sexual offences - Evidence - Sexual conduct or character of complainant - The accused psychiatrist was charged with sexually assaulting 10 complainants - Two of the complainants (RB and SM) had criminal records, which they admitted, and the Crown conceded they were not witnesses of good character - Outstanding charges against RB, including sexually assaulting another male, had been stayed - SM had been charged in the past with an assault alleged to be of a sexual nature - The accused sought further disclosure from the Crown respecting the stayed charges (reason behind the stay) respecting RB and the past charges against SM (nature of allegations) - The trial judge dismissed the application - In essence, the accused sought to cross-examine the complainants on non-consensual sexual activities in which they were alleged to having committed a sexual assault or were the victim of a sexual assault to support the allegations that RB (history of violence) would not have tolerated being sexually assaulted and must have consented to the sexual activity in the present case - Admissibility for that purpose was prohibited under s. 276(1)(a) of the Criminal Code - The trial judge stated that since the subject matter of the proposed cross-examination of the complainants involved sexual activity that was sought to be led for a prohibited purpose, it was necessary for the accused to apply under s. 276(1) to determine the admissibility of the evidence - The Alberta Court of Appeal agreed, stating that "given that the purpose of the defence cross-examination of RB was to question his credibility, s. 276(1)(b) applied so as to prohibit the defence cross-examining RB on his past sexual activity where, as here, the alleged criminality of that conduct was disputed by RB. In the result, we find there to be no merit to this ground of appeal." - See paragraphs 60 to 66.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused psychiatrist sought relief from the Crown's alleged failure to disclose all relevant information in his trial for sexually assaulting 10 male complainants - The 14 pieces of information sought included all recordings on the police "TIP" line relating to these charges - The accused argued that absent the information he could not make full answer and defence, as his ability to challenge the credibility, reliability and character of the complainants would be impaired - The trial judge dismissed the application - The Alberta Court of Appeal dismissed this ground of appeal, stating that "It is clear that at trial, the defence failed to establish the existence of the 'Tip Line' recordings at any time other than perhaps the very date of receipt, after which they were expunged. Under these circumstances, there was no basis properly laid before the trial court to conclude that the recordings existed so as to warrant an order for disclosure." - See paragraphs 31 to 37.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused psychiatrist was charged with sexually assaulting 10 male patients - One complainant (R.B.) recorded alleged misconduct with a hidden camera, transferred the recordings to his mother's and girlfriend's computers, prepared a DVD of the two recordings, and provided them to police - The DVD was admitted into evidence - A Crown expert verified that the recordings were unedited - During the trial, the accused's lawyer received an "anonymous" email and letter that ascribed improper motives to R.B. and alleged that while R.B. was in remand he had telephone conversations with his mother and girlfriend respecting falsification of the allegations against the accused - The accused wanted disclosure of those telephone conversations and for the mother's computer to be subjected to a forensic examination by the Crown (Stinchcombe) - The accused argued that the Crown had a duty to investigate and disclose that information - Alternatively, if the information was a "third party record", the accused sought disclosure under ss. 278.1 to 278.9 of the Criminal Code - The trial judge dismissed the application - The accused was asking that the Crown investigate the alleged "conspiracy" to discover potentially exculpatory evidence - The Crown had no obligation to do so - A s. 278.1 application "could" result in disclosure of these third party "records" which contained personal information - However, the accused failed to establish that the phone records were "likely to be relevant" - The anonymous letter "has no more weight than rumour or innuendo" and the accused relied on it without taking any steps to contact or identify the sender to verify the information - It was a "fishing expedition" - The court could not disagree with the Crown's suggestion that this was a "thinly veiled delay tactic" - Further, there was no basis to believe that any information on the mother's computer could be relevant - The Alberta Court of Appeal dismissed the accused's appeal, stating that "The question whether access to third-party records is governed by the O'Connor process or the s. 278.1 procedure should be determined by whether the record being sought falls within the definition of 'record' in s. 278.1. However, it is not necessary for us to address this issue any further in light of the trial judge's ruling that there was no basis to believe that the allegations were true. The Crown is under no duty to attempt to discover and disclose records when confronted with a 'pure fishing expedition'" - See paragraphs 38 to 50.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused psychiatrist was charged with sexually assaulting 10 male patients - One complainant (RB) had a lengthy criminal record for offences involving drugs and dishonesty - The Crown placed RB's criminal record in evidence - The accused was denied disclosure of the police files related to those convictions (particularly the facts behind the convictions) - The accused appealed, arguing that the trial judge failed to give adequate reasons in refusing disclosure (brief oral reasons given, followed by further reasons in a subsequent omnibus disclosure application decision) - The Alberta Court of Appeal stated that "RB's character had never been put into question. Indeed, ... , the Crown had placed his entire criminal record before the Court and had additionally asked RB questions regarding outstanding charges that he had at the time before the Court. The defence application in this regard was properly found by the trial judge to be part of a 'fishing expedition' in an attempt to show that in this particular instance, RB was a 'potentially bad, greedy, violent or deceptive person'. Interestingly, ... , there is no suggestion that the trial judge's decision to refuse disclosure of the police files in question impaired in any manner the defence ability to deal effectively with the charges that Levin was facing in this case. We agree with the trial judge's characterization that this application ... represented a 'fishing expedition' pure and simple. There is no merit to this ground of appeal and it is accordingly dismissed." - See paragraphs 51 to 59.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See third Criminal Law - Topic 4505 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The Alberta Court of Appeal refused an accused's application to admit fresh evidence on his conviction appeal where there was no reasonable possibility that the undisclosed information would have affected the reliability of the conviction and the overall fairness of the trial process was not impacted - See paragraphs 23 to 30.

