R. v. Levin, 2012 ABQB 769

Court of Queen ’ s Bench of Alberta Citation: R. v. Levin, 2012 ABQB 769 Date: 20121217 Docket: 10084200Q1 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 Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any manner.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 By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner.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 Madam Justice D.L. Shelley _______________________________________________________ Applications [ 1 ] These Reasons relate to two applications for a mistrial brought by Dr. Levin.

[ 2 ] Dr. Levin first sought a mistrial on the grounds of: (

a) insufficient time to permit new counsel to properly prepare; (

b) incompetence/ineffectiveness of former counsel; (

c) receipt of prejudicial evidence by the jury; (

d) denial of his right to be present for trial; and (

e) continuation of the trial in his absence. More recently, Dr. Levin sought a mistrial based on further allegations of incompetence or misconduct made against his former lawyer, Mr. Hepner. [ 3 ] A number of events occurred prior to trial and after its commencement (on October 10). Although most of them have been referred to by counsel or me in relation to previous applications in this matter, they are relevant to the issues raised in these applications and also provide the contextual background and the foundation to the conclusions I have reached in these applications. Background [ 4 ] Dr.

Levin was arrested on March 23, 2010 in relation to a number of sexual assault allegations made by adult males who had been his patients, often pursuant to a Court Order. Following his arrest, Dr. Levin provided a video-taped statement to police. During that interview, Dr. Levin was shown a DVD that had been surreptitiously filmed by one of the complainants ( “ RB ” ). During the interview, Dr. Levin was advised that a copy of this DVD, another DVD taken by RB (the two DVDs being referred to as the “ RB DVDs ” ), some photos of RB ’ s genitals, and other evidence obtained by the police would be provided to Dr.

Levin ’ s counsel. The RB DVDs were surreptitiously created by RB over the course of two appointments he had with Dr. Levin. They show Dr. Levin touching and manipulating (in various ways) RB ’ s genitals, on one occasion for approximately 15 minutes. [ 5 ] Although I am not certain of the exact date when Dr. Levin ’ s counsel received this material, I know that it was provided and it is my understanding that this occurred before the preliminary inquiry which was held in June 2011. Following the preliminary inquiry, a new Indictment was issued (on July 4, 2011) charging Dr.

Levin with ten counts of sexual assault alleged to have occurred at various times between October 1999 and March 2010. [ 6 ] The trial was then scheduled, with input from both Dr. Levin ’ s then counsel and Crown counsel. It was scheduled for three weeks commencing October 1, 2012. In addition, counsel requested one day in the week preceding the trial for the purposes of an application, intending to address the voluntariness of Dr. Levin ’ s statement to the police.

That application was scheduled for the day prior to the day on which the jury would be selected. [ 7 ] When I became aware that I had been assigned as the trial judge, I arranged a pre-trial conference with counsel. The focus of the first discussion with counsel related to whether sufficient time had been scheduled for the trial. Counsel expressed concern that three weeks might not be sufficient for the trial and that one day might not be sufficient for the application dealing with voluntariness. Mr. Hepner also raised some concern that Dr.

Levin ’ s physical health was poor as a result of a number of medical conditions that he had had for some time. Mr. Hepner indicated that he was going to speak with Dr. Levin ’ s doctors and would advise further.

[ 8 ] Additional trial time was scheduled and the pre-trial application was scheduled for an additional day. [ 9 ] I arranged a further pre-trial conference with counsel. I was advised that Mr. Hepner had spoken with Dr. Levin ’ s doctors and that the trial would be proceeding. [ 10 ] A number of other pre-trial conferences were held in the month leading up to trial. While discussions were ongoing, Mr. Hepner raised a concern with respect to Dr. Levin ’ s fitness to stand trial. He indicated he was going to canvass this further and advise at the next pre-trial conference. Mr.

Hepner then advised that he did not have evidence in support of an application related to fitness but that he intended to proceed with an application for adjournment based on Dr. Levin ’ s physical condition. [ 11 ] It was decided that the application for adjournment would be scheduled for the week prior to commencement of the trial. Mr. Hepner advised that the two days required for the application concerning voluntariness would no longer be needed, as that application was not proceeding. [ 12 ] The adjournment application proceeded. I dismissed the application for the reasons given at the time I did so.

Some of the evidence heard at that application will have relevance to these applications and will be dealt with further in these Reasons. Almost immediately following the rendering of my decision on the adjournment application, Mr. Hepner indicated that he would be bringing an application concerning Dr. Levin ’ s mental fitness to stand trial. This advice was forthcoming very close to the trial date. As is his election under the Criminal Code , Dr. Levin indicated that he wished a separate jury selected for that purpose. [ 13 ] The fitness jury found Dr. Levin fit to stand trial.

As with the evidence heard in connection with the adjournment application concerning his physical health, the evidence heard in the fitness application has some relevance to the issues raised in these applications and will be dealt with to some extent later in these Reasons. [ 14 ] At the commencement of the trial, a number of exhibits were marked for identification purposes, pending being marked as full exhibits through appropriate witnesses. One of them was the DVD of the interview Dr. Levin gave to the police. Dr. Levin was present in court when Mr.

Hepner indicated that the taped interview would be entered as an exhibit by agreement, with redactions having been agreed to, when the DVD of the interview was entered as an exhibit, and during the viewing of the DVD. At the time of the viewing, a transcript was provided as an aid to the jury, that transcript having been provided to the Defence on or about November 22, 2010, just as the DVD had been provided well in advance of trial. Viewing of the DVD was interrupted on October 15 for reasons that will be expanded upon later.

The original transcript was taken from the jury members approximately two minutes after counsel rose to raise the concern in relation to the DVD and transcript. [ 15 ] Also on October 15, the Crown called Dr. Grober to provide expert evidence concerning various medical procedures as they related to various actions of Dr. Levin disclosed on the RB DVDs as commented upon by Dr. Levin in his interview with the police. Following his testimony, Court adjourned for the day. [ 16 ] As had been discussed and agreed to by counsel in Court that day, that evening I received email correspondence from counsel.

It included a case citation and confirmed that Crown and Defence counsel had agreed that the DVD of the police interview and related transcript would be replaced with new copies from which there would be a further portion redacted. It also contained the Crown and Defence request that I provide an instruction to the jury regarding the replacement exhibits. [ 17 ] The following morning, Dr. Levin was not in court. Mr. Hepner had advised that he had received a telephone call from Mrs. Levin the preceding evening advising that she was taking Dr. Levin to hospital. Mr.

Hepner further advised that he was unable to reach either Dr. or Mrs. Levin that morning and had no further information for the Court. As a result, Court adjourned for an hour so Mr. Hepner could continue his efforts to obtain further information concerning Dr. Levin ’ s whereabouts and condition. Following a brief adjournment and Mr. Hepner ’ s inability to obtain further information, at the request of the Crown, an order was issued to have a member of the Calgary Police Service attend at the hospital where Mr. Hepner believed that Dr.

Levin had been taken for the purposes of seizing any related medical records and, to the extent possible, to try to obtain information concerning Dr. Levin ’ s current whereabouts and condition. This was done primarily so that I could advise the jury of any need for a further adjournment and the likely length of same.

[ 18 ] The trial was adjourned for the balance of the week following advice from a member of the Calgary Police Service that Dr. Levin had been admitted to the hospital and that he might require a pacemaker. [ 19 ] When Court reconvened the following Monday, the Crown indicated its intention to make an application pursuant to s. 598 of the Criminal Code and, in connection with the application, to call the cardiologist who had treated Dr. Levin at the hospital the previous week. Following receipt of that testimony, Mr. Archer approached the Bar.

He indicated that he had been retained on a limited retainer basis by Dr. Levin. He said it was urgent that he speak to Mr. Hepner and therefore another adjournment was called. [ 20 ] When Court resumed, I was advised by Mr. Hepner that Dr. Levin wished to discharge him and Ms. McConaghy as his counsel. During the course of fairly lengthy discussions that involved Mr. Hepner, Mr. Archer, Mr. Wister and myself concerning Dr. Levin ’ s firing of his counsel, Mr.

