R. v. Levin, 2012 ABQB 735

Court of Queen ’ s Bench of Alberta Citation: R. v. Levin, 2012 ABQB 735 Date: 20121129 Docket: 100842400Q1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Aubrey Levin Applicant

Restriction on Publication: Identification Ban – See the Criminal Code,

section 486.4. By Court Order, information that may identify any complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. Trial information in Absence of Jury – See the Criminal Code, section 648(1). Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict.

Editorial Notice: The Restriction on Publication (Trial Information in Absence of the Jury) expired on January 25, 2013. The Restriction on Publication (Identification Ban) remains in place. _______________________________________________________ Reasons for Decision of the Honourable Justice D.L. Shelley _______________________________________________________ Background [ 1 ] This application arose in the course of a judge and jury trial. Dr. Levin applied to have me recuse myself as presiding Justice on the basis of actual bias or, alternatively, reasonable apprehension of bias. I dismissed the application.

These are my reasons for doing so. [ 2 ] The grounds upon which this application was brought are set out in detail in Dr. Levin ’ s Notice of Application. To summarize, they are that “ for an extended period of time and on numerous occasions, [I have] exhibited actual bias against Dr. Levin and ... signalled a predisposition on the merits of the bona fides of the various applications he intends to make at this trial and has made at this trial. ”

[ 3 ] Dr. Levin also suggested that my use of what he alleges to be a protected statement, made to Dr. Choy in the course of being assessed for his fitness application, also demonstrated bias.

Summary of Parties ’ Positions Defence [ 4 ] Dr. Levin took the position that I have exhibited an actual bias against him, both before and during this trial, by signalling a predisposition on the merits of the various applications brought by him or on his behalf. He argued that I should recuse myself from proceeding further in this case as a result of that bias.

In the alternative, if I had not demonstrated actual bias in these proceedings, he submitted that there is a reasonable apprehension of bias created by the cumulative circumstances of this case, and the continuation of the matter before me would compromise the appearance of fairness and integrity of the proceedings. [ 5 ] The Notice enumerated some specific examples of bias or of a reasonable apprehension of bias: • my Order of October 12, 2012, denying an application to adjourn the trial to allow Dr.

Levin, a “ documented sufferer of dementia ” , to retain and instruct new counsel, thus forcing him to act for himself in a trial by jury; • by characterizing the changes in the Applicant ’ s demeanour as being due to him feigning illness rather than as symptoms of his serious medical condition; • by inferring that Dr. Levin purposely ingested an extra few drops of his glaucoma medication in order to intentionally depress his heart rate and blood pressure, causing him to seek emergency medical assistance; • by concluding that the various applications made by Dr.

Levin ’ s previous counsel were delay tactics; • by holding Dr. Levin responsible for the fact that the various applications made on his behalf have not been supported by the evidence, when these applications were brought not by him but by his former counsel, both of whom were very experienced criminal trial lawyers; • finding that Dr.

Levin ’ s discharge of former counsel was for the purpose of manipulating the justice system in order to prevent this trial proceeding and concluding as scheduled, and as “ another tactic aimed at derailing this trial ” and “ one of a series of actions aimed at interfering with the proper conduct of this trial ” ; and • telling the jury that Dr. Levin had no cross-examination questions for Crown witnesses when he expressed his discomfort with and inability to conduct such cross-examination. [13] Dr. Levin submitted that I am biased because of my words or conduct in the following circumstances: a.

Prior to the commencement of the trial, in denying Dr. Levin ’ s application for a three month adjournment due to Dr. Levin ’ s physical health and Mr. Hepner ’ s personal circumstances, I relied on the fact that an adjournment would cause further stress for the complainants when there was no explicit evidence of this.

b. After learning that Dr. Levin was in hospital, I highlighted on the record that I had concerns about his being admitted to hospital in light of the history of the matter, including the pretrial adjournment application, the fitness application, and comments that had been made by Mr. Hepner before the trial indicating that Dr. Levin wanted the trial to be postponed. Dr.

Levin took issue with my mentioning the pretrial application for adjournment as well as the fitness application in this context because he contended that these applications were brought by experienced counsel and were properly founded on evidence. He submitted that there was no indication that the applications were frivolous or brought to manipulate or frustrate the course of justice. It was Dr. Levin ’ s position that I attributed male fides to him by making these comments about the pretrial applications. c. When Dr. Levin discharged his former counsel, Mr. Hepner and Ms.

McConaghy, I stated on the record that I was not surprised by this development and indicated that it seemed to be the latest in a series of actions that might be construed as being an attempt to delay the trial. I also indicated that I wanted Dr. Levin to be aware that the trial would proceed with or without him being represented by counsel. Dr. Levin submitted that these comments showed prejudgement on my part. He also submitted that my comments regarding his discharge of counsel were unfounded because the discharge was on the heels of Mr. Hepner ’ s failure to redact part of Dr. Levin ’ s statement.

He submitted that Mr. Hepner ’ s indication on the record that he could not find the disk containing the statement, in combination with his failure to redact, constituted a sound basis for him to discharge his counsel. d. After Dr. Levin discharged his counsel, the Crown indicated a number of reasons why they were concerned that Dr. Levin might be attempting to divert the trial. One of the concerns raised by the Crown was the possibility that Dr. Levin, being a physician, could have taken more than the prescribed amount of his medication to cause the symptoms that eventually landed him in hospital. Dr.

