R v Levin, 2013 ABQB 737

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 Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any manner.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 By Court Order, information that may identify the complainants must not be published, broadcast, or transmitted in any manner.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 after the jury retires to consider its verdict. Editorial Notice: The restriction on publication ended on June 27, 2014. Court of Queen ’ s Bench of Alberta Citation: R v Levin, 2013 ABQB 737 Date: 20131217 Docket: 100842400Q3 Registry: Calgary Between: Her Majesty the Queen Crown - and - Aubrey Levin Accused

________________________________________ ______________ Memorandum of Decision of the Honourable Madam Justice E.A. Hughes _________________________________________ ______________ Voir Dire Severance Decision Introduction [ 1 ] The accused, Aubrey Levin, applies to be tried separately on counts 1 and 2 of the Indictment before me as a result of expressing an intention to testify on one count but not the other, and the general risk of prejudice to him. Background Facts [ 2 ] The facts underlying this application are as follows. The accused, Dr.

Levin, was arrested on March 23, 2010 for sexually assaulting a patient, RB. Dr. Levin, prior to his arrest, was a psychiatrist with a forensic practice at the Peter Lougheed Hospital - FAOS unit, as well as a private practice. It appears he had practised for many years in Calgary. [ 3 ] Dr. Levin’s arrest for sexual assault was reported in the media. It appears this publicity led to the Calgary Police Service receiving calls from other individuals who alleged Dr. Levin had sexually assaulted them in the context of a doctor-patient relationship. The police investigation broadened and Dr.

Levin was subsequently charged with sexual assaults upon other male complainants. [ 4 ] Dr. Levin elected trial by judge and jury and was committed to stand trial in this Court. The first Indictment preferred was a 10 count Indictment that alleged sexual assaults upon 10 different males, spanning approximately 11 years. Dr. Levin’s trial, which was originally scheduled for 2 weeks, commenced on October 1, 2012. Dr. Levin discharged his first trial counsel after the start of the trial, current trial counsel was retained by Dr. Levin and he conducted the balance of the first trial.

No application for severance was brought any time in the first trial (see s 591(4) of the Criminal Code ), nor did Dr. Levin testify. [ 5 ] One count of the 10 count Indictment was stayed during the first trial. [ 6 ] After a trial that lasted almost 4 months, the jury convicted Dr. Levin on 3 counts, acquitted him of 2 counts, and was unable to reach a verdict on 4 counts. The two counts in the Indictment before me are counts 3 and 9 respectively in the original Indictment, and are two of the counts upon which the jury was unable to reach a verdict. The other 2 counts have been stayed. The Law [ 7 ]

Section 591 of the Criminal Code provides for the joining and severing of counts.

S 591(1) permits the Crown to charge any number of offences in the same Indictment while ss (3) permits a court to order an accused to be tried separately on one or more counts if the court is satisfied that “the interests of justice so require.” [ 8 ] The phrase “the interests of justice” has been interpreted as encompassing “...the accused’s right to be tried on the evidence admissible against him, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner.” R v Last 2009 SCC 45 at para 16 . [ 9 ] Relevant factors to consider in assessing “the interests of justice” include the following: 1.

The general prejudice to the accused; 2. The legal and factual nexus between the counts;

3. The complexity of the evidence; 4. Whether the accused intends to testify on one count but not another; 5. The desire to avoid a multiplicity of proceedings; 6. The use of similar fact evidence; 7. The length of the trial having regard to the evidence called; 8. The potential prejudice to the accused with respect to the right to be tried within a reasonable time.

Last at para 18 As observed by the Supreme Court in Last at para 17, these factors “...ensure a reasonable balance is struck between the risk of prejudiceto the accused and the public interest in a single trial” [10] In weighing the various factors in any severance application, some factors will assume greater importance than othersdepending on the nature of the case. This means that all factors may not be weighed equally.

For example, Justice Deschamps observedat para 27 in Last: While an accused’s provisional intention with respect to testifying is certainly a consideration which should be given significant weight,it is but one factor to be balanced with all the others. An accused’s stated and objectively justifiable intention to testify on some but notall counts is not necessarily determinative of a severance application.

It can be counterbalanced by other circumstances that the judgefinds may prevent the accused from testifying, or be outweighed by factors that demonstrate that the interests of justice require a jointtrial. [11] The party who seeks severance must establish on a balance of probabilities that the interests of justice require severance: R vArp, (SCC), [1998] 3 SCR 339 at para 52; Last at para 33. i. The Accused’s Intention to Testify [12] In Last, the issue before the court was whether the trial judge erred in denying severance.