Archer ’ s instructions to apply for an adjournment, and the consequences that might flow from these events, a number of comments were made that have some relevance to the applications: a. Mr. Hepner confirmed that Dr. Levin had met with Ms. McConaghy for over two hours the preceding day and that he had had “ quite a conversation ” with Dr. Levin that morning. b. Mr. Hepner indicated that it would be very difficult for him to continue “ in light of [Dr. Levin ’ s] comments ” . c. Mr. Hepner confirmed that he had explained to Dr.

Levin that firing counsel would not necessarily result in an adjournment, and that he might have to represent himself. d. Mr. Archer indicated that Dr. Levin was not asking for a lot of time and that he just needed a few days to instruct counsel and find out how to move forward. e. Mr. Archer indicated that there were aspects of the breakdown of the solicitor-client relationship that needed to be explored, and that he was not there to make a bunch of allegations without an opportunity to canvass them. f. Mr. Hepner made several references to Dr. Levin having no confidence in the way Mr.

Hepner was conducting the file and to a dispute in the manner of the conduct of the file. He made specific reference to having made certain decisions since the trial began, relying on his experience in making those decisions. He indicated that Dr. Levin did not agree with some of the decisions. g. Mr. Hepner indicated that he had no knowledge of Dr. Levin ’ s disagreement until that morning. h. In response to my request to Mr. Hepner that he consider staying on as amicus curiae , he responded: “ I don ’ t know how I could do that, given what he wants. ... Would Dr. Levin listen to my instructions this time?

Would he listen to what I have to say? Would he agree or disagree? ” i. Mr. Archer advised: “ Dr. Levin alleges that his previous counsel neither followed his instructions nor sought his instructions with regard to certain matters involving the conduct of the trial and the admissibility of evidence. ” j. Mr. Archer further took the position: “ With regard of the circumstances of Dr. Levin discharging his counsel, ... we need an adjournment in order that those can be properly brought before the Court because they have serious ramifications here ” . k. In connection with a transfer of the file from Mr.

Hepner to new counsel, Mr. Archer said:

... Mr. Hepner, I cannot think of a better person to be dealing with in the circumstances; but he is going to have to be consulted in the matter as well. But it is not appropriate to be putting – he needs a filter. There has to be someone between Dr. Levin and Mr. Hepner ... l. In response to my requesting clarification of his comment concerning bringing new counsel up to speed and my understanding that new counsel would have to consult with Mr. Hepner because he had all the background information and he was familiar with the evidence, having been involved in the case since the outset, Mr.

Archer indicated that “ typically, in these kinds of situations, when files are transferred from one lawyer to another, the lawyer has to consult. And this is – this case is no different ” . [ 21 ] Mr. Hepner refused to act as amicus curiae . In connection with his refusal, he stated: ... as was alluded to by Mr. Archer, there are conflicts as to conduct and [Dr. Levin] has lost confidence in me. It ’ s almost an impossible position to carry on, because we are not at ad idem on certain issues of conduct. We haven ’ t been til now.

There are issues, and – I mean I have – I would have a number of conflicts as counsel to do and conduct myself in a manner which I did not conduct myself. I don ’ t want to pre-judge. I don ’ t know what ’ s coming, but as I say, I was surprised this morning. ... And I use the vernacular to many clients, I drive the bus with respect to defences. I do what I think I have to do what ’ s right, that ’ s ethical, that ’ s proper, and that ’ s in the best defence of the client. I don ’ t let the client drive the bus. I – and I ’ ve been doing that since I ’ ve started. I ’ ve been trained that way.

This is a case where he has – him and I have – are not at ad idem on certain aspects of decisions I ’ ve made, and that ’ s very – and fair enough. He ’ s entitled to do that. [ 22 ] Following the withdrawal of Mr. Hepner and Ms. McConaghy as Defence counsel, Mr. Archer indicated his belief that it was important that he put something on the record regarding Dr. Levin ’ s concerns with Mr. Hepner. He indicated that Dr. Levin was alleging that a conflict was not disclosed to him. Mr. Archer indicated that he could not get into the specifics of that but that Mr. Hepner was aware of the specifics. In response, Mr.

Hepner indicated that “ being aware of that, I certainly have a different view ... I would find it very difficult if not impossible or untenable to stay on even as amicus curiae in light of the allegation that Dr. Levin is making. ” [ 23 ] Following the dismissal of Mr. Hepner and Ms. McConaghy and my refusal to grant Dr. Levin an adjournment for the reasons I gave then (and which are relevant to issues raised in this application and so will therefore be discussed further later in these Reasons), Dr. Levin took the opportunity to address the Court for a period of approximately ten minutes. Dr.

Levin did not read his remarks, although he occasionally glanced down to what appeared to be some notes. However, his remarks were made while looking directly at me and were made continuously. At no time did Dr. Levin appear to be confused or unable to communicate. To the contrary, Dr. Levin spoke in a clear, articulate and logical manner. He spoke about the importance of trial fairness, about the right to counsel of one ’ s choice and about the importance of cross-examination in defending oneself against allegations of criminal behaviour. [ 24 ] In his capacity as a forensic psychiatrist, Dr.

Levin testified hundreds of times as an expert witness in court. He has also been present in court during cross-examination of many witnesses, both expert and non-expert. He was present at the preliminary inquiry for cross-examination of various witnesses in this case. [ 25 ] During the course of the fitness application, Mrs. Levin confirmed that Dr. Levin had spent months going over the disclosure materials, making notes of the discrepancies and issues he saw in the evidence.

She assisted him by downloading the material onto their home computer and providing administrative assistance to him in his preparation for trial. Analysis [ 26 ] I will deal with each of the grounds in turn. (

a) Insufficient Time for New Counsel to Prepare [ 27 ] With regard to the claim that Dr. Levin ’ s new counsel were not given sufficient time to prepare, it is alleged that, as a result, Dr. Levin ’ s ability to make full answer and defence has been compromised.

[28] Dr. Levin discharged his former counsel, Mr. Hepner and Ms. McConaghy, on October 22nd. Mr. Archer had been retainedthe previous evening for the limited purpose of applying for an adjournment to allow Dr. Levin to find and instruct new counsel. Prior tothis, the jury had heard from nine witnesses. [29] After the adjournment application was dismissed on October 23, three witnesses were called and examined by the Crown onOctober 25 while Dr. Levin was self-represented.

He was given the opportunity to cross-examine these witnesses, but said he could notdo so, as he was not a lawyer and not trained to do so. [30] I recognized that Dr. Levin is not a lawyer. He was, however, a very experienced forensic psychiatrist who had been anexpert witness in hundreds of trials. He is very familiar with both direct examination and cross-examination and I was satisfied that hecould cross-examine those witnesses. He had observed Mr. Hepner cross-examine the witnesses at the Preliminary Inquiry. He had,according to Mrs.

Levin, spent months reviewing the disclosure and other materials in preparation for trial. In addition, arrangements hadbeen made for the appointment of amicus curiae to cross-examine certain other witnesses. [31] By October 29, Dr. Levin had fully retained Mr. Archer (who was joined by Ms. Molle). Mr. Archer asked for a two-weekadjournment so that he could prepare to continue the trial.

The following week, in mid-trial conferences with counsel, he indicated hisintention to bring up to four applications: the first of the two mistrial applications dealt with in these Reasons, an application for recusal,an application to sever counts, and an application to re-open the issue of the voluntariness of Dr. Levin’s statement. [32] There is a great deal of case law dealing with the issue of mistrial for refusing an adjournment. The Alberta Court of Appealaddressed this issue in 2010, in R v White, 2010 ABCA 66, 474 AR 310.

In that decision, the Court said the following: 14 It is undisputed that whether an adjournment or a postponement should be granted is a discretionary matter for the trial judge:Manhas v. The Queen, (SCC), [1980] 1 S.C.R. 591; R. v. Barrette, (SCC), [1977] 2 S.C.R. 121; R. v.Darville (1956), (SCC), 116 C.C.C. 113 (S.C.C.); R. v. G. (J.C.) (2004), (QC CA), 189 C.C.C.(3d) 1 (Q.C.C.A.) at para. 8 ("J.C.G."), leave to appeal ref'd 341 N & S 197 (NOTE) (S.C.C. Mar 31, 2005). 15 Such judicial discretion is reviewable on appeal if it has not been exercised judicially.