Levin asserted that there was no evidence that he had intentionally taken extra medicine to manipulate the course of justice. I had indicated that I shared the Crown ’ s concerns regarding Dr. Levin ’ s conduct in the proceedings. [14] Dr. Levin argued that my general reference to his discussion with Dr. Choy was an error, and asserted that I was referring to a protected statement under s. 672.21 of the Criminal Code . He referred to the Clerk ’ s notes for the October 3 proceedings, which contain references to protected statements. He took the position that the Crown had considered Dr.

Levin ’ s discussions with Dr. Choy to be protected statements on October 3 and was now taking the opposite position at their convenience. Dr. Levin argued that common sense dictates that these statements are protected statements and that in making reference to that discussion, I contravened s.672.21 of the Criminal Code . [15] Dr. Levin referred to a number of the Crown ’ s submissions in the proceedings as a basis for asserting that the Court was biased. Crown [16] The Crown submitted that all decisions made by me, including those in response to applications made by both the Crown and Dr.

Levin, have been well reasoned and were supported by the evidence. In the Crown ’ s view, the examples of bias alleged have been taken out of context, and did not accurately reflect the trial record or my reasoning in this case. In the Crown ’ s view, any reliance on its submissions as evidence for allegations of bias against me is misguided, as there is an important distinction between the Crown ’ s role in the adversarial system and the judge ’ s reasoning and dispositions. [17] The Crown highlighted the fact that this is a judge and jury trial, and the ultimate issue is to be determined by the jury.

The jury has not been prejudiced by any alleged bias, as the jury was only present for one of the situations out of which the allegations of bias arise. They also submitted that any allegation that the ultimate decision in the fitness application was a result of prejudgement is negated as it was a jury that decided Dr. Levin was fit to stand trial, not me. [18] The Crown also viewed my warning to Dr. Levin that the trial would be proceeding regardless of whether he was able to secure counsel very differently than Dr. Levin. In the Crown ’ s view, this was an attempt to ensure that Dr.

Levin was making an informed decision in discharging his counsel and that there was a fair trial. The decision to deny the adjournment requested by Dr. Levin when he fired his former counsel was not made until submissions were heard from both sides. Dr. Levin was represented on that application by Mr. Archer, who at the time had been retained on a limited basis for the purpose of bringing that application. The Crown also submits that the Court facilitated trial fairness by requiring the Crown to ensure a representative of Legal Aid was present as soon as possible after Mr. Hepner and Ms.

McConaghy were discharged, in order to arrange for the assistance of an amicus curiae . [19] The Crown also questioned Dr. Levin ’ s description of the circumstances surrounding his dismissal of Mr. Hepner and Ms.

McConaghy. In the Crown ’ s view, it is not obvious that any accused in these circumstances would have fired his counsel, weeks into a jury trial, because they failed to redact a portion of a lengthy statement to the police. The Crown disagreed with Dr. Levin ’ s assertion that Mr. Hepner was not aware of the transcript of the statement and could not locate the disk. A date was originally set by Mr. Hepner for a voir dire regarding the voluntariness of this statement and Mr. Hepner stated on the record that he was aware of the transcript but had not read every single page. The record confirms that Mr.

Hepner had discussed the contents of the statement with Dr. Levin. Mr. Hepner did not provide any specifics regarding the reasons for his dismissal and the Crown asserts that it cannot be assumed that the reason for the dismissal was the redaction error. [20] The Crown submitted that, given the conduct of the proceedings, the reasonable person would share the concerns of the Court that Dr. Levin was intentionally causing delay. [21] In response to Dr. Levin ’ s submission that I was biased in agreeing with Crown ’ s contention that Dr.

Levin may have purposely taken more than his prescribed amount of medication to induce symptoms, the Crown drew attention to the decision I rendered in dismissing the Crown ’ s application under s.598 of the Criminal Code to deem Dr. Levin to have waived his right to a jury trial by being absent from that trial without legitimate excuse: “ It is tempting to conclude that Dr.

Levin, who is a medical doctor and whose earlier applications showed is aware of the medications he takes, what he takes them for and what their side effects are, may have taken a few extra drops knowing they would depress his heart rate and blood pressure, then went to hospital knowing that the doctors there would have to run tests and observe him to determine the cause of those symptoms causing a further delay in a trial already subject to delays. But the fact remains that he was admitted. He did undergo tests, and a qualified cardiologist decided he should have a monitor installed.

So although I am concerned about the events that may have led to Dr. Levin ’ s hospitalization, I conclude that much of his absence from trial was for a medical reason which although is not as serious as we may have expected last Tuesday did result in a medical procedure that Dr. Alvarez considered appropriate in the circumstances. Bearing in mind that the Charter and Code entitlement to the trial of choice, compelling evidence must exist to justify a deemed reelection under

Section 598 . I therefore conclude that Dr. Levin has established a legitimate excuse for most if not all of his absence last week and that the Court was advised of his whereabouts from the outset ” (emphasis added). [22] In the Crown ’ s submission, it is clear from the record that I did not find that Dr. Levin caused his own medical condition. On the contrary, I denied the Crown ’ s application and concluded that Dr. Levin had in fact established a legitimate excuse for his absence. In the Crown ’ s view, the denial of their s. 598 application, despite evidence that Dr.