One aspect of the severance issuewas how a trial judge should assess an accused’s intention to testify understanding the need for an accused to “control his own defence”,and the weight to give to this intention. The court in Last stated at para 26: Both the Crown and the defence submit that the accused’s intention should be objectively justifiable. This requirement is, indeed, athreshold. The accused’s expression should have both a subjective and an objective component.

However, while a formulaic expressionof a subjective intention is not sufficient in and of itself to discharge the accused’s burden to have the counts severed, the trial judgeshould not substitute his or her own view for that of the accused and determine that the accused should testify or not. Rather, the trialjudge must simply satisfy him-or herself that the circumstances objectively establish a rationale for testifying on some counts but notothers. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substanceto his testimonial intention.

The information could consist of the type of potential defences open to the accused or the nature of histestimony: Cross, at p. 421. However, the accused is not bound by his stated intention; he remains free to control his defence, as the caseunfolds, in a manner he deems appropriate. [13] The question I must address is whether the circumstances objectively establish a rationale for the accused to testify on onecount but not the other. [14] The accused relies upon the trial evidence of the two complainants – Mr. M and Mr.

S – to support his application that thereis an objective rationale for him to testify on one count but not the other. The position of the defence was summarized as follows in theirBrief at paras 11 and 12: 11. In this case, while both sets of counts relate to sexual assault, they raise different legal issues. The evidence adduced at previouspreliminary hearings and the trial proper raise significant credibility concerns relative to count one before the Court involving internaland external credibility concerns. The allegation to be levied against Mr.

M is fabrication/monetized motivation; and the testimony to becalled by the defence would posit innocence. Accordingly, this count may require the testimony of the Accused. 12. The testimony that was adduced relative to the other count (count 2) bears reliability and/or accuracy considerations from thecomplainant, which would not reasonable [sic] require the testimony of the accused (or someone else) to raise a reasonable doubt. Theissue at the previous trial was also the issue of consent to the medical examination. (Footnotes omitted.) [15] In oral submissions, defence advised it was count 2 - Mr.

S’s count, not count 1 - Mr. M’s count, which may require theaccused’s testimony at trial. [16] Doherty JA spoke to the distinction between credibility and reliability in R v Morrissey (1995), (ON CA),22 OR (3d) 514 (CA) at para 33: Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingnessto speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony.

Theaccuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events inissue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracyof a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not crediblecannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable.

In thiscase, both the credibility of the complainants and the reliability of their evidence were attacked on cross- examination.

[ 17 ] Regardless of the distinction between the two concepts, the purpose of both is to impeach a witness’s evidence so that a trier of fact will not rely upon the evidence in reaching their verdict. [ 18 ] I have reviewed the trial evidence of Mr. M and Mr. S. [ 19 ] Mr. M testified to Dr. Levin having offered to check Mr. M for STD’s at the conclusion of one of his visits for psychological issues. Mr. M testified that during the physical examination Dr. Levine began to stroke his penis up and down. [ 20 ] The cross examination of Mr. M suggested his complaint of sexual assault was fabricated.

For example, the following questions were put to Mr. M: Q What evidence – well, you made it all up. A No, I didn’t. Q I don’t think – A I did not. Q -- it’s amusing. A It’s not amusing, but I’m telling you, I did not make it up. I’m an honest, hard-working, well-intentioned person that tries to live right, and I was used. Q You weren’t used at all, sir. You just didn’t like the fact that you couldn’t jump on the band wagon and go after Dr. Levin, so that’s why – A There was – Q -- you made this up. A -- no band wagon. I called them either the same night I heard about it or first thing in the morning.

Q The notes are accurate, sir. A Yes, they are. Q It’s impossible. Thank you. A When I called the tip line, it was either that night, the 24 th , and said – there was no band wagon. I had no idea if it happened to anybody else. I don’t even know what happened to these other people. I don’t know them. This is what he did to me. Q You made it up. A No. [ 21 ] Mr. S testified that at his first appointment, Dr. Levin asked him questions about his sex life, asked him if he examined himself, and then Dr. Levin asked Mr. S if he could examine him. Mr. S testified he felt very uncomfortable about it but said yes. Mr.

S described the examination this way: Q Okay. Now, how does Dr. Levin get near you to do this examination? A He stood up out of his chair and walked around the desk to where I was, and he reached down and undid my pants as – as I was already starting to, he just got in there and ... Q And when he undoes your pants or making an action, what part of your pants does he undo? A My button and my zipper.