The test for appellate review is whetherthe trial judge has given sufficient weight to all relevant considerations: Reza v. Canada, (SCC), [1994] 2 S.C.R. 394,citing Friends of the Oldman River Society v. Canada (Minister of Transport), (SCC), [1992] 1 S.C.R. 3, at pp. 76-77,per La Forest J.; J.C.G. at para. 9. 16 When asked for a postponement, it is appropriate for a trial judge to consider relevant circumstances such as the gravity of thecharges, the number of previous postponements and the consequences of a postponement for the Crown and for the accused: J.C.G. atpara. 12.

The decision whether or not to grant an adjournment must be made in the light of the realities of each case consistent with theinterests of justice: J.C.G. at para. 13. Whether it is just to deny a trial adjournment to an unrepresented accused depends upon manydifferent factors, including the personality and skills of the accused. 17 The Nova Scotia Court of Appeal reviewed the principles applicable in circumstances where an unrepresented accused appliesfor an adjournment so that he or she can be represented by counsel at trial in R. v. Beals (1994), (NS CA), 126 N.S.R.(2d) 130, 352 A.P.R. 130.

Hallett J.A. listed nine propositions (at para. 29): 1. The decision whether to grant or refuse a request for an adjournment because an accused is not represented by counsel in acriminal trial is a discretionary one but one that must be based on reasons well-founded in the law. (Barrette v. R., (SCC), [1977] 2 S.C.R. 121). 2. An accused has a constitutional right to a fair trial. Representation by counsel at trial is generally essential to a fair trial if anaccused is charged with a serious offence and a complex trial can be anticipated. R. v. Rowbotham (1988), (ON CA),41 C.C.C. (3d) 1).

3. The right to counsel at trial is not absolute. R. v. Richard and Sassano (1992), 55 O.A.C. 43); there is no constitutional right to berepresented by a state funded counsel at trial. R. v. Rowbotham, supra, and R. v. Prosper (1992), (NS CA), 113 N.S.R.(2d) 156 N.S.C.A. 4. The right of an accused to retain counsel to represent the accused at trial must be exercised honestly and diligently so as not todelay a scheduled trial. R. v. Richard and Sassano, supra). 5. Each application for an adjournment on the ground that the accused will not have counsel at trial must be decided on its facts.Relevant facts to be taken into account by the trial judge are: (

a) whether or not there have been prior adjournments due to the unavailability of counsel and the accused was warned well inadvance of trial that the trial would be proceeding on the scheduled date with or without counsel. R. v. McGibbon (1988), (ON CA), 45 C.C.C. (3d) 334); (

b) the accused's criminal record which reflects on the accused's degree of familiarity with the criminal justice system and legal aidprogrammes R. v. Richard and Sassano, supra; (

c) whether the charge against the accused is simple or complex which fact impacts on the critical question whether or not theaccused can get a fair trial without counsel Barrette v. R., supra (

d) the public interest in the orderly and expeditious administration of justice. R. v. B.(J.E.) (1990), (NS CA), 52C.C.C. (3d) 224 and R. v. Richard and Sassano, supra); (

e) if the accused has been refused legal aid and when the refusal was communicated to the accused. 6. As a general rule an accused should not be refused an adjournment if the fact that he is without counsel on the scheduled trialdates is not his fault but that of his counsel and he had no complicity in the matter. (Barrette v. R., supra). 7.

As a general rule an accused should be refused an adjournment if he has not acted diligently and honestly in attempting to obtaincounsel and it can be inferred from the circumstances that he failed to avail himself of the opportunity to do so for the purpose ofdelaying the proceedings. (Manhas v. R. (1980), (SCC), 17 C.R. (3d) 331). 8.

On an appeal from a refusal it would appear that a court of appeal will not find the learned trial judge erred notwithstanding hisreasons may not be fully articulated if the record discloses evidence from which it can be inferred that the absence of counsel wasbrought about by the accused for the purpose of delaying the proceedings. (Barrette v. R., supra; Manhas v. R, supra; R. v. Richard andSassano, supra). 9.

The scope of review by an appeal court of a refusal, notwithstanding it involves the review of the exercise of a discretionarypower, is wide as the consequences of a refusal are to deprive an accused of his right to be represented by counsel. On appeal theappellant must show that in refusing the adjournment the trial judge deprived the appellant of his right to make full answer and defenceand thus made an error in principle which constituted a miscarriage of justice. (Barrette v. R. and Manhas v. R., supra). [33] Slightly later in 2010 the issue rose again.

In R v Devera, 2010 ABCA 154, 482 AR 389, a different panel of the Court ofAppeal again cited the “Beals factors” with approval: 21 The Court held that the test for assessing whether or not discretion was exercised judicially is whether the trial judge gavesufficient weight to all relevant considerations: para. 15.These include balancing the facts of the case (including the gravity of thecharges, the number of previous postponements and the consequences of further postponements) with the interests of justice: para. 16.When determining whether it is just to deny a trial adjournment to an un-represented accused, the following factors from R. v.

Beals(1993), (NS CA), 126 N.S.R. (2d) 130, 352 A.P.R. 130 (N.S.C.A.) at para. 29 should be considered ... [34] Discretion in relation to adjournments must be exercised judicially. Relevant considerations in connection with anadjournment application include:

1) the gravity of the charges against an accused; 2) the number of previous adjournments, and who initiated each one; 3) the consequences of an adjournment for the accused; 4) the consequences of an adjournment for the Crown; 5) the stage of these proceedings; 6) the evidence that has been adduced in support of the application, as well as earlier applications; and 7) the nature and weight of the public interest in either granting or denying an adjournment. I refused Dr. Levin ’ s requested adjournment when he fired his former counsel.

I granted the requested two-week adjournment to allow new counsel to prepare to take over Dr. Levin ’ s defence. The above considerations are relevant to mistrial applications as well as adjournment applications. Both require a balancing of similar interests. [ 35 ] The charges against Dr. Levin are very serious. If he is found guilty, the potential consequences are serious. There are also serious consequences to Dr. Levin, the Crown, the witnesses, and the jury as a result of the declaration of a mistrial. The charges were laid and the preliminary inquiry was held a considerable time ago. Dr.

Levin is entitled to a speedy trial. Dr. Levin chose a jury trial and twelve members of the public have committed a considerable period of time to hearing this matter, which is well underway. The Crown has arranged for witnesses from other parts of the country and the United States and has had to re-schedule witnesses many times as a result of the continuing delays in the trial.

There is considerable public interest in this trial, given the nature of the charges and the circumstances in which they arose. [ 36 ] In addition, adjournments have been formally or informally or indirectly sought, and other matters have arisen to delay this trial. For example, Dr. Levin brought the pre-trial application for an adjournment based on his physical health. The evidence did not support the application and I dismissed it. Then it was argued that Dr. Levin was unfit to stand trial due to dementia. This was shortly after Mr.

Hepner had indicated that there was not sufficient evidence to bring such an application. I note that the expert witness who was called to testify on behalf of Dr. Levin had not conducted a fitness assessment before and had been contacted by Dr. Levin himself shortly before the application. The jury dismissed the application. [ 37 ] It is clear to me, based on the evidence from the adjournment application and the fitness application, comments made by Dr. Levin ’ s former and current counsel, and my observations of Dr. Levin throughout, that he is not only fit to stand trial, but has been actively engaged in it.

He sits at a table near counsel with his own binders of materials, taking notes, and he actively and frequently confers with counsel and provides instructions to them. The threshold to be found fit to stand trial is low. I was then satisfied, and remain of the view, that Dr. Levin ’ s current mental abilities place him far above that threshold. [ 38 ] Another incident that caused delay was the hospitalization of Dr. Levin. It was submitted by Dr. Levin that he suffered a serious impairment of his health on this occasion.

In his words, he had to be “ resuscitated, ” and that “ life-saving ” measures had to be taken. The medical evidence, however, contradicted that description. He suffered a temporary drop in his blood pressure and heart rate caused by a drug he was taking for glaucoma. Test results and the evidence of Dr. Alvares (given in connection with the Crown ’ s s. 598 Criminal Code application) confirmed that, following this temporary situation, Dr. Levin ’ s results were borderline normal and that ongoing monitoring would be conducted.