Levin could speak in full sentences while at the hospital and did not call Mr. Hepner to update him on his whereabouts and condition, is an illustration of my impartiality. In the Crown ’ s submission, the reasons given and the denial of that application are contrary to Dr. Levin ’ s allegations of bias. [23] In response to Dr. Levin ’ s submission that I was not permitted to refer generally to discussions between Dr. Levin and Dr. Choy, because the statements Dr. Levin made to him were protected, the Crown submitted that s. 672.21 of the Criminal Code does not apply.

This provision is only relevant when an accused is compelled to provide a statement under court order. Where an accused ’ s statement is made voluntarily, as the Crown asserts Dr. Levin ’ s statement to Dr. Choy was in this case, the provision does not apply. In the Crown ’ s view my reference to Dr. Choy ’ s opinion in making observations regarding Dr. Levin ’ s capabilities to cross-examine was not in error as this was in reliance on findings of fact made by the jurors.

Further, the Crown submitted that the reference to protected statements arose in relation to discussions concerning a publication ban and not all comments made by Dr. Levin to Dr. Choy were intended to be protected statements. [24] The Crown also pointed to a number of instances in which my comments or conduct indicated that I was alive to the issues faced by Dr. Levin and was willing to take steps to ensure that the trial was fair and that Dr. Levin was comfortable. When the initial pretrial adjournment application was denied, I made it known that Dr. Levin would be accommodated to facilitate his comfort.

This included canvassing the possibility of making medical assistance available in the courtroom and considering the appearance of Dr. Levin via closed circuit television, as suggested by the Crown. I also agreed not to sit on Fridays if this would facilitate Dr. Levin attending his

various medical appointments. [25] The Court also made it clear to Mr. Hepner that if his personal circumstances (relating to the illness of a close friend)required an adjournment at any time, this would be accommodated.

Law Regarding Recusal [26] Canadian Courts have applied the definition of bias used in American law: The words [bias or prejudice] connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate,either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal jurorwho has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant’s prior criminal activities), or because itis excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant’s prior criminalactivities that he will vote guilty regardless of the facts) R. v.

RDS, (SCC), [1997] 3 SCR 484, 118 CCC (3d) 353 atpara 105 [RDS] citing Litkey v. US, 114 S Ct 1147 (1994) at 1155. [27] An assertion of bias effectively alleges that a trial judge is not or has not been impartial as between the Crown and theaccused and has “prejudged an issue in the case, or to put it another way, she reached her determination on the basis of factors whichwere not in evidence” (RDS at para 97). [28] The Supreme Court of Canada, in Wewaykum Indian Band v.

Canada (2003 SCC 45, [2003] 2 SCR 259 [Wewaykum]),emphasized the seriousness of an allegation of bias: An allegation that a judgment may be tainted by bias or by a reasonable apprehension of bias is most serious. That allegation calls intoquestion the impartiality of the Court and its members and raises doubt on the public’s perception of the Court’s ability to render justiceaccording to law (at para 2). [29] The Court noted that “impartiality is the fundamental qualification of a judge and the core attribute of the judiciary” (at para59). [30] There is a strong presumption of impartiality.

The authority of a judge depends on this presumption and the possibility ofbias should not be carelessly evoked (Wewaykum at para 59). The burden is on the party arguing for recusal, in this case Dr. Levin, toestablish that the circumstances justify a finding that the judge must be disqualified (Wewaykum at para 59). [31] The tests for actual bias and reasonable apprehension of bias are different. An allegation of actual bias is an allegation thatthe judge approached the matter with a truly biased state of mind (RDS at para 109). Dr.

Levin concedes that actual bias is rarely anissue, as it is impossible to determine whether a decision-maker approached the matters in question with a truly biased state of mind(Wewaykum at para 62, RDS at para 109, Newfoundland Telephone Co v. Newfoundland (Board of Commissioners of Public Utilities, (SCC), [1992] 1 SCR 623, [1992] SCJ No 21 at para 22).

The Court in Wewaykum used the following quote from theEnglish Court of Appeal to articulate the difficulty of proving actual bias: “[t]he proof of actual bias is very difficult, because the lawdoes not countenance the questioning of a judge about extraneous influences affecting his mind” (Wewaykum at para 64 citing Locabail(UK) Ltd v. Bayfield Properties Ltd, [2000] QB 451). [32] Both the Crown and Dr.

Levin agree on the test for a reasonable apprehension of bias: [T]he apprehension of biasmust be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon therequired information...[The] test is what would an informed person, viewing the matter realistically and practically - and having thoughtthe matter through - conclude. Would he think that it is more likely than not that the decision maker, whether consciously orunconsciously, would not decide fairly (Wewaykum at para 60, citing Committee for Justice and Liberty v.

National Energy Board, (SCC), [1978] 1 SCR 369, 68 DLR (3d) 716 at 395 [Committee for Justice and Liberty]).

