R. v. Levin, 2012 ABQB 749

Court of Queen ’ s Bench of Alberta Citation: R. v. Levin, 2012 ABQB 749 Date: 20121206 Docket: 100842400Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Aubrey Levin Accused

Restriction on Publication: 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 Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any manner.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. Identification Ban – See the Criminal Code,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner.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. Editorial Notice: The Restriction on Publication (Trial Information in Absence of the Jury) expired on January 25, 2013. The Identification Ban remains in place. _______________________________________________________ Reasons for Decision of the Honourable Justice D.L. Shelley _______________________________________________________ [ 1 ] Dr.

Levin has been charged with ten counts of sexual assault against ten different complainants. An issue has arisen which relates primarily to two of the complainants, R.B. and S.M. [ 2 ] Both of these complainants have been examined by the Crown and cross-examination was commenced. My decision in relation to this issue will impact further cross-examination of these witnesses. [ 3 ] R.B. has an extensive criminal record, in excess of 58 convictions, which he admits. R.B. admitted on the stand to being dishonest and to have committed violent offenses. The Crown concedes he is not of good character.

[ 4 ] S.M. also has a criminal record which he has admitted. [ 5 ] R.B. has outstanding charges. One of the Indictments contains 11 counts. It includes the charge of sexual assault upon a male. R.B. has admitted that he faces these charges. The charges were stayed on October 4. [ 6 ] S.M. was charged in the past with assault. The Defence advises that the assault was on someone who had allegedly sexually assaulted S.M. [ 7 ] It is the outstanding, stayed charges against R.B. and the past charge against S.M. that are in issue in this application. The application has two aspects: (

a) With respect to the stay, whether further disclosure and/or evidence is required from the Crown in relation to the circumstances surrounding the stay. R.B. in cross-examination, said he did not know the reason for the stay. The Defence requested further information. Material was provided to the Defence indicating that the charges were stayed due to the inability of the Crown to serve the complainant and other witnesses with subpoenas. The Defence argued that further information was required in order to address the issue of whether the stay was granted in exchange for R.B. ’ s testimony in these proceedings.

The Crown seeks to call the Prosecutor who entered the stay to give evidence on this point. (

b) With respect to the outstanding, stayed charges and the past charge against S.M., the Crown objected to the Defence cross-examining these complainants about the specifics of the allegations on the basis that this type of evidence is caught by

section 276 of the Criminal Code . The Crown submits that it is necessary for the Defence to bring an application under

section 276.1 if it seeks to cross-examine on these charges. [ 8 ] In relation to the stay, the parties are having further discussions concerning this issue and it will not be dealt with in these Reasons. [ 9 ] The Defence takes the position that s. 276 of the Criminal Code does not apply to the proposed line of questioning related to the stayed charges and the past charge referred to above. I have ruled that it does apply and these are my reasons for so concluding.

Section 276 of the Criminal Code states:

(1) In proceedings in respect of an offence under

section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or

section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (

a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (

b) is less worthy of belief.

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence (

a) is of specific instances of sexual activity;

(

b) is relevant to an issue at trial; and (

c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [10] In R v Darrach, 2000 SCC 46 , 2000 SCJ 46, the Supreme Court of Canada made it clear that: 33 ...

Section 276 applies to all sexual activity, whether with the accused or with someone else.

It also applies to non-consensual as wellas consensual sexual activity ... [11] On the face of it, the Defence seeks to cross-examine R.B. and S.M. in relation to non-consensual sexual activities in whichthey are either alleged to have committed a sexual assault or to have been the victim of a sexual assault for the general purpose ofattacking their credibility, contrary to ss. 276(1)(b). [12] In addition, in relation to R.B., the cross-examination to date suggests that the Defence is taking the position that R.B., beinga violent individual, would not tolerate being sexually assaulted.

If the proposed area of cross-examination is aimed at showing that R.B.is likely to have consented to any sexual activity involving Dr. Levin, then it would be inadmissible under s.276(1)(a). [13] Having concluded that the subject matter of the proposed cross-examination involves sexual activity, that is sought to be leadfor a prohibited purpose, I conclude that it is necessary for the Defence to bring an application under s.276(1) to determine whether thisevidence is admissible. In doing so it must address the issues identified in s.276(2).

Of particular concern in this case is the issue ofrelevance and the identification of an issue that brings it outside the prohibited purposes identified in 276(1). Dated at the City of Calgary, Alberta this 6th day of December, 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