R. v. Levin (A.), 2013 ABQB 31

• Judge: Shelley, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 07, 2013
• Citations: 2013 ABQB 31;(2013), 549 A.R. 264 (QB)

R. v. Levin (A.) (2013), 549 A.R. 264 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. FE.009

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

(100842400Q1; 2013 ABQB 31)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

Shelley, J.

January 7, 2013.

Summary:

The accused psychiatrist was charged with sexually assaulting 10 male patients. One of the complainants (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 applied under ss. 278.1 to 278.9 of the Criminal Code for disclosure of those telephone conversations and for the mother's computer to be seized and subjected to a forensic examination by the Crown. The accused argued that although the information sought was held by a third party, the Crown had a duty to investigate and disclose the information.

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

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 129

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

Criminal Law - Topic 130

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

Criminal Law - Topic 130

Rights of accused - Preparation of defence - Duties of Crown and police - The Alberta Court of Queen's Bench set out a several stage procedure for the "Stinchcombe"-like duty to inquire described in McNeil (SCC): "1. the accused provides evidence of 'serious misconduct' and identifies third party information that it believes is 'relevant' to that 'serious misconduct'; 2. the Crown exercises its duty to inquire and requests the third-party information; 3. if the information is not disclosed by the third party then the Crown informs the accused who may pursue that information via the O'Connor procedure; and 4. if the information is disclosed by the third party then the Crown reviews it under the Stinchcombe standard for relevance: a. if relevant or not otherwise privileged, the information is disclosed to the accused; or b. the accused may apply to have a court review the adequacy of disclosure if the accused contests the Crown's conclusion the information is irrelevant or not producible to the accused." - See paragraph 40.

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 Alberta Court of Queen's Bench dismissed the application - The accused was asking that the Crown investigate the alleged "conspiracy" to discover potentially exculpatory evidence - The Crown had not 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.

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - The Alberta Court of Queen's Bench set out the O'Connor disclosure application procedure, as restated in R. v. McNeil (SCC): "(1) The accused first obtains a subpoena duces tecum under ss. 698(1) and 700(1) of the Criminal Code and serves it on the third party record holder. The subpoena compels the person to whom it is directed to attend court with the targeted records or materials. (2) The accused also brings an application, supported by appropriate affidavit evidence, showing that the records sought are likely to be relevant in his or her trial. Notice of the application is given to the prosecuting Crown, the person who is the subject of the records and any other person who may have a privacy interest in the records targeted for production. (3) The O'Connor application is brought before the judge seized with the trial, although it may be heard before the trial commences. If production is unopposed, of course, the application for production becomes moot and there is no need for a hearing. (4) If the record holder or some other interested person advances a well-founded claim that the targeted documents are privileged, in all but the rarest cases where the accused's innocence is at stake, the existence of privilege will effectively bar the accused's application for production of the targeted documents, regardless of their relevance. Issues of privilege are therefore best resolved at the outset of the O'Connor process. (5) Where privilege is not in question, the judge determines whether production should be compelled in accordance with the two-stage test established in O'Connor. At the first stage, if satisfied that the record is likely relevant to the proceeding against the accused, the judge may order production of the record for the court's inspection. At the next stage, with the records in hand, the judge determines whether, and to what extent, production should be ordered to the accused." - See paragraph 35.

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. 13].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 16].

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. 17].

R. v. Whitebear, 2012 CarswellAlta 2097, refd to. [para. 25].

R. v. Drader (A.N.) et al. (2012), 535 A.R. 152; 288 C.C.C.(3d) 120; 2012 ABQB 168, refd to. [para. 27].

R. v. Ahluwalia (B.) (2000), 138 O.A.C. 154 (C.A.), refd to. [para. 38].

R. v. Black (W.J.) (2011), 515 A.R. 319; 532 W.A.C. 319; 2011 ABCA 349, refd to. [para. 39].

R. v. Letourneau (P.N.) (2009), 471 A.R. 198; 2009 ABPC 222, refd to. [para. 39].

R. v. Drader (A.N.) et al. (2012), 535 A.R. 185; 2012 ABQB 469, refd to. [para. 27].

R. v. Boyne (B.) (2012), 405 Sask.R. 163; 563 W.A.C. 163; 2012 SKCA 124, refd to. [para. 42].

Tarala v. Correctional Service of Canada, [2009] Sask.R. Uned. 70; 2009 SKPC 52, refd to. [para. 42].

R. v. Tarala - see Tarala v. Correctional Service of Canada.

R. v. Nepinak (N.G.H.), [2010] B.C.T.C. Uned. 1659; 224 C.R.R.(2d) 19; 2010 BCSC 1659, refd to. [para. 43].

R. v. Darwish (W.H.) (2010), 258 O.A.C. 272; 103 O.R.(3d) 561; 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. 44].

R. v. Dias (G.) (2011), 502 A.R. 156; 517 W.A.C. 156; 2010 ABCA 382, refd to. [para. 44].

R. v. Paxton (D.W.) (2012), 531 A.R. 233; 2012 ABQB 96, refd to. [para. 44].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81; 103 D.L.R.(4th) 678, refd to. [para. 51].

R. v. Fones (D.) (2009), 238 Man.R.(2d) 114; 2009 MBQB 65, refd to. [para. 54].

R. v. W.B. (2000), 134 O.A.C. 1; 49 O.R.(3d) 321 (C.A.), refd to. [para. 56].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 70].

R. v. Morelli - see R. v. U.P.M.

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 judgment orally on January 7, 2013, with written reasons filed on January 11, 2013.