[33] The test is objective and two-fold. The apprehension of bias itself must be reasonable in the circumstances of the case, andthe person considering the alleged bias must also be reasonable (RDS at para 111). A fully informed reasonable observer must scrutinizethe record to make a determination of whether a judge was unfair or impartial R v Bolianatz, 2012 ABCA 238, [2012] AWLD 4087 atpara 19 [Bolianatz]). [34] The grounds for the apprehension must be substantial and the bias is not to be assessed by a “very sensitive or scrupulousconscience” (Committee for Justice and Liberty at 395).

The threshold for a finding of an apprehension of bias, due to the strongpresumption of judicial impartiality, is high (RDS at para 113, Wewaykum at para 76). It is essential that a finding of bias be carefullyconsidered as it questions judicial integrity of not only the judge it is alleged against, but of the entire administration of justice (RDS atpara 113). This high threshold can be met only with cogent evidence that demonstrates a judge’s actions give rise to reasonableapprehension of bias (RDS at para 117). [35] The test for a reasonable apprehension of bias is not to be applied in a vacuum.

The analysis is highly fact specific and is tobe conducted within the entire context of the case: Allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates asound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overridingprinciple that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation.

Rather it mustbe considered in the context of the circumstances, and in light of the whole proceeding (RDS at para 141). [36] Context is of supreme importance in an assessment of whether there is a reasonable apprehension of bias (Wewaykum at para77). In assessing whether a decision maker was biased in any particular case, a reasonable observer is deemed to know all of thecircumstances involved (RDS at para 152). [37] The fact that Dr. Levin’s trial is before a jury is also relevant to the determination of bias. The ultimate question of Dr.Levin’s guilt is for the jury, not me, to determine.

Of all of the allegations of bias that have been made by Dr. Levin, only one of them,namely that I told the jury that Dr. Levin had no questions for three witnesses, involves comments made by me in front of the jury. Theremainder of the allegations all relate to circumstances that arose during voir dires, when the jury was not present.

My alleged commentsand actions in these circumstances, without the jury present, will not affect the jury’s reasoning in deciding the case (R v Trang, 2002ABQB 1130, 17 Alta LR (4th) 358 at para 150). [38] It is without question that judges are to be held to the same high standard of impartiality regardless of whether a trial is to beconducted with a jury or by judge alone. Whether the trier of fact is a judge or jury, however, is still relevant to the context surroundingallegations of bias as the role of the trial judge in a jury trial is very different than in a trial by judge alone.

My role in this trial is tofacilitate the overall conduct of the trial, not to weigh the evidence to make a determination of whether Dr. Levin is guilty on thecharges. Any allegation of bias must be assessed with this contextual factor in mind R v Giroux, [2001] OTC 981, 52 WCB (2d) 407[Giroux] at para 45, R v Forslund, 2007 BCSC 338, 73 WCB (2d) 78 at para 26, R v Trunzo, 2012 MBQB 211, [2012] MJ No 289 atpara 22). [39] Part of the role of a trial judge is to ensure that the trial proceeds expeditiously and without unreasonable delay.

The OntarioCourt of Appeal in R v Felderhof ( (ON CA), 180 OAC 288, 68 OR (3d) 481), makes this clear: It would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trialjudge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner. I do not see this poweras a limited one resting solely on the court’s power to intervene to prevent an abuse of its process.

Rather, the power is founded on thecourt’s inherent jurisdiction to control its own process (at para 40).A fully informed reasonable observer, cognizant of the method inwhich this trial has proceeded, would agree that the decisions I made, and the comments within those decisions, that are now alleged tobe biased, were made in the interests of moving this trial forward without further delay. [40] The extensive references made by Dr. Levin to the Crown’s submissions at various points during the proceedings in allegingbias cannot be used to support the application for recusal.

Judges are presumed to have the ability to hear submissions or evidence andnot allow it to affect their reasoning. In Bolianatz, bias was alleged against the trial judge on appeal based on prejudicial comments thatwere made by the accused’s counsel at the time he withdrew. In denying the appeal on this ground, the Court stated:

Judges take oaths to behave and reason as judges. Judges are inevitably called upon to make preliminary findings of fact or even allow evidence subject to objection which objection may be effectuated later because the earlier stage ruling might be said to be “ embryonic ” : see e.g. R. v. Blackman , 2008 SCC 37 , [2008] 2 SCR 298 at para. 30 . Example abound as to judges being expected to distinguish between what is admissible or inadmissible, or what is prejudicial: see e.g. Svekla , at paras. 11 to 13.

Judges may well exclude confessions of guilt or other powerful evidence and still press on to hear the other evidence. Judges may be asked to sever counts or accused persons and even hear all the evidence before deciding on severance. Judges may be asked to make non-suit decisions and then later adjudicate finally: R. v. Singh , 2008 ABCA 79 , [2008] A.J. No. 192 (QL) . Judges may be asked to consider motions which may be frivolous or abusive. They may be forced to try to regulate proceedings in the face of rebellious self-represented and even contumacious individuals: see e.g. R. v.