Q And after he undoes your button and your zipper, what happens next? A He pulled out my penis and started looking at it, pulled the foreskin back and everything. Q And are you standing, sitting, or what are you doing at that point? A I’m sitting. Q And describe how his body is situated as this examination is occurring? A He was kind of bent over, still standing. Q Okay. And you said that he grabbed your penis. What happened next. A He continued – he pulled back the foreskin and looked at it and he seen the dot and mentioned to me that it could be melanoma.

And he asked me if it concerned me – well, I said I had no idea what melanoma was. And when I asked him, he told me that it’s a disease that could kill me. And then I told him, you know, I was kind of concerned about it. And then he continued rubbing the spot. I remember that. He was rubbing the spot, and he almost seemed like he was getting kind of excited. And I asked him what he was doing, and he said that he wanted to see if it was getting hard – or if it would get hard. Q And in relation to your penis, where was your the dot located? A Behind the head. Under the skin.

Q And what did he use to touch your penis? A His fingers. Q And do you recall which hand or did he use both? A I believe he used both. Q And how long did this touching last? A It seemed like forever. Q Could you give an estimation in seconds or minutes? A I don’t know, probably five minutes at least. Q Okay. And what, if anything other than your penis, did he touch at that time? A Nothing. ... Q Okay. And can you please describe to the Court how the touching ended. A He stopped – I think I told him I was feeling uncomfortable, yeah, and then he stopped. [ 22 ] Mr.

S testified to a second physical examination of his penis, again initiated by Dr. Levin, where Dr. Levin took Mr. S’s penis from his pants and rubbed it with his hands. Mr. S testified this lasted “a couple of minutes at least”. [ 23 ] The cross examination of Mr. S covered a number of topics including these:

a) Mr. S’s daily use of alcohol and drugs. For example, Mr. S was asked these questions: Q And were you at a point where with your – with your marihuana consumption, for example, and your drug consumption, would you agree you’re pretty much nonstop either stoned or drunk or high? A Pretty much. There were days where I wouldn’t really – I’d still drink, but I wouldn’t do much else. Q Like not even smoke dope? A No, wouldn’t even smoke dope some days. Q But you would always drink? A Yes. Q So like, for example, that would be no exception to a day that you would go to see Dr. Levin, correct?

A I didn’t like going to see him when I was under the influence. I had felt uncomfortable enough as it was after the first time that I had seen him. There’s a couple of times where I went there, I had pot for sure. Q Okay. A Drunk I don’t think I ever do. Q But it sounds to me – A I can’t recall for some – Q -- like your idea of – and – and – and I’m not trying to argue with you; but when you’re consuming up to a 40 ounce bottle of Jack – Jack Daniels a day, you probably don’t even really consider yourself to be drinking if you only had let’s say 12 ounces. Would you agree with me? A Yes. Q Okay.

So it’s not that you weren’t drinking days that you saw Dr. Levin. You were not drinking excessively in your world. Is that fair to say? A Yes, yes.

b) Dr. Levin’s examination of Mr. S’s penis was a medical procedure to which Mr. S consented.

c) In addition, Mr. S was asked these questions: Q And you had another and – conviction on February 3 rd , 2012, for assault, did you say? A Yes. Q And what was that one about? A That was my baby’s mother. I had been back from a seismic trip, and the washing machine had been broken for some time. And she wouldn’t call the landlord for some reason, and we got into a yelling match, a screaming match. And the next thing I knew the police were at the door. Like, there was no physical contact or anything. I guess the neighbours called the police.

And they came and they arrested me for breaching a no contact order that she had lifted the year before they arrested me for breaching that, because it was still in their system, because my lawyer didn’t have – how do you put that? Have it notarized by the – Q Okay. A -- or stamped. You know, when the judge stamps the no contact order and stuff like that, it was the release wasn’t stamped and

turned in. So they arrested me on that originally. And then they were going to hold me on a $100 fine. So I called Melissa to bring my wallet down and pay the 100. And next thing I know the police were charging me for assault. And I didn’t know what really happened. And I was fighting it for, like, a year. I had one lawyer quit on me, because I couldn’t afford to pay him. And the second lawyer was pregnant, and come trial date, she said it’s best to just put everything into one day. It will benefit me better, instead of two. And then the day that I went in, she said, Well, it’s not looking too good.