This evidence, although received approximately three weeks after the initial adjournment application, was supportive of the conclusion reached by me on the adjournment application. Amongst the reasons given for denying the original application was my concern that Dr. Levin ’ s evidence on that application was speculative. Specifically, his family doctor, Dr. Botha, was concerned that he might be in or going into acute renal failure or congestive heart failure and for that reason he suggested additional testing was required.

He suggested that his then condition was unstable and that he required a period of three months in order to investigate further and stabilize his condition. However, approximately three weeks later the tests taken at the hospital and Dr. Alvares ’ testimony were not supportive of that position. [ 39 ] I accept that Dr. Levin has a number of health problems. He has had them for some time and they have been managed by his physicians. For that reason, the trial

schedule has been modified so that he can make arrangements for ongoing testing and medical appointments. [ 40 ] This brings me to the termination of former counsel ’ s services. Mr. Archer appeared on a limited retainer basis to speak to

Mr. Hepner and to make an application for an adjournment. It was very clear that this came as a surprise to Mr. Hepner and Ms. McConaghy. I advised Dr. Levin that if he went ahead with his plan to terminate his counsel, two experienced and well-respected criminal defence lawyers, he could find himself proceeding with the trial self-represented. Mr. Hepner also confirmed that he had provided this same advice to Dr. Levin. Despite this, he terminated Mr. Hepner ’ s and Ms.

McConaghy ’ s services, and I had no choice but to accept their application to withdraw in the circumstances. [ 41 ] For the reasons I gave at that time, I concluded that Dr. Levin ’ s termination of counsel was an attempt to derail the trial. I therefore refused his request for an adjournment. It is significant that at most Dr. Levin was self-represented for six days. During that time, evidence was given by only three witnesses, all relatively brief and on one day.

All three have now either been recalled for the purposes of cross-examination by counsel or will be prior to the close of the Crown ’ s case. [ 42 ] It is also significant that Mr. Archer asked for and was granted two weeks ’ time to prepare to continue the trial. Instead of returning ready to continue with the trial or to request and justify requiring further time to prepare, he commenced, or indicated his intention to commence, four applications, all of which would have the effect of further delaying the trial. He had already filed the first of the mistrial applications. Further in that regard, Mr.

Archer took the position that the jury could not hear any evidence while any of these applications were outstanding. I asked for his authority in support of that proposition and proceeded to

schedule the initial mistrial application for November 12, the following Tuesday morning. [ 43 ] Tuesday morning Mr. Archer insisted that the recusal application that he had by then filed had to proceed in advance of the mistrial application that the Crown and I had spent the weekend preparing for. The jury was sent home again, even though Mr. Archer had not provided me with any authority in support of his position that they could not hear evidence while his applications were outstanding. I reiterated my request for that authority and proceeded to hear the recusal application.

The application was completed in the afternoon. The Crown offered to return at 8:00 p.m. so that Mr. Archer could obtain the authorities he had previously said he would provide in support of his submission that the hearing of evidence would have to be delayed until his applications had been heard and decided. At that point Mr. Archer declined the offer to adjourn for that purpose, indicating that he did not think he would be able to locate such authorities.

Thereafter I indicated that, pursuant to my trial management function, I would be scheduling applications outside normal court hours to the extent possible so that regular court hours could be used for the hearing of evidence. [ 44 ] The Defence had two years to prepare for trial. Granted, Mr. Archer has not had two years to prepare, but Dr. Levin ’ s former counsel did and Mr. Archer would have had the benefit of conferring with them had he chosen to do so. Materials were delivered to Mr. Archer by former counsel and possibly also by Dr. Levin, who had had some materials delivered to him by Mr.

Hepner in the courtroom. In addition, the Crown has provided additional copies of documents and offered assistance to the Defence in locating materials in the electronic disclosure package. Furthermore, I have indicated my willingness to provide, and have provided, additional preparation time to Defence counsel to prepare for cross-examination. I also adjourned the trial for a three and a half day period to allow Mr. Archer and Ms.

Molle to prepare for and to travel to the United States with the RB DVDs and related exhibits (spy watch camera, laptop hard-drive and spy watch manual – all collectively referred to as the “ RB Exhibits ” ) for examination, even though Mr. Archer declined to explain why it was necessary for both of them to do so. [ 45 ] I am satisfied that a mistrial is not required on the basis of the time given to new counsel to prepare to take over Dr. Levin ’ s defence.

Counsel were asked for and were given two weeks initially and have since then been given additional time to prepare for cross- examination, to travel to have the RB Exhibits examined and for other reasons as requested. Mr. Archer knew when he accepted the retainer that he was stepping into a jury trial that was already underway. He indicated that he would transition the file from Mr. Hepner and obtain information from Mr. Hepner. In addition, the Crown offered the services of their legal assistant to assist in locating disclosure in the electronic disclosure package.

Additional hard copies of disclosure materials have been provided when Mr. Archer indicated he did not have them (or could not locate them) and additional time was given for him to review those materials in advance and during the process of cross-examination. I find that new counsel has been given sufficient time to prepare. In any event, the appropriate request, where counsel requires more time, is not to request a mistrial but to request additional time and justify the need for same. They have frequently done so since being retained and I have given them more time on numerous occasions. (

b) Incompetence or Misconduct of Former Counsel [ 46 ] Dr. Levin has made allegations against Mr. Hepner as a basis for seeking a mistrial. Specifically, he alleges that his ability to make full answer and defence has been jeopardized by Mr. Hepner ’ s failure to have an expert test the RB Exhibits. Dr. Levin further submits that Mr. Hepner agreed to the admission of statements given by Dr. Levin to the police following his arrest, contrary to his consent and instructions. He alleges further, in that regard, that Mr.

Hepner admitted to doing so without having read the transcript of the police interview or being able to locate the disc containing it. He alleges that Mr. Hepner continued to act for him on the morning of

October 22 after Dr. Levin had discharged him. [47] Lastly, Dr. Levin alleges that Mr. Hepner was in a conflict of interest and that he had failed to advise him of the conflict. Thesource of the alleged conflict is that Dr. Levin understands that Mr. Hepner has acted on behalf of the Calgary Police Association. Dr.Levin expresses his concern that Mr. Hepner’s failure to get the RB Exhibits tested was as a result of his accepting the evidence of thepolice expert, presumably because he has acted for the Association. Dr. Levin takes the position that, should he remain bound by thesedecisions of Mr.

Hepner, a miscarriage of justice will result. [48] The RB DVDs were entered through RB. The Crown called Constable Kraan to give expert evidence as to the operation ofthe spy cam watch and the continuity of the RB DVDs. The Crown also called Dr. Begault, an expert who had enhanced the audio on aportion of one of the RB DVDs at the Crown’s request. At this point in the trial Dr. Levin was represented by Mr. Hepner. Dr. Levin’scurrent counsel, Mr. Archer, takes the position that in order to properly and effectively cross-examine the Crown expert, Mr.

Hepnershould have had the RB Exhibits analyzed by an expert of his own, in order to determine whether the RB DVDs had been tampered with.Dr. Levin submitted in the initial mistrial application that locating a properly qualified expert could take months and that the Crownexpert might have to be recalled. However, since that application was filed on November 8, Defence has retained the services of such anexpert, who examined the RB Exhibits between November 28 and 30. [49] Dr. Levin further submits that Mr.

Hepner consented to the admission of his statement to police absent his consent to do so.The voluntariness of the statement was initially set to be addressed during a voir dire prior to trial. The application concerningvoluntariness was withdrawn prior to the commencement of the trial and, as I indicated earlier, Dr. Levin was present at thecommencement of the trial when counsel confirmed that the statement and a transcript would be entered by agreement with certainportions redacted. Although Mr.

Archer initially indicated that he might be bringing an application to re-open the issue of thevoluntariness of the statement, he did not bring an application in that regard, nor does Dr. Levin’s affidavit filed in support of the secondmistrial application deal with the issue of voluntariness. Rather, it deals with Mr. Hepner’s and Ms. McConaghy’s failure to redact aportion of the statement. That portion is 39 lines in a 230-page transcript. There is no doubt that the lines ought to have been redacted andDefence counsel and Crown counsel admitted that they failed to catch and redact this passage.