Phillips , 2003 SCC 57 , [2003] 2 SCR 623 . [41] Indeed, the breadth of information that might incidentally be given to a judge on a motion by counsel to withdraw was described by the Supreme Court in Cunningham v. Lilles , 2010 SCC 10 , [2010] 1 SCR 331 at paras. 34 to 51 . In compact terms, the Supreme Court said at para. 34: “ Delicate matters frequently come before courts ” (at paras 19-20). [42] Any submissions made by the Crown regarding Dr. Levin ’ 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. [43] Several of the comments pointed to by Dr. Levin involve statements I made while denying the adjournment applications by Dr. Levin throughout these proceedings. It should be noted that trial judges have wide discretion in dealing with adjournment applications and adjournment decisions are afforded a considerable amount of deference ( R v Toor , 2001 ABCA 88 , 277 AR 350 at para 15 ).

In Bolianatz , the Alberta Court of Appeal decided that the trial judge ’ s decision to deny an adjournment was not biased, despite prejudicial comments made by defence counsel about his client, as there were sufficient reasons for the trial judge to deny the adjournment based on the history of the case. The Court stated, at paragraph 15: In light of the extensive history of delay of the case, the trial judge decided to proceed with the trial and deny another adjournment.

Even without considering the improper comments of formal counsel, there was ample justification for denying the latest adjournment request. [44] Trial judges are warned not to accede to motions for recusal where the facts do not raise a reasonable apprehension of bias. Making rulings, on evidentiary basis, that may favour one party more often than the other does not make a judge biased. The functioning of our judicial system would be jeopardized if negative findings or adverse rulings in and of themselves were evidence of a reasonable apprehension of bias ( Giroux at para 38).

In Giroux , Atkin J. relies on the following to illustrate this point: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour (Re: JRL (1986), 161 CLR 342 (Australia HC) ) [45] The dangers of unnecessary recusal were described in detail by the Alberta Court of Appeal in Boardwalk Reit LLP v.

Edmonton (City) ( 2008 ABCA 176 , [2008] 8 WWR 251 ( Boardwalk ) . In that case the Court warns that giving objecting parties the benefit of the doubt and requiring judges to withdraw in doubtful situations must not become the law (at para 94). The Court identifies dangers that arise when judges recuse themselves based on unfounded grounds. Premature recusal of trial judges enables judge shopping, causes delay and expense, and tarnishes the appearance of the justice system (at paras 95-103). Law Regarding Protected Statements [46] Dr. Choy was the Crown expert who evaluated Dr.

Levin ’ s fitness to stand trial and provided evidence to the Court in that respect. Dr. Levin suggests that I have misused statements by Dr. Levin to Dr. Choy which are protected under

section 672.21 of the Criminal Code , which provides:

672.21

(1) In this section, “protected statement” means a statement made by the accused during the course and for the purposes ofan assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyoneacting under that person’s direction. Protected statements not admissible against accused

(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent ofthe accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence. Exceptions

(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of (

a) determining whether the accused is unfit to stand trial; (

b) making a disposition or placement decision respecting the accused; (c) [Repealed, 2005, c. 22, s. 12] (

d) determining whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence,where the accused is a female person charged with an offence arising out of the death of her newly-born child; (

e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or amental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mentalcapacity for criminal intent into issue, or if the prosecutor raises the issue after verdict; (

f) challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a materialparticular with a protected statement that the accused made previously; or (

g) establishing the perjury of an accused who is charged with perjury in respect of a statement made in any proceeding. [47] An “assessment” is defined in

section 672.1(1) as “an assessment by a medical practitioner or any other person who has beendesignated by the Attorney General as being qualified to conduct an assessment of the mental condition of the accused under anassessment order made under

section 672.11 or 672.121, and any incidental observation or examination of the accused”. [48] A “disposition” is defined in

section 672.1(1) as “an order made by a court or Review Board under

section 672.54 or an ordermade by a court under

section 672.58”. No order has been made under sections 672.54 or 672.58 of the Criminal Code. [49] There is relatively little case law interpreting

section 672.21. The Supreme Court of Canada considered the exception insection 672.21(3)(

f) in R v G(B), (SCC), [1999] 2 SCR 475 [G(B)], but in that case it was accepted, and clear, that thestatement provided was a protected statement as the accused had been ordered to attend an assessment. The protected statement wasfound to flow from a prior inadmissible confession, and attracted Charter protections. The Crown in that case wished to rely on thecontent of the statement made to the psychiatrist to challenge the accused’s evidence at trial. [50] In R v Feldberg (1999), 1999 CanLII 19062 (AB KB), 252 AR 158 [Feldberg], Justice Veit considered the application of

[50] In R v Feldberg (1999), (AB KB), 252 AR 158 [Feldberg], Justice Veit considered the application ofsection 672.21 to an accused who was under no legal order to cooperate with a psychiatrist. In that case, Mr. Feldberg made a statementto a psychiatry resident following a prosecutor’s request that an informal assessment be done to determine whether a formal fitnessassessment ought to be ordered by the Court. Mr. Feldberg was in custody and, while the resident did not inform Mr. Feldberg that hewas under no obligation to cooperate, Mr.