I don’t know how I feel about this; but if you tell me that didn’t do it, I’ll fight tooth and nail for you. And I’m like, well, if I just plead guilty, you know, because my nerves were shot and I was tired of the fight. Like I had been fighting with this woman nonstop. I haven’t seen my son in two and a half years now. And I’ve been fighting with her nonstop, and I just had enough of the fight. So I’m like guilty, give it to me, whatever. Q And that’s in February, 2012? A Yes, this year. Q All right, so you didn’t think you’d done it, but you got a bunch of pressure put on? A Yeah, I know I didn’t hit her.

It was just a big yelling match, and the police arrested me on this nonsense, and I just had enough of fighting it at the end of it. And it’s like, okay, whatever, do it. Q Would you say that one of the things you need to – you would feel you need to come to grips with is people pressuring you into doing things that you shouldn’t be doing? A Yeah. Q Yeah. And I’m going to suggest that’s making an allegation of – that includes making an allegation of sexual assault. A Nobody has pressured me into that. [ 24 ] The cross-examination of Mr. S suggests the position of the defence was Mr.

S misinterpreted the nature of the physical examination in light of his alcohol and drug consumption at the time. This goes to the reliability of his evidence. However, the questions put to Mr. S that he “needs to come to grips with people pressuring him into doing things that he shouldn’t be doing” including making an allegation of sexual assault, suggests the making of a false report which goes to credibility. [ 25 ] The position of the defence at the first trial was to impeach the evidence of both complainants respecting credibility and in addition, to impeach Mr. S’s evidence on the basis of reliability.

To now suggest that such impeachment objectively establishes a rationale for testifying on one count but not the other appears to be without merit. [ 26 ] If I have misinterpreted the defence position at the first trial with respect to Mr. S’s evidence, and defence’s impeachment of Mr. S is solely on the basis of reliability, that is Mr. S misunderstood the nature of the physical examination, and with Dr. Levin having stated his intention to testify on this count, I will assume, without deciding, that this is objectively justifiable. [ 27 ] In my view this factor is not a significant factor.

Like in Last at para 30 , I conclude that the likelihood that Dr. Levin’s decision whether or not to testify would be the same in relation to both counts, especially in light of his decision not to testify at the first trial on any of the counts.

d) Legal or Factual Nexus between the Two Counts The Complexity of the Evidence The Use of Similar Fact Evidence [ 28 ] On the facts of this case, I believe it is appropriate to consider these factors together. [ 29 ] The evidence at the first trial established the following with respect to Mr. M and Mr. S:

a) Both complainants were patients of Dr. Levin, therefore there was a doctor- patient relationship.

b) Both complainants attended Dr. Levin’s office for psychological issues, not physical issues.

c) Both complainants testified to a sexual assault during the fall of 2009.

d) Both complainants testified that Dr. Levin initiated the discussion that led to him suggesting a physical examination of their penises.

e) Both complainants testified they “consented” to Dr. Levin touching their penises, believing it to be a valid medical purpose.

f) Both complainants testified Dr. Levin did not wash his hands before or wear gloves during the physical examination.

g) There is no evidence the complainants know each other. [30] This evidence of the alleged sexual assault on Mr. M and the two sexual assaults on Mr. S is not complex. [31] The theory of the Crown is that Dr. Levin performed physical exams of these two patients’ genitals under the ruse he wasexamining them for a legitimate medical purpose. Thus, Dr. Levin obtained the patients’ consent by fraud and by abusing his position asa doctor. [32] The Crown has advised it is their intention to call an expert, Dr. Peter Collins, to testify.

The Crown states at para 3 of itsBrief on Expert Evidence that “the Crown intends to call Dr. Peter Collins to give opinion evidence that it is improper and unethical for apsychiatrist who is caring for the psychological needs of a patient to do physical examinations of this nature. Secondly, the eventsdescribed by Messrs.

M and S were not proper medical procedures for examining and diagnosing sexually transmitted diseases ormelanoma in any event.” [33] The defence advises it will contest the admissibility of this expert evidence. [34] Without deciding the issue of the admissibility of expert evidence, I note that in R v Litchfield, [1993] 4 SCR 33, the courtobserved at p 345 that “... medical evidence will be important in assessing the nature of an accused physician’s conduct.” [35] There is a limited factual nexus between the two counts in that both complainants were patients of Dr. Levin and the sexualassault upon Mr.

M and the last sexual assault upon Mr. S are both alleged to have taken place in the fall of 2009. [36] The Crown however, has advised of its intention to bring a similar fact evidence application during the trial.