I will deal further with the effect of the39-line passage in subsection “c” below. However, within the context of this section, Dr. Levin argues that he was justified interminating Mr. Hepner’s services partly as a result of his error in not noticing and redacting this portion. [50] It is clear from his allegations that Dr. Levin is taking the position that Mr. Hepner was ineffective or incompetent inproviding legal advice and that he was in a conflict of interest, an ethical concern. [51] In making the initial mis-trial application, Dr. Levin did not waive his solicitor client privilege with Mr. Hepner.

In his recentapplication he did so. He also filed an affidavit setting out his allegations against Mr. Hepner, which I have outlined above. In theaffidavit, Dr. Levin also confirms that “It was always my understanding that at all times Mr. Hepner Q.C. was the decision maker on alllegal issues pertaining conduct of my defence” [sic]. [52] The vast majority of cases where allegations of ineffectual representation by counsel are alleged arise when there is anappeal, based upon fresh evidence of mishandling of the trial due to incompetent counsel, resulting in a miscarriage of justice.

The freshevidence test is set out in R v Palmer, (SCC), [1980] 1 SCR 759, 106 DLR (3d) 212. It is highly unusual to see thisargument raised mid-trial upon retention of alternate counsel.

Counsel were unable to refer me to any cases dealing with this situation.While I do not rule out the possibility of declaring a mistrial in such circumstances, there must be clear grounds to do so and evidencethat the consequences arising from the incompetent or unethical conduct of counsel, if established, cannot be cured in any manner shortof a mistrial. [53] In bringing such an application, there is a presumption in law that counsel is competent: R v McQuaid (1997), 1997 NSCA50 , 156 NSR (2d) 81 at para 212, 33 WCB (2d) 319 (NSCA), affirmed (SCC), [1998] 1 SCR 244, 222 NR243.

The onus lies upon the party seeking to prove the incompetence to prove it: R v GDB, 2000 SCC 22 at para 27, [2000] 1 SCR 520;R v Travis, 2012 ABQB 629 at para 43. [54] The fact that an accused switches counsel mid-trial does not afford him the opportunity to, in essence, rebuild his defencefrom the ground up. Court time and judicial resources are scarce. To allow an accused to restart a trial solely because he has parted wayswith his original counsel would cause significant consequences to the administration of justice. As was stated by Master Funduk inLenko v Grabler, [1988] AJ 470 (ABQB)

It does not follow that just because a party changes counsel the current counsel can say he wants to "recanvass" what was done. ThePlaintiffs' present counsel may think that the previous counsel did a less than adequate job of examining the Defendant. However, that isnot a ground for a second kick at the cat. [55] It is not enough for an applicant to simply allege that the incompetence of his former counsel was such that a mistrial must bedeclared.

In R v Elliott (1975), (ON CA), 28 CCC (2d) 546 (ONCA) an accused sought to set aside his guilty plea,essentially questioning the propriety and competence of his former defence counsel, the Crown and the lower court. The accused’scurrent counsel did not seek evidence from either the former counsel or the crown in making his application. In dismissing theapplication, the Court noted as follows at paras 6-7: ...

Counsel for the defendant frankly admitted that he had made no inquiries or investigations from either the defence counsel at trial orthe Crown Attorney and that he was not prepared on his own responsibility to say that the allegations of the defendant concerning theconduct of his counsel at trial were supportable. He further admitted that he had no reason to believe that if inquiries were now made ofthe defence counsel at trial, the result would support the allegations.

I consider it most unfortunate that any counsel, carried away by his enthusiastic support of his client's cause, should permit himself, byreason of his client's instructions, to make allegations inferring unjust conduct on the part of the Court, or unprofessional conduct on thepart of brother solicitors without first satisfying himself by personal investigations or inquiries that some foundation, apart from hisclient's instructions, existed for making such allegations.

His duty to his client does not absolve a solicitor from heeding his duty to theCourt and to his fellow solicitors. [56] The reasoning in R v Elliott was adopted by our Court of Appeal in R v LSC, 2003 ABCA 105 at paras 29-31, 13 CR (6th)390: The Crown argues that it is not merely the actions of trial counsel that must be considered, but the reasons behind those actions. Itsubmits that the approach taken by counsel might reflect a deliberate strategic choice, or the constraints of ethical and professionalresponsibility.

It urges that the lack of evidence from trial counsel should be fatal to the appellant's position. We note an increasing tendency on the part of appellate counsel to allege ineffective representation at trial without affording trialcounsel the opportunity to respond to that allegation and explain the trial strategy, limitations and instructions. An attack on a lawyer'scompetence strikes at the heart of that lawyer's practice and professional reputation.

Kelly J.A. of the Ontario Court of Appealconsidered this issue in the following terms: I consider it most unfortunate that any counsel, carried away by his enthusiastic support of his client's cause, should permit himself, byreason of his client's instructions, to make allegations inferring unjust conduct on the part of the Court, or unprofessional conduct on thepart of brother solicitors without first satisfying himself by personal investigations or inquiries that some foundation, apart from hisclient's instructions, existed for making such allegations.

His duty to his client does not absolve a solicitor from heeding his duty to theCourt and to his fellow solicitors. R. v. Elliott (1975), (ON CA), 28 C.C.C. (2d) 546 at 549. It would be inappropriate for this court to rule on whether the representation provided by trial counsel was ineffective or inadequate,absent an opportunity for input from that counsel. The nature of the onus on the accused also supports the need for evidence from trial counsel. There is a: strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.

The onus is on the appellantto establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdomof hindsight has no place in this assessment. R. v. G.D.B., [2000] 1 S.C.R. 520, [2000] S.C.J. No. 22, 2000 SCC 22 at para. 27.

Absent evidence revealing that the approach of trial counsel was not the result of client instructions, strategic choices, or ethicalconstraints, it may be very difficult for an appellant to overcome this presumption of competence. [57] There must be evidence upon which allegations in support of an application for a mistrial are based.

As noted in the oft-citedcase of R v W(W) (1995), (ON CA), 100 CCC (3d) 225 at paras 17-18, 84 OAC 241 (Ont CA) When a party tenders fresh evidence on appeal, a determination of "the interests of justice" requires an examination of the grounds ofappeal raised, the material tendered and the remedy sought. Here, the appellants allege that the conduct of their counsel in acting for bothof them at trial led to a miscarriage of justice. The conduct of trial counsel, including allegations of a conflict of interests, can be raisedfor the first time on appeal: R. v.

Garofoli (1988), (ON CA), 41 C.C.C. (3d) 97 at pp. 150-52, 43 C.R.R. 252 (Ont.C.A.), reversed on other grounds (SCC), [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161; R. v. Silvini (1991), (ON CA), 5 O.R. (3d) 545, 68 C.C.C. (3d) 251 (C.A.). When such allegations are raised, the court must consider the conduct ofcounsel and determine whether it resulted in a miscarriage of justice.

Since the court is charged with the responsibility of quashingconvictions which, because of the conduct of counsel, constitute a miscarriage of justice, it must follow that the interests of justice mayrequire that the court consider material extraneous to the trial record but relevant to counsel's conduct. ... This material may include discussions between counsel and the clients and other pertinent information not found within the trialrecord.

If the appellant is to have an adequate opportunity to advance a claim based on trial counsel's conduct, and if the Crown is tohave an adequate opportunity to refute that claim then an appellate court must be able to receive material which permits a full and fairassessment of the conduct in question. This court has shown a willingness to receive such material in cases where trial counsel's conductis challenged on appeal... [58] The principle in R v Elliot has been previously adopted by this Court.

In R v Gillis, 2003 ABQB 713, 58 WCB (2d) 405, VeitJ held, at para 28: There is an additional principle relating to the withdrawal of guilty pleas which has not been explicitly discussed by counsel but whichhas been referred by them implicitly.