Feldberg was informed the discussion was not confidential. [51] In determining that the statement was a protected statement, Veit J at paragraph 19 referred to the definition of “assessment”which includes “any incidental observation”. At paragraph 21, Justice Veit discusses how

section 672.21 should be interpreted broadly toinclude statements which were “Parliament’s obvious intention” to protect. [52] In R v Generoux (2000), (ON CA), 140 OAC 165 at para 12 [Generoux] an accused consented to anassessment. That consent was reduced to a court order. The Crown sought to use the evidence from the assessment to prove the essentialelements of the offence.

The Ontario Court of Appeal concluded that the accused consented to the use of the information provided in theassessment only for the determining fitness and capacity for criminal responsibility. [53] In R v White, 2002 SKQB 73 at 29, 216 Sask R 224 [White], the Saskatchewan Court of Queen’s Bench dealt with whetherstatements made by the accused to a psychiatric nurse and a letter the accused wrote to his family with the help of the nurse while in ahospital where he was held for a court-ordered psychiatric assessment amounted to protected statements.

The Court referred to G(B),Feldberg, and Generoux before concluding at paragraph 38 that

section 672.21 “has been interpreted in a broad manner by the courts.”Nevertheless, at paragraphs 39-45 the statement and letter were deemed admissible because the nurse was not involved in the accused’spsychiatric assessment, was not acting under the direction of the hospital’s psychiatrists or psychologists in assisting the accused and wasnot part of the accused’s assessment. [54] The Alberta Court of Appeal, in R v N(RA), 2001 ABCA 312 at para 11, 293 AR 342 [N(RA)], found the protection undersection 672.21 is to protect against an accused being conscripted to provide evidence. [55] In R v SP, 2010 ONCA 696, 270 OAC 190 [SP], the Ontario Court of Appeal had the opportunity to consider the use ofpurported protected statements following conviction.

At paragraphs 26-30, focussing on the particular wording of the provision, theCourt determined that the protection is removed once an “accused” becomes an “offender” on conviction, so a protected statement couldbe used at a dangerous offender hearing. The same conclusion is arrived at in R v Mousseau, 2003 ABQB 521, 351 AR 23. Analysis [56] I will deal first with the allegation that I used a protected statement and that doing so is evidence of bias.

My exact wordswere: In the course of hearing that evidence, we heard evidence about your ability to engage and recall in quite a bit of detail matters,particularly your discussions with Dr. Choy. I did not refer to recite the content of any particular statement made by Dr. Levin to Dr. Choy. [57] It is clear that a protected statement arises when there is some state compulsion. In Feldberg, the statement came at thestate’s initiation, while the accused was in custody, in anticipation that there might then be a formal order under which the accusedwould be legally compelled to co-operate. [58] In Dr.

Levin’s case, the assessment arose as a result of Dr. Levin’s contention that he was unfit to stand trial. Dr. Levin wasnot in custody. There was no court order compelling his attendance. Rather, Dr. Levin met Dr. Choy at an airport hotel, after having beendriven there by his defence counsel. Dr. Levin is a highly intelligent individual who was for many years a forensic psychiatrist workingwith patients who attended his office under court order. Dr.

Levin, unlike the 20 year old accused in Feldberg, would have, on the basisof his many years involvement in conducting court ordered assessments, an understanding of the process and his right not to provideinformation.

[59] In Generoux , the Court had granted an order which compelled the accused to co-operate with the assessment. Again, Dr. Levin attended with Dr. Choy voluntarily. He would have been aware of his rights based on his lengthy career as a forensic psychiatrist and the fact that his counsel arranged for and took him to the appointment. He was under no state compulsion to provide evidence against himself, the mischief which is sought to be addressed in s.672.21. [60] Dr. Levin ’ s extensive discussions with Dr. Choy do not fall within the plain reading of s.672.21 because there was no order requiring him to co-operate with Dr. Choy. I have considered whether the expansive

interpretation given to s.272.21, in cases such as Feldberg , might nonetheless capture the entirety of the discussion between them. I agree with Justice Veit ’ s comments in Feldberg that the provision should be given a wide and liberal

interpretation in order to afford protection to those who face the prosecutorial power of the state. However, the provisions must still be grounded in the ordinary meaning and context of the words chosen by Parliament. [61] I therefore conclude that the entire conversation between Dr. Levin and Dr. Choy was not a protected statement under s.672.21. I will therefore address Dr. Levin ’ s contention that the Crown admitted that his conversations with Dr. Choy were a protected statement during the course of discussions in Court on October 3 and 4.

In connection with this application, portions of the digital recording of the October 3 and 4 proceedings were played in Court. It is clear that the issue of whether comments made to Dr. Choy might be protected statements, and that the Crown would seek a ban on publication in relation to anything I found to be a protected statement, was addressed on those dates. It is very clear that there was no declaration that the entire conversation between Dr. Choy and Dr. Levin would be a protected statement. To the contrary, counsel agreed that, if either party found any portion of Dr.

Choy ’ s evidence to refer to a protected statement, either party could apply to have it declared a protected statement. Then on October 4, Crown and Defence counsel agreed that I ought to declare any statements made by Dr. Levin in the course of the fitness assessment regarding his possible defences or the specifics related to the incidents underlying the charges to be protected statements, subject to a continuing publication ban. The reason why these particular aspects of Dr. Levin ’ s discussions with Dr.