As observed inLast at para 34, there is no procedural rule requiring the Crown to bring the similar fact application at the time of a severanceapplication. [37] The Crown’s position in its Brief is that the evidence of the two complainants, as similar fact evidence, is relevant to the issuewhether the actus reus occurred in each case. [38] The factual and legal nexus become much stronger when the evidence is considered in the context of count to count similarfact evidence.

Last spoke to this issue at para 33: In many cases a ruling allowing similar fact evidence will favour a joint trial since the evidence on all incidents would have to beintroduced in any event. However, in view of the different burden in a similar fact evidence application, the issue has to be consideredcarefully in the context of a severance motion. As said in R. v.

Arp, (SCC), [1998] 3 S.C.R. 339, at para. 52: However, where the similar acts are alleged as part of a multi-count indictment, the consideration of the admissibility of similar factevidence will have to be taken into account in deciding whether the counts should be severed. Nevertheless, the trial judge should becareful not to confuse admissibility with severance. A motion to sever under s. 591(3)(

a) of the Code must be brought by the accused,who bears the burden of establishing on a balance of probabilities that the interests of justice require an order for severance. Yet theburden of demonstrating that similar fact evidence should be admitted must be borne by the Crown. These respective burdens mayinvolve the consideration of similar factors, but as Lord Scarman noted in R. v. Scarrott (1977), 65 Cr. App.

R. 125 (C.A.), at p. 135,“[i]t does not follow that because a multi-count indictment has been allowed to proceed that therefore the evidence given will beevidence on all the counts contained in the indictment”. Thus, to paraphrase the Manitoba Court of Appeal in R. v. Kahn (1996), (MB CA), 49 C.R. (4th) 160, at p. 167, notwithstanding the trial judge’s refusal to sever the counts in a multi-countindictment, it remains open to him or her, as the evidence progresses at trial, to determine as a matter of law that evidence on one countis not admissible as similar fact evidence on the other counts.

The assessment of similar fact evidence and the determination of itsprobative value and admissibility places an onerous burden on the trial judge. It is a task that must be undertaken with great care. [39] In assessing the evidence before me, understanding that the similar fact evidentiary issue has not been argued, it appears theCrown has an arguable case; its case here is certainly much stronger than in Last where the court described the similar fact application as“not likely to succeed”.

e) Risk of Prejudice [40] The defence submits the joinder of the two counts creates two types of prejudice for the accused – that of cross pollinationand propensity reasoning. [41] Propensity reasoning is always a risk that must be considered. I note the assaults alleged in this case are qualitatively similar.This was not like the situation in Last where one of the sexual assaults resulted in very severe injuries to the complainant while the otherdid not.

The risk of propensity reasoning is not as great in this case as existed in Last in light of the assaults being qualitatively similar. [42] The defence position on prejudice and cross pollination is clearly set out at para. 19 of their Brief: The joinder of the two counts creates a forum for cross-pollination between qualitative difference credibility assessments for theaforesaid reasons. As stated in Last, supra, the existence of two (2) complainants, Mr. M and Mr.

S, who had no relation to each otheralleging separate incidents of sexual assault creates a risk that the credibility of one or both complainants would be bolstered. Likewise,if the jury were to find Dr. Levin not credible relative to one count, the jury might presume that he was also not credible with respect tothe other count. The danger inherent with respect to the present joinder of the counts on the current Indictment would, in effect, ‘shoreup’ the evidence of a complainant number one with that of complainant number (2).

[ 43 ] I accept the risk of prejudice by cross pollination exists in this case. [ 44 ] As acknowledged in Last , a limiting instruction can limit the risk of inappropriate cross pollination or propensity reasoning. [ 45 ] The verdict rendered by the jury in the first trial suggests a properly instructed jury will not engage in inappropriate cross pollination or propensity reasoning.

f) Benefit to the Administration of Justice [ 46 ] If the severance application is denied, there is a gain in judicial economy by avoiding a third trial for Dr. Levin.

g) Balancing the Factors [ 47 ] In this case, the majority of the factors weigh in favour of a trial with both counts. When I weigh these factors against the intention of Dr. Levin to testify and the risk of prejudice, I do not find the accused has established on a balance of probabilities that severance is required to meet the interests of justice. Conclusion [ 48 ] I dismiss the application of the accused to be tried separately on counts 1 and 2 of the Indictment. Heard on the 2 nd day of December, 2013. Delivered orally at the City of Calgary, Alberta on the 10 th day of December, 2013 . E.A. Hughes J.C.Q.B.A.

Appearances: Shane Parker Dallas Sopko for the Crown E. Christopher Archer Jeinis Patel for the Accused