CITATION: R. v. Edwards, 2009 ONCA 730
DATE: 20091019
DOCKET: C49387
COURT OF APPEAL FOR ONTARIO
MacPherson, Cronk and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kevin Barry Edwards
Appellant
Michael F. W. Bennett and Patrick T. McCool, for the appellant
Paul Lindsay, for the respondent
Heard and released orally: October 15, 2009
On appeal from the convictions entered by Justice Gladys I. Pardu of the Superior Court of Justice, sitting with a jury, on November 29, 2007 and the sentences imposed on May 15, 2008.
ENDORSEMENT
[1] The appellant appeals his convictions for aggravated assault, criminal negligence causing bodily harm and failure to provide the necessities of life. He also seeks leave to appeal the global sentence imposed – 12 years imprisonment (8 years and 9 months imprisonment after credit for pre-trial custody and restrictive bail conditions).
[2] The background facts are horrific. The charges arose out of the brutal and sustained physical abuse by the appellant of his two and one-half-month old infant son. As a result of the horrendous abuse inflicted on the appellant’s son, he has been permanently and gravely injured. He has been left in a state of permanent paralysis and suffers from blindness, complete cognitive stagnation and constant discomfort. He will never live a normal life and will require constant care.
[3] The appellant’s wife – Treena Edwards – was charged with the same offences as was the appellant, plus one count of breach of probation. Her trial on these charges is now underway.
[4] The appellant did not testify at trial. Nor did he adduce any evidence to contradict or challenge the Crown’s expert medical evidence.
I. Conviction Appeal
[5] The appellant raises numerous grounds of appeal concerning trial fairness, the trial judge’s jury charge, the trial judge’s treatment of the opinion evidence of the Crown’s expert on child abuse, and the admission of evidence concerning certain statements made by the appellant to the police prior to and after his arrest.
[6] In our opinion, it is unnecessary to address the appellant’s grounds of appeal in any detail. We conclude that the conviction appeal must be dismissed for the following reasons.
[7] First, we are not persuaded that trial fairness was compromised in the ways alleged by the appellant. Many of the procedural matters said by the appellant to have resulted in trial unfairness were the result of trial conduct decisions by defence counsel (e.g. the appellant’s decision not to pursue his request to re-elect a trial by judge alone after his wife decided to plead guilty to some of the charges against her). In other instances, the matters complained of were legally permissible (e.g. the Crown’s initial decision to charge the appellant and his wife separately and, thereafter, to proceed against both accused jointly).
[8] The core of the appellant’s complaint on this ground seems to be that he did not have the opportunity to cross-examine his wife at a preliminary inquiry prior to his trial and that he received late disclosure of the statement of facts agreed-on by the Crown and Ms. Edwards. But the appellant had no absolute right to hear the evidence of his wife at a preliminary inquiry. As well, he was provided with a copy of Ms. Edwards’ agreed statement of facts with the Crown before his own trial began. Although he now submits that this disclosure was late, he brought no application before the trial judge for an adjournment of the trial.
[9] Second, we see no error in the trial judge’s jury charge or in her treatment of the Crown’s expert evidence. With respect to the latter issue, the appellant accepted the relevant witness’ medical expertise and qualifications at trial and failed to object to that part of the expert testimony now impugned. Indeed, the evidence attacked by the appellant was given in response to cross-examination of the witness by the appellant at trial. It was open to the appellant to object to the testimony at issue. He failed to do so. Moreover, he raised no objection to the trial judge’s jury instruction concerning the evidence of the Crown’s expert.
[10] Third, the Crown’s case against the appellant was overwhelming. The appellant admitted to the police that he shook his son on several occasions and that he witnessed his wife physically assault his son on at least one occasion without intervening. Thus, the appellant conceded that he was a party to the abuse of his son allegedly inflicted by Ms. Edwards. But there is more. The appellant also admitted to the police that he was with his son at the time when, according to the expert evidence at trial, the acute injury to his son’s brain and head was inflicted.
[11] A voir dire was held concerning the admission at trial of the evidence of these damning admissions by the appellant. We see no basis to interfere with the trial judge’s ruling that the admissions were voluntary and, hence, admissible.
[12] We therefore agree with the Crown that the appellant’s own version of events, together with the Crown’s uncontested medical evidence, provided a firm evidential foundation on which the jury could return guilty verdicts against the appellant on the offences charged.
[13] Accordingly, the appeal against conviction is dismissed.
II. Sentence Appeal
[14] We turn now to the appellant’s sentence appeal.
[15] In support of his sentence appeal, the appellant submits that the trial judge erred by failing, after the jury returned guilty verdicts against him on all three counts, to try the issue of the relative degrees of participation of the appellant and his wife in the aggravated assault of their son. In our opinion, the trial judge did not err in declining to conduct this inquiry in the circumstances of this case.
[16] The trial judge was entitled to make findings of fact based on the evidence at trial. That evidence included, as we have said, an admission by the appellant that he was with his son when the infant suffered a critical head injury on the day that he was admitted to the hospital. It also included expert medical evidence that the injury in question occurred within 12 hours of the infant’s arrival at the hospital. Moreover, the appellant elected to testify at his sentencing hearing. The trial judge, for cogent reasons, rejected the appellant’s claim that his wife had inflicted the major head injury at issue.
[17] In any event, in our view, the sentence imposed was fit having regard to the appellant’s egregious breach of trust, the seriousness and prolonged nature of the injuries inflicted and the devastating impact of those injuries on this young child.
[18] Leave to appeal sentence is therefore granted and the sentence appeal is dismissed.
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.” “G.J. Epstein J.A.”