Cases Noticed:

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 11].

R. v. Schmidt (B.W.) (2011), 510 A.R. 265; 527 W.A.C. 265; 2011 ABCA 216, refd to. [para. 17].

R. v. Hubek (N.M.) (2011), 513 A.R. 194; 530 W.A.C. 194; 2011 ABCA 254, refd to. [para. 18].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 20].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 20].

R. v. White (P.L.) (2010), 474 A.R. 310; 479 W.A.C. 310; 2010 ABCA 66, refd to. [para. 21].

R. v. T.G.S. (2010), 493 A.R. 346; 502 W.A.C. 346; 2010 ABCA 390, refd to. [para. 22].

R. v. Svekla - see R. v. T.G.S.

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. 22].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 17 C.R.(3d) 34, refd to. [para. 24].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 27].

R. v. McQuaid - see R. v. Dixon (S.).

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 35].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 35].

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, refd to. [para. 40].

R. v. Darwish (W.H.) (2010), 258 O.A.C. 272; 100 O.R.(3d) 57; 2010 ONCA 124, leave to appeal denied (2010), 410 N.R. 399; 279 O.A.C. 399 (S.C.C.), refd to. [para. 45].

R. v. Dias (G.) (2011), 502 A.R. 156; 517 W.A.C. 156; 2010 ABCA 382, refd to. [para. 45].

R. v. Paxton (D.W.) (2012), 531 A.R. 233; 2012 ABQB 96, refd to. [para. 45].

R. v. Gingras (1992), 120 A.R. 300; 8 W.A.C. 300; 71 C.C.C.(3d) 53 (C.A.), leave to appeal denied [1992] S.C.C.A. 348, refd to. [para. 49].

R. v. Quesnelle (V.), [2010] O.T.C. Uned. 175; 2010 ONSC 175, refd to. [para. 57].

R. v. Quesnelle (V.) (2013), 303 O.A.C. 18; 2013 ONCA 180, leave to appeal granted [2013] S.C.C.A. 223, refd to. [para. 57].

Counsel:

K.B. Molle and H. Ferg, for the appellant;

M.J. McGuire and D.J. Sopko, for the respondent.

This appeal was heard on October 11, 2013, before Fraser, C.J.A., Conrad and McDonald, JJ.A., of the Alberta Court of Appeal.

On April 23, 2014, the following memorandum of judgment of the Court was filed.