Although I could not find any Alberta decision in which the principle was cited, I suggest that theprinciple applies in Alberta in the same way that it applies elsewhere in Canada: when the application to withdraw a guilty plea is basedon allegations dealing with the conduct of a previous lawyer, the current lawyer has a duty to investigate the allegations and ascertainwhether there is any foundation to the allegations beyond the client's statement. ... [59] In R v Campeau, 2006 SKPC 105, 72 WCB (2d) 237 one of the co-accused became dissatisfied with his counsel anddischarged him.

In dismissing the accused’s new counsel’s application for a mistrial, the Court held as follows at paras 11-12 [emphasisadded]: It is apparent from the authorities that, quite apart from the issue of professional incompetence, there may be other factors which cancause a court to conclude that a mistrial is essential in order to preserve procedural fairness.

Here, while one can agree that there ispotential disadvantage to the accused in current counsel not being present from the outset to observe the demeanour and mannerisms ofall the witnesses, it is not a matter which should cause this court to declare a mistrial. One would hope that [new counsel] will be able toderive sufficient information from the transcript, in consultation with his client, to overcome whatever concerns which may arise fromnot being present at the outset to assess witness demeanour.

In that regard, it is not apparent the courts do, as a matter of course, order amistrial whenever an accused changes counsel in mid-trial, and particularly in the absence of compelling circumstances. There is nothingwhich has occurred to this point in the proceedings which suggests the accused's right to a fair trial has been compromised by anything,including the dismissal of one lawyer and the retaining of another. If it were otherwise, this court would not hesitate to order a mistrial.

Beyond that, however, the claims of inadequate cross-examination and insufficient pre-trial preparation or consultation are clearly issuesof alleged professional incompetence. On the authorities, therefore, the onus is on the accused to establish on balance with evidence thathis former counsel was professionally incompetent and it resulted in a miscarriage of justice.

Unfortunately, that evidence was notforthcoming herein, and in its absence, there is no basis for the court to conclude that the grounds for a mistrial exist, based upon thatallegation. [Emphasis added.] [60] It is not uncommon for an accused to second-guess decisions made by counsel either during or after trial. As noted by theOntario Court of Appeal in R v Archer (2005), (ON CA), 202 CCC (3d) 60 at paras 131-132, 203 OAC 56 (OntCA):

Most of the claims of ineffective representation come down to complaints about tactical decisions made by trial counsel.

For example,counsel on appeal argues that trial counsel should not have moved to exclude the appellant's exculpatory statement to police, should havecalled more character witnesses, should not have complimented the Crown in the course of his submissions, should not have denigratedhis own ability before the jury, should have called additional evidence to demonstrate that certain Crown witnesses were hostile to theappellant, should have produced the report from the Centre of Forensic Sciences, and should not have told the Crown of his intention tocall character evidence, thereby allowing the Crown to elicit potential bad character evidence during examination-in-chief.

As Iunderstand this last point, counsel argues that he should have forced the Crown to call the bad character evidence in reply at the end ofthe trial. The tactical decisions referred to in the paragraph above, and others complained about on the appeal, were explained by trial counsel inhis affidavit and cross-examination. Like most trial counsel in a jury case, this trial counsel had many decisions to make. Some of themwere difficult. As with most tactical decisions, different lawyers may have made different decisions.

That does not mean that any ofcounsel's choices demonstrate incompetence. [Emphasis added.] [61] More recently, in R v Travis, 2012 ABQB 629 at para 43, Yamauchi J commented as follows while dismissing an appealpartially grounded in an argument of incompetent representation,: Equally interesting is the fact that the appellant, on whose shoulders the onus rests, has not provided this Court with any evidence thatwould help this Court in determining the appellant's trial counsel's trial strategy.

While this Court is mindful of aspects of solicitor andclient privilege, that privilege must yield to the appellant's rights once he is convicted and is challenging his counsel's competence.[Emphasis added.] [62] Tactical or strategic decisions are, generally, considered to be within the purview of defence counsel: R v GDB, at para 35; Rv White (1997), (ON CA), 32 OR (3d) 722 at para 90, 99 OAC 1 (Ont CA). There exists a volume of authorityaddressing the decision of counsel to call - or not to call - certain witnesses.

This Court located a number of authorities wherein anaccused alleged incompetent representation based upon the failure of counsel to tender an expert witness: see for example, R v Dooley, 2009 ONCA 910, where counsel did not call expert evidence regarding cause of death, and R v Donovan (2007), 53 MVR (5th) 82, 74WCB (2d) 685 (Ont SCJ), in which counsel did not call a toxicologist.

I note that in both of these cases, former counsel were given theopportunity to explain their decision, as guided by their trial strategy, to the courts. [63] In R v Krnic, [2009] OJ No. 2392 (QL) (Ont SCJ); affirmed 2010 ONCA 568, the accused sought an order for a mistrial inorder to adduce fresh evidence, namely, the booking photograph taken at the time he was charged. The accused argued that thephotograph was essential to the issue of identification.

The accused was seeking a mistrial so that his new counsel could produce thephoto and use it to cross-examine a police officer regarding his identification of the accused. In denying the application, the Court madethe following findings: There is no evidence before the Court by way of an Affidavit from either [former] trial counsel, Mr. Hope, or the Applicant as to whetherit was a tactical decision not to cross-examine Sgt. Curtis on the booking photo. The Applicant argues that that doesn't matter in anyevent and that that evidentiary foundation is not required at this Application.

It is clear that if it was a tactical decision it was anunreasonable one. Further, however, the Applicant submits that an unreasonable tactical decision should not be a basis to deny thisApplication. Due diligence is only one factor and the Applicant submits that lack of due diligence does not trump a miscarriage ofjustice. (para 12) [...] There is no evidence before the Court whether Mr. Hope, on the instructions of his client, made a tactical decision not to cross-examinethe photograph. Mr.

Hope was not notified of this Application and there is no allegation at this hearing of ineffective assistance ofcounsel or incompetence of counsel. (para 16) Without that evidentiary foundation is it open for the Court to conclude that there has been a miscarriage of justice? Is it open for the

Court to find and conclude that it is in the interests of justice to declare a mistrial and permit this matter to proceed to a new trial before adifferent justice? [...] (para 17) [64] In sum, the Court found that the accused was simply attempting to reverse an earlier tactical decision, holding at para 24 that: I am not satisfied in all of the circumstances that a mistrial should be granted in this matter. As in the Anderson decision I am satisfied onthe record before me that there is a strong inference that the Applicant is seeking to conduct another trial to be able to conduct his trial ina different manner.

The fact that the Applicant did not agree with the result does not result in a second trial so that issues could be dealtwith differently. [Emphasis added.] [65] The onus of establishing ineffective or incompetent representation lies with the accused. In R v Furtado (2006), (ON SC), 43 CR (6th) 305, 42 MVR (5th) 102 (Ont SCJ) the Court described this onus at para 73(10): ... where an appellant contends his counsel caused a criminal trial to miscarry he “carries a heavy burden” R. v.

TKWJ, [2002] HCA 46 atpara. 74 per McHugh J.) with “a very high threshold test”, a “high and difficult threshold”, to be met in order to be successful ... [66] As I indicated earlier, Dr. Levin’s arguments concerning Mr. Hepner fall into two categories. The first is an allegation ofineffective or incompetent counsel. In relation to that allegation, Dr. Levin raises the issue of the unredacted portion of his policeinterview. As I said earlier, that clearly was an error. Dr. Levin asserts that the error arose as a result of Mr.

Hepner and Ms.McConaghy’s failure to locate the CD of the statement amongst the Crown disclosure. From that Dr. Levin expresses concern that hisprior counsel had not read information pertaining to his case and were making agreements with the Crown without reading the material.No other specifics were given in support of that allegation. [67] One identified error does not equate to professional incompetence. This is particularly so when the error is curable. I will dealfurther with this issue in subsection “c” below. [68] Dr. Levin’s other allegation against Mr.

Hepner are more properly characterized as ethical concerns. They arise as a result ofDr. Levin’s understanding that Mr. Hepner has acted for the Calgary Police Association. Dr. Levin provides no information concerningthe nature or timing of that retainer. Without particulars, it is not possible to determine whether Mr. Hepner was in an undisclosedconflict of interest. It may be that he was retained in the past for the purposes of representing one or more members of the Calgary PoliceService in connection with either criminal charges or disciplinary action.