Choy constituted protected statements is obvious – those comments might be self-incriminating or might restrict Dr. Levin ’ s ability to make full answer and defence. [62] In some cases, the use of a physician ’ s evidence arising from a protected statement may be inextricable from the protected statement itself. This arose in R v Bennight , 2010 BCSC 1332 . In that case, the question was whether the whole of a doctor ’ s report was inadmissible or if

part could be saved by removing information based on statements of the accused. Bennight suggests that reference could be made to a doctor ’ s report so long as reference to the accused ’ s protected statements can be removed. In that regard, in this case I made no reference to any specific comments made by Dr. Levin to Dr. Choy. I made a single sentence reference in broad terms to Dr. Levin ’ s ability to communicate with Dr. Choy, and went on to provide other examples of Dr. Levin ’ s ability to communicate.

No details of the conversation were revealed and no observer in the courtroom, hearing this sentence, would have had any idea what was discussed between Dr. Levin and Dr. Choy. [63] If I am wrong in my conclusion on this point, the question that must be addressed is whether making this brief reference is evidence of bias. I acknowledge that improper use of a protected statement would constitute a legal error. But a legal error per se does not constitute bias or give rise to a reasonable apprehension of it.

As with the other examples raised in this application, the prime consideration is whether my words or actions have exhibited bias or demonstrated a reasonable apprehension of bias. Bias is not founded by a response to events which occur or even an opinion held. It is based on a pre-disposition for or against an idea or person. Furthermore, bias, or a reasoned belief that bias exists, can exist whether or not someone can point to a legal error.

Legal errors in favour or against a particular party, particularly a series of them, may be indicative of bias, but that is neither conclusive nor necessary before a finding of bias. [64] I see no objective indicia that my brief general reference to Dr. Levin ’ s discussions with Dr. Choy could lead a reasonable and informed observer to conclude that I was biased against Dr. Levin. This brief general reference was one of a number of other matters referred to in my reasons for concluding, based on those observations and events over a number of weeks, that Dr.

Levin was attempting to delay the start of or effect the termination of this trial. I will move then to the other matters raised by Dr. Levin. [65] My comments concerning Dr. Levin and my perception that his actions were aimed at delaying or preventing the start of the trial and to halt the trial once it was underway, were made following several pre-trial conferences, my observations and the hearing of evidence in rather lengthy adjournment and fitness applications, and several days of trial. [66] In denying Dr. Levin ’ s adjournment application following his firing of Mr. Hepner and Ms.

McConaghy, I identified a series of events and observations that led me to the impression that Dr. Levin was attempting to delay the trial. These included comments made during pre-trial conferences. Early on, Mr. Hepner had raised the issue of Dr. Levin ’ s health, indicating that he would have to speak to Dr. Levin ’ s doctors. After that, he indicated he had spoken to the doctors and the trial would be proceeding. Not long after, an application was brought for an adjournment on the basis of his physical health. I stated that there was a lack of medical evidence to support Dr.

Levin’s pre-trial adjournment application and referred to my reasons in denying that application. Similarly, I referred to pre-trialdiscussions that initially raised some concern about Dr. Levin’s fitness to stand trial, which were almost immediately followed up withconfirmation there was a lack of evidence to support such an application, followed fairly shortly thereafter by the bringing of a fitnessapplication when the adjournment application was denied.

The fitness application was decided by a different jury than the trial jury.Although the decision was not made by me, in my view, the jury was correct in its determination as there was little support for thatapplication. Dr. Levin suggests that because these applications were brought by his former counsel, it is not open for me to conclude thatthey may have been brought for the purposes of delay. I disagree.

I consider the weakness of the evidence led in support of theapplications to be a factor that I can consider, along with all of the other indicia referred to by me, in forming the impression that Dr.Levin did not wish the trial to start or to continue. [67] As the Crown pointed out, before getting to the point of making these comments, I had dismissed the Crown’s applicationunder s.598 of the Criminal Code, rejecting its argument that Dr. Levin had been absent from trial without legitimate excuse. The Crownpoints to other actions taken prior to that date which they suggest show I was willing to accommodate Dr.

Levin’s health issues and areinconsistent with a bias against him. [68] Dr. Levin argues that my comments concerning the variability of his demeanour and the other factors I considered asdemonstrating his ability to continue the trial and to cross-examine were indicative of bias. These were the reasons underlying mydismissal of his adjournment application and I am of the view that these observations and factors were germane to the issues before me. Ireferred to numerous factors which led me to believe that Dr. Levin’s cognitive abilities, including his ability to analyse various mattersas reported by Dr.

Choy, and to disagree with his previous counsel as well as other medical professionals (such as Dr. Parekh), were wellestablished. I noted Dr. Levin’s lengthy experience with the justice system, including testifying and being cross-examined as an expertwitness in hundreds of matters, observing other witnesses (both expert and non-expert), being cross-examined in many trials (includingthis one) and other matters as support of my conclusion that Dr. Levin was in a far better position as a self-represented individual thanmany other individuals who represent themselves in these courts. [69] Dr.

