R. v. Levin (A.), 2013 ABQB 52

JudgeShelley, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateJanuary 22, 2013
Citations2013 ABQB 52;(2013), 554 A.R. 208 (QB)

R. v. Levin (A.) (2013), 554 A.R. 208 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.010

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

(100842400Q1; 2013 ABQB 52)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

Shelley, J.

January 22, 2013.


The accused psychiatrist was charged with sexually assaulting nine male patients. It was a jury trial. The Crown applied to have the evidence of each patient treated as similar fact evidence. The accused opposed the application, arguing that the similarities in each patient's version of events were restricted, they all lacked credibility and were unreliable witnesses and that any similarities resulted from collusion.

The Alberta Court of Queen's Bench allowed the application. The testimony of each patient could be used as similar fact evidence, subject to the possibility, following the accused calling evidence, that collusion had occurred.

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.

Criminal Law - Topic 4353.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding collaboration or collusion - [See second Evidence - Topic 1257 ].

Evidence - Topic 1257

Relevant facts, relevance and materiality - Similar acts - To prove course of conduct - The accused psychiatrist allegedly sexually assaulted nine male patients - At issue was whether the testimony of each patient was admissible as similar fact evidence on all charges - The Alberta Court of Queen's Bench stated that "similar fact evidence may be advanced and admitted: where the facts of one offence scenario parallel those of a second, and may permit the finder of fact to conclude that the parallels between these two offences are sufficient to increase or decrease the confidence in a relevant fact or inference ... For example, in instances of alleged sexual assault with more than one complainant, similar fact evidence may be useful to corroborate complainant evidence to establish credibility ... Similar fact evidence may be admitted when its probative value outweighs all its prejudicial effect on the finder of fact ... Facts are potentially probative when 'reasonably capable of belief' ... The probative weight of similar fact evidence varies along with its relevant similarity aspects ... and need not reach a level that the net effect of the similarities is 'virtually conclusive of guilt' ... Similarity is evaluated on a more global and 'themic' scope, rather than by specific detail. ... Collusion undermines identified parallels between testimony. ... Prejudice is 'not the risk of conviction' but is 'the risk of an unfocussed trial and a wrongful conviction' ... Prejudicial effect can arise via prohibited reasoning (on a 'moral' basis), or by interfering with the focus and reasoning of the finder of fact ... Similar fact evidence and reasoning may be considered whether a trial judge concludes, on a balance of probabilities, that the potential probative value of a similar fact approach outweighs its prejudicial effect to the accused" - See paragraphs 28 to 32.

Evidence - Topic 1257

Relevant facts, relevance and materiality - Similar acts - To prove course of conduct - The accused psychiatrist allegedly sexually assaulted nine male patients - The Crown sought to admit the testimony of each patient as similar fact evidence on all charges - The accused raised the issue of collusion, both direct and indirect - The Alberta Court of Queen's Bench held that collusion formed a defence for parallels between witness evidence and that there was an "air of reality" to the collusion defence - The next step was for the court "to examine the evidence of alleged collusion and evaluate whether the evidence on hand satisfied me, on a balance of probabilities, that collusion had not occurred. If not, then I would have to instruct the jurors to review the evidence of each offence scenario in isolation." - The court stated that "while I agreed there is a potential for collusion by the witnesses in this trial, the evidence of the Crown was sufficient to dispel that possibility on a balance of probabilities" - See paragraphs 33 to 48.

Evidence - Topic 1257

Relevant facts, relevance and materiality - Similar acts - To prove course of conduct - The accused psychiatrist was charged with sexually assaulting nine male patients - The accused's defence was that the complaints were fabricated with a motive of obtaining damages in civil actions or that the alleged sexual assaults were proper medical procedures that were misinterpreted by the patients - The Alberta Court of Queen's Bench held that the testimony of each patient was admissible as similar fact evidence respecting each charge - First, the Crown met its evidentiary burden of dispelling collusion by the patients, so that was not a factor negating the potential weight of the parallels between the offence scenarios - Second, the similar fact evidence was relevant to the accused's allegation of fabrication and misinterpretation of medical procedures - The reliability of credibility of the patients was not so questionable that they were not capable of being believed - The court noted parallel aspects of the testimony of the nine patients that was more than coincidental and supported an alleged abuse strategy involving a certain target pool, a shared setting and location for the alleged sexual abuse, a common context of a sexualized doctor/patient relationship, the modus operandi used by the accused to initiate genital contact, and the accused's preferred objective of physical genital manipulation and ultimate masturbation of male patients - The potential prejudice faced by the accused was restricted - The jury would be exposed to the same evidence whether it was treated as similar fact evidence or not - That evidence was explored and tested in full - Any emotional effect on the jury was inherent in the case and not a consequence of some external, otherwise unknowable factors - Further, the jury would be instructed to compare the nine offence scenarios for similarities and difference only in relation to fabrication and misinterpretation of a medical procedure - There would be no misdirection, confusion or emotional or propensity-based bias - The probative value of the similar fact evidence outweighed any limited prejudicial effect - See paragraphs 23 to 227.

Evidence - Topic 4025

Witnesses - General - Credibility - Collusion or complicity - [See second Evidence - Topic 1257 ].

Cases Noticed:

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2002 SCC 58, refd to. [para. 9].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 9].

R. v. Stewart (M.S.) (2004), 193 B.C.A.C. 186; 316 W.A.C. 186; 2004 BCCA 56, refd to. [para. 10].

R. v. Irani (A.B.) (1996), 81 B.C.A.C. 203; 132 W.A.C. 203; 32 W.C.B.(2d) 159 (C.A.), refd to. [para. 10].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81; 148 D.L.R.(4th) 423, refd to. [para. 10].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 15].

R. v. Larsen (G.) (2012), 533 A.R. 55; 557 W.A.C. 55; 2012 NWTCA 9, refd to. [para. 15].

R. v. Dorsey (C.) (2012), 289 O.A.C. 118; 2012 ONCA 185, refd to. [para. 17].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1; 166 D.L.R.(4th) 296, refd to. [para. 23].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 28].

R. v. Carpenter (1982), 142 D.L.R.(3d) 237; 1 C.C.C.(3d) 149 (Ont. C.A.), refd to. [para. 28].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 36].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81; 109 D.L.R.(4th) 478, refd to. [para. 37].

R. v. Roberts (E.W.) (2004), 346 A.R. 325; 320 W.A.C. 325; 2004 ABCA 114, refd to. [para. 49].

R. v. Vuradin (F.) (2011), 515 A.R. 25; 532 W.A.C. 25; 2011 ABCA 280, refd to. [para. 51].

R. v. White, [1947] S.C.R. 268, refd to. [para. 54].

R. v. Jurado (2007), 73 W.C.B.(2d) 93; 2007 ONCJ 44, refd to. [para. 55].

R. v. Jesse (L.W.), [2012] 1 S.C.R. 716; 321 B.C.A.C. 49; 547 W.A.C. 49; 2012 SCC 21, refd to. [para. 193].

R. v. L.E.D. (1987), 20 B.C.L.R.(2d) 384; 3 W.C.B.(2d) 336 (C.A.), revd. [1989] 2 S.C.R. 111; 97 N.R. 321, refd to. [para. 212].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 114 D.L.R.(4th) 419, refd to. [para. 193].


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 January 22, 2013.

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