If past representation of that nature is the source of the allegedconflict, then I would conclude that there was no conflict unless the officers in question included the two officers who provided evidencein these proceedings. In any event, it is Dr. Levin who has the burden of proof for this application and it was incumbent upon him toprovide particulars concerning the nature of the conflict. [69] On the basis of this alleged conflict, which I have concluded has not been proven, Dr. Levin argues that this is the reason whyMr. Hepner did not have the RB Exhibits independently tested.

He alleges that his conflict resulted in him simply accepting the evidenceof the police expert. This is speculative and Dr. Levin fails to meet his burden in proving that this is the reason why the RB Exhibitswere not sent by Mr. Hepner for independent analysis. There are other explanations for his decision, including the possibility that thiswas a strategic or tactical decision on Mr. Hepner’s part. [70] Following receipt of the second mistrial application, which is based on the alleged incompetence or misconduct of Mr.Hepner, I asked whether the Defence intended to call Mr. Hepner to address these issues.

They indicated they did not intend to do so.They indicated that Mr. Hepner was aware of the allegations, having been served with a copy of Dr. Levin’s affidavit. They alsoindicated that the Crown could call Mr. Hepner if it wished to do so. In that regard, I again remind Dr. Levin that he has the burden ofproof in this application. I do not know of any procedure whereby Mr. Hepner, having received a copy of Dr. Levin’s affidavit, couldhave called himself as a witness in these proceedings, nor does the Crown have any burden of proving that Mr. Hepner is notincompetent or unethical. [71] I conclude that Dr.

Levin has not satisfied the burden of proving that Mr. Hepner was either incompetent or unethical in hisconduct of this matter to the point of his termination. More importantly, he has not shown that Mr. Hepner’s failure to redact the 39 lines

or to have the RB Exhibits independently examined has or will result in a miscarriage of justice. I will deal in subsection “c” with thecurative nature of the redaction error. New counsel arranged for the RB Exhibits to be examined by an expert chosen by then. Withoutdeciding whether Mr. Hepner erred in not doing so (as there is no basis for me to do so on the evidence before me), any error has nowbeen cured. (

c) Receipt of Prejudicial Information by the Jury [72] Dr. Levin argues that a mistrial ought to be declared as a result of the receipt by the jury of two pieces of prejudicialinformation: (

a) the 39 lines that ought to have been redacted from pages 122, 123 and 124 of the transcript of Dr. Levin’s police interview. Thispassage contained Dr. Levin’s advice to the detective about the events that had occurred in South Africa. While the point of Dr. Levin’scomments appears to be aimed at the very different manner in which the South African allegations were handled in contrast with themanner in which the Canadian allegations were handled, during his comments he indicated that he had been “named as one of the tengreatest torturers of gays in the wor’ ... of, of people, greatest torturers in the world ...” (the “unredacted material”); and (

b) during RB’s testimony, RB blurted out “... other times he would tell me about things in his past where – uh – when he was in thearmy of forcing men to rape women” (the “RB comment”). (which together will be referred to as the “prejudicial information”) [73] In relation to the unredacted material, the interview DVD was stopped before the unredacted material was reached. However,the jury had been provided with a transcript of the interview and, although the tape had not reached that passage, counsel noticed it andstood to stop the playing of the tape just shortly before the passage was reached.

It is unknown whether any of the jurors had read ahead.In addition, the jury members retained their copy of the transcript for a period of approximately two minutes before they were retrieved,which occurred immediately upon counsel identifying the issue. [74] In the case of the unredacted material, in court, in Dr. Levin’s presence, counsel agreed that they would provide me withauthorities and their suggested handling of the issue. That was done jointly by Crown and Defence counsel, while Mr. Hepner was stillacting for Dr. Levin. Counsel agreed that a mid-trial instruction was appropriate.

A mid-trial instruction was then given. [75] RB’s blurting out of his comment regarding what he alleges Dr. Levin told him was unexpected. A mid-trial instruction wasalso given in relation to that comment. [76] Dr. Levin takes the position that receipt by the jury of the prejudicial information compromised his right to a fair trial, andthat a mistrial ought to be declared. [77] Dr. Levin agrees a mistrial is a remedy of last resort and declaring a mistrial is a drastic step which has a high threshold.

Hesubmits that whether a mistrial is required is determined by assessing whether the relevant comments have created a real danger ofprejudice to him and a miscarriage of justice, so that his ability to make full answer and defence has been irrevocably impaired. [78] Dr. Levin submits that mid-trial instructions cannot cure the prejudicial effect of the prejudicial information. He also submitsthat the mid-trial instructions provided by me were insufficient. [79] A central principle drives whether evidence is admissible in a criminal proceeding.

In R v Seaboyer; R v Gayme, (SCC), [1991] 2 SCR 577 at 609, 83 DLR (4th) 193, McLachlin J (as she then was) observed:

The law of evidence deals with this problem by giving the trial judge the task of balancing the value of the evidence against its potentialprejudice. Virtually all common law jurisdictions recognize a power in the trial judge to exclude evidence on the basis that its probativevalue is outweighed by the prejudice which may flow from it. [80] The prejudicial information does not relate to any relevant fact that is currently in dispute. Its character is obviously negative,and portrays Dr. Levin in a negative light. I therefore concluded that it is inadmissible as evidence, and should not be considered by thejury.

I have already instructed them on that point. [81] The issue is whether a mistrial is now necessary, despite the mid-trial jury instructions. The legal test for that issue is wellestablished.

The trial judge evaluates whether it is likely that the jury’s exposure to inadmissible evidence has so compromised the trialthat no other remedy can protect the right of the accused to a fair trial. [82] The leading case is R v Khan, 2001 SCC 86, [2001] 3 SCR 823, where at para 32 Justice Arbour indicated for the majority: ... when asked to declare a mistrial, the trial judge was essentially asked the same question as the one before us, that is, whether it waslikely that the exposure by the jury to the tainted transcripts could have affected the jury to the point that the entire trial wascompromised and that no remedy other than a new trial was available. [Emphasis added.] [83] In Khan, the jury had been given transcripts which had not been edited as required.

The jury were in possession of theunedited transcripts for approximately six and a half hours before the error was discovered. The trial judge refused to declare a mistrialon the basis of this error. She provided an instruction to the jury. The accused was convicted of murder. He appealed on the basis of thejury having been in possession of the unedited transcripts for six and a half hours. The appeal was dismissed by the Court of Appeal, andhis further appeal was dismissed by the Supreme Court of Canada. [84] The right of an accused is not to a perfect trial, but to a fair one.

This principle has been restated in many forms by theSupreme Court of Canada, in relation to trial processes including jury selection (R v Find, 2001 SCC 32 at para 32, [2001] 1 SCR 863),third party evidence disclosure (R v O’Connor, (SCC), [1995] 4 SCR 411, 130 DLR (4th) 235), defence counselactivities (R v White, 2011 SCC 13 at para 194, [2011] 1 SCR 433), and admission of evidence (R v Harrer, (SCC),[1995] 3 SCR 562 at para 45).

This last case provides a useful expansion on just what fairness entails: At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trialmust not be confused with the most advantageous trial possible from the accused's point of view ... Nor must it be conflated with theperfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth,while preserving basic procedural fairness to the accused. [Emphasis added, citation omitted.] [85] Dr.

Levin is not entitled to a perfect trial, but rather one that allows the jury to pursue and evaluate the truth, and preserve“basic procedural fairness”. I do not believe “basic procedural fairness” is the issue here, but rather whether the prejudicial informationhas fatally compromised the “public interest in getting at the truth”, or in this case, the capacity of the jury to make a fair evaluation ofDr. Levin’s guilt or innocence. [86] That latter question is mine to determine. The standard for a mistrial is high.

In R v Toutissani, 2007 ONCA 773 at para 9,the threshold was endorsed as: [t]he declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where noremedy short of that relief will adequately redress the actual harm occasioned. [Emphasis added.] [87] Trial judges are entitled to great deference in decisions regarding mistrials: R v Jeanvenne, 2010 ONCA 706, 261 CCC (3d)462 at para 58.