Levin also alleges bias on the basis of the period in which he was self-represented. His allegation is that the fact I did notadjourn the trial demonstrates my unfair disregard to his right to full answer and defence. [70] Canadian caselaw makes very plain that a defendant has no absolute right to new counsel in a proceedings after thatdefendant fires his or her lawyer. In R v Cai, 2002 ABCA 299 at para. 42, 317 AR 240 the court observed that: ...

To allow an accused thus to spurn counsel and plead for mercy on grounds of lack of counsel would set a very dangerous precedent.To do so in the name of fairness would be very contrary. ... [71] What is important is that the trial be fair, though not necessarily perfect or the most advantageous from the perspective of theaccused: R v Lyons, (SCC), [1987] 2 SCR 309 at 362, 44 DLR (4th) 193; R v Harrer, (SCC), [1995] 3SCR 562 at para. 45, 128 DLR (4th) 98.

A requirement that a particular defendant have counsel so as to provide full answer and defencerelates to the nature of that specific defendant. [72] For example, in R v Harris, 2009 SKCA 96, 331 SaskR 283, Justice Richards observed at para. 30 that a self-representedaccused did not require certain judicial assistance for a fair trial as the accused was an intelligent individual who had extensive in-courtexperience as a consequence of a 12 year and 40 offence history in the criminal courts. [73] Similarly, in R v Wills, 2010 ONCA 128 an offender requested a hearing be adjourned as he was not represented: para. 1.That was denied given the context of the unrepresented litigant: Although the appeal involves the most serious criminal offence, with particularly serious consequences for the appellant (lifeimprisonment with no chance of parole for 25 years), we cannot say that the appellant is incapable of effectively presenting his appealwithout the assistance of counsel.

The appellant is a well-educated man with long experience as a police officer in the criminal justicesystem. He presented an organized argument on this application, including references to the leading authority and test on a s. 684application. [74] Dr. Levin is no stranger to the courtroom. He has frequently testified as an expert witness. He is familiar with the cross-

examination process, as he has himself been its subject. As for his capacity to advance and argue his own case, I note his extensive argument, including reference to various legal principles, that he made on October 24. [75] Dr. Levin is different from the defendant in R v Rushlow , 2009 ONCA 461 , 96 OR (3d) 302 , who was “ out of his depth ” when cross-examining witnesses. That accused person had no legal training, had not completed high school, and had no prior in-court experience.

That was a reason why it was unfair for the accused in Rushlow to not have had counsel to assist in his defence. [76] My conclusion is and was that Dr. Levin had the capacity to cross-examine witnesses during the relevant period. He chose not to do so. [77] In any event, Dr. Levin was self-represented for less than one week. During that time, three witnesses provided evidence before the jury, all on one day. The Crown has offered, and has made arrangements, to recall those witnesses so that Dr. Levin ’ s new counsel can cross-examine them. If there was any prejudice to Dr.

Levin, it will be cured by the recall of the witnesses and by their cross- examination by counsel. A mistrial should not be declared, even when an error is made, where that error is capable of being and is cured. [78] Dr. Levin submits that I required explicit evidence to support one of the comments made in denying Dr. Levin ’ s original adjournment application – specifically, that I had no evidence that an adjournment would cause further stress for the complainants.

In that regard, I think I am entitled to rely on common sense in concluding that an adjournment causes stress for witnesses who are expecting to testify in proceedings. Further in that regard, these comments were made, both then and at other points later in the proceedings, in connection with my view that it is proper to have regard to, and to balance, the interests of all the parties interested in the trial: the accused, the witnesses (including complainants), the members of the jury, the Crown, and the public at large. [79] In relation to the suggestion that I ignored Mr.

Hepner ’ s concerns regarding the health of a close friend of his, I note that Mr. Hepner had indicated, when he raised this concern, that he had no way of knowing how long his friend might live and that it could be days, weeks or months. I indicated that I would accommodate his need to attend to related matters, if and when required, as did the Crown. At no time after that, up to his dismissal, did Mr. Hepner indicate that this situation required his absence from the trial. [80] In relation to the issue of Dr.

Levin ’ s discharge of his former counsel and allegations that he was justified in doing so, following the hearing of this matter, the Defence indicated that it would like to separate off this issue and deal with it in the context of a subsequent mistrial application that it intended to bring. Therefore, that will be dealt with to a greater extent in a subsequent decision. However, at the time of dismissal, it was not apparent to me, nor would I consider it obvious to an observer, that Mr.

Hepner had done anything that ought to lead to his dismissal. [81] I conclude that the record contains evidence in support of the comments and decisions alleged to be indicative of bias. I did not commence this trial with any pre-conceived notion or position in relation to either Dr. Levin or the Crown. In the course of rendering decisions or making rulings, I am obliged to provide reasons. That those reasons may be unfavourable to Dr. Levin does not by itself constitute bias or reasonable apprehension of a bias.

I am satisfied that a reasonably well-informed person, looking at the impugned comments in the light of the whole proceedings and not in isolation, knowing all of the circumstances involved, would not conclude that I was biased or have a reasonable apprehension that I was biased against Dr. Levin. [82] I therefore dismissed the application. Dated at the City of Calgary, Alberta this 29 th day of November, 2012.

D.L. Shelley J.C.Q.B.A. Appearances: W. Wister D. Sopko for the Crown E. C. Archer K. B. Molle for Dr. Levin