[88] Here, I have given mid-trial jury instructions in relation to the prejudicial information. Further instructions will be given inthe final charge to the jury. The Supreme Court of Canada has acknowledged that the steps a trial judge has taken to remedy anyirregularity is a relevant consideration in determining whether trial fairness has been affected in a way which would warrant thedeclaration of a mistrial (Khan, at para 80).

If the chosen remedy is a warning to the jury on what should and should not be considered inreaching a verdict, the jury’s ability to follow instructions must be recognized (Khan, at para 81), “... although this reality is obviouslysubject to its own limits.” [89] The mere possibility that a jury cannot take and follow judicial instruction is not an adequate basis to declare a mistrial. ChiefJustice Dickson in R v Corbett, (SCC), [1988] 1 SCR 670, 41 CCC (3d) 385 was explicit: In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose.

This lineof thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocenceis determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure ofcommon sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long anddifficult, but the experience of trial judges is that juries do perform their duty according to the law. ...

It is of course, entirely possible to construct an argument disputing the theory of trial by jury. Juries are capable of egregious mistakesand they may at times seem to be ill adapted to the exigencies of an increasingly complicated and refined criminal law. But until theparadigm is altered by Parliament, the Court should not be heard to call into question the capacity of juries to do the job assigned to them.The ramifications of any such statement could be enormous. Moreover, the fundamental right to a jury trial has recently beenunderscored by s. 11(

f) of the Charter. If that right is so important, it is logically incoherent to hold that juries are incapable of followingthe explicit instructions of a judge. ... We should maintain our strong faith in juries which have, in the words of Sir William Holdsworth, “for some hundreds of years beenconstantly bringing the rules of law to the touchstone of contemporary common sense” (Holdsworth, A History of English Law (7th ed.1956), vol.

I, at p. 349). [Italics in original, underlining for emphasis.] [90] In R v Corbett, this reasoning was the foundation for Justice Arbour to conclude, at para 82, that ... we should not presume that jurors are incapable of following instructions by the judge.

On the contrary, when the judge issues a clearand forceful warning about the use of information, we are entitled to presume that it diminishes the danger that the jury will misuse thisinformation when rendering its verdict. [Emphasis added.] [91] With that context provided by appellate courts, I turn to the specific caselaw identified by the Defence and Crown in relationto RB’s comment. These discuss whether an unsolicited prejudicial comment from a witness requires a trial judge to grant a mistrial.

Theanalysis in these cases generally turns on the nature of the comments and the attempts made by the trial judge, if any, to remedy anyprejudice to the accused caused by the comments. These cases were determined on whether, factually, the prohibited evidence was of akind that fatally interfered with the likelihood that the jury could can ‘get at the truth’. [92] Dr. Levin argues that RB’s comments in this case pass a threshold identified by the Nova Scotia Supreme Court, AppellateDivision, in R v Armstrong [1969], 1 NSR (1965-69) 681, (NS CA), [1970] 1 CCC 136. In Armstrong, the accusedwas on trial for murder.

A witness gave evidence on the stand that the accused told her he had confessed to the police and signed astatement: para 3. The statement was not before the jury: para 14. At para 74 the Court concluded that if the prejudicial words had notbeen spoken by the witness, it could not be said that the jury would not have found a different verdict: para 74: ... it is my opinion that once these words were said, the mischief was done and warnings of the learned trial Judge could not effectivelyerase them from the minds of the jury.

Nor can the fact that defence counsel did not move for dismissal of the jury and a new trial affectthe matter. [93] I note this is a prohibited disclosure of an alleged confession to a person in authority, which would have a very substantialimpact on that jury’s capacity to ‘get at the truth’. In R v Emkeit, (SCC), [1974] SCR 133, the majority of the Supreme

Court of Canada observed the very different effects of a confession on jury impartiality to a poem recounting the character of motorcyclegangs: I do not think that the learned trial judge erred in refusing the motion of counsel for the appellants to discharge the jury. The poem didnot relate to or substantiate the accused's guilt of the crime with which he was charged and could have no bearing on the issue of selfdefence, and it could not, in my opinion, have prejudiced the jury any more than the evidence of Emkeit himself.

Unlike the evidence ofthe confession in the Armstrong case, supra, I do not think that the poem was evidence which could not be effectively erased from theminds of the jury in considering the guilt or innocence of the accused, and in my opinion the clear instructions in the trial judge's chargeserved to fulfill this purpose. [Emphasis added.] [94] A confession directly relates to guilt, and is highly damaging to the truth-finding process. Context can more readily beignored with proper judicial instruction. [95] Jeanvenne is the only other case cited by Dr.

Levin where a trial judge erred in not granting a mistrial. In that case theaccused was convicted of first degree murder in relation to two killings. During the trial, a Crown witness indicated that the appellanthad murdered a third individual, Jean Viau, and attempted to kill the witness himself. It is important to note that the Court in Jeanvennedid not find that a mistrial should have been granted based on these prejudicial outbursts made by the witness.

Rather, the Courtspecifically stated that the trial judge erred in denying the mistrial application by failing to consider the particularly damaging nature ofthe reference to the murder of Jean Viau in the context of the accused being tried for the two murders jointly. Another witness hadtestified that the accused told her that Jean Viau had been with him when he killed one of the victims, Mr. Poulin. If the trial judge hadsevered the two murder charges, as was requested by the accused, the jury dealing with the charge relating to Mr. Poulin would not haveheard Mr. Massie’s testimony.

The joinder of the charges resulted in the jury, which was dealing with both the Poulin murder and theother murder, hearing Mr. Massie’s evidence. The result was the jury could draw an inference that the accused may have killed JeanViau to silence him about the killing of Mr. Poulin. The Court of Appeal specifically noted that it was the outburst regarding Jean Viauthat was problematic because the trial judge did not consider the complicating layer of his refusal to grant the severance application.

Thisis made explicit in the Court’s concluding remarks: To the extent that it means anything, then - and in the context of the refusal to grant a severance - I conclude that the trial judge erred, inthe circumstances here, by failing to order a mistrial in relation to the Poulin murder charge. [96] The Court would not have found that the trial judge erred in this case, despite the highly prejudicial nature of the witness’soutburst, without the complicating factor of the failure to grant a severance application. [97] Dr.

Levin also relies on R v Rollocks (1994), (ON CA), 91 CCC (3d) 193 (Ont CA) to illustrate why RB’scomments require a mistrial. In Rollocks, the Court did not overturn the trial judge’s decision not to grant a mistrial, but stated that theprejudicial evidence in the case came “perilously close” to the improper reference to the confession that the witness in Armstrong made.In Rollocks the accused was charged with two counts of sexual assault. An expert witness was to provide opinion evidence regarding thebehaviourial patterns of children who had been sexually abused.

It was clear that the expert was not to give any opinion about thecredibility of the complainants. In response to an open-ended question, the witness stated: “I think it is highly likely that the sexualassault that they described is an accurate description”. [98] Doherty JA found, at para 12, that the trial judge did not err when he refused to grant a mistrial: [A]fter anxious consideration I cannot say that the trial judge had no alternative but to declare a mistrial.

She was entitled in the exerciseof her discretion to conclude that a strong and repeated instruction to the jury could overcome the prejudice caused to the appellant. Iwould not interfere with the exercise of that discretion. [99] This decision reinforces the importance of clear judicial instruction and warning. The trial judge in Rollocks warned thejurors to put the expert’s comment out of their mind, even before hearing the mistrial application.

The judge reiterated this in her chargeto the jury, stating that the jury was to ignore any opinion given by the expert regarding the credibility of the complainants. [100] The prejudicial information in this case is not related to Dr. Levin’s guilt or innocence on the charges before the Court. The

[ 100 ] The prejudicial information in this case is not related to Dr. Levin ’ s guilt or innocence on the charges before the Court. The unredacted material may not have been seen by the jury members. It relates to unproven allegations raised by Dr. Levin himself. RB ’ s comments were an unexpected utterance from a witness. [ 101 ] I conclude that both of these forms of prejudicial information can be effectively dealt with by appropriate instructions. Instructions have already been given, with input from counsel, and will be further dealt with in the jury charge. I am satisfied that su

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