Court of Appeal for Ontario

CITATION: R. v. Edwards, 2013 ONCA 460

DATE: 20130705

DOCKET: C53820

Laskin, Tulloch and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Treena Edwards

Appellant

Andrew Furgiuele, for the appellant

Suhail A.Q. Akhtar, for the respondent

Heard: June 21, 2013

On appeal from the conviction entered on April 6, 2010 by Justice W.L. Whalen of the Superior Court of Justice, sitting without a jury.

By the Court:

[1] The appellant, Treena Edwards, was convicted of assault causing bodily harm, criminal negligence causing bodily harm, failing to provide the necessaries of life, and failing to comply with a probation order. The victim was her two-and-a-half month old son. During a long interview at the police station, the appellant eventually made several inculpatory statements. She admitted that she shook her son and punched him twice in the back of the head.

[2] The admissibility of the appellant’s statements was a key issue at trial. She sought to exclude them on the ground that they were not made voluntarily and were obtained in breach of her right to counsel under s. 10(b) of the Charter. In thorough and detailed reasons, the trial judge ruled that the appellant’s statements were voluntary and that she was not detained when she made them.

[3] On appeal, the appellant does not challenge the trial judge’s ruling on voluntariness. She challenges only his s. 10(b) determination. She submits that he erred in finding that she was not detained when she made her inculpatory statements.

[4] The police interviewed the appellant on October 26, 2005, from 11:20 a.m. to 4:57 p.m. She was interviewed by three police officers – West, Sparling and Zambusi. She made her inculpatory statements when Zambusi interviewed her between 4:29 and 4:41 p.m. She accepts that she was not detained up until the time Zambusi began his interview of her. However, she submits that her status changed either at the outset of Zambusi’s interview or when he said to her “before you and I leave one another we’re both gonna have the truth.” She argues that as Zambusi did not advise her of her right to counsel before she made her inculpatory statements, her s. 10(b) rights were infringed and her statements ought to have been excluded.

[5] We do not accept the appellant’s submission. In our view, the trial judge did not err in finding that the appellant was not detained when she spoke to Zambusi. To make out a detention, the appellant had to show that she submitted or acquiesced in the deprivation of her liberty and reasonably believed that the choice to do otherwise did not exist. See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 28.

[6] The appellant did not meet this test. The circumstances leading up to her interview with Zambusi do not support her claim that she was detained when she made her admissions. These circumstances include the following:

• The appellant and her husband had brought their son to the hospital early that morning. At 9:20 a.m. Sparling advised them that the police were investigating an aggravated assault and that as parents they may be responsible. Sparling then gave the appellant her s. 10(b) right to counsel and cautioned her. She said that she understood her right. She was then left alone at the hospital.

• The appellant went to the police station voluntarily.

• At the beginning of her interview, West cautioned the appellant again and reminded her of her Charter rights. She acknowledged her right to speak to a lawyer but said that she did not wish to do so.

• During her interview by Sparling and West, the appellant was left alone several times for lengthy periods, made telephone calls to her mother and to the hospital, and never suggested that she was detained.

• At 4:22 p.m. – seven minutes before Zambusi entered the interview room – the appellant tried to call a lawyer (though the number was busy). West then told her expressly that she was free to leave if she wished. She decided to stay, not because she felt compelled to do so, but because she wanted to see her husband.

• Thus, even though the appellant was not detained before Zambusi entered the interview room, she had twice been given her right to counsel, had tried to exercise that right, and had been told she could leave the police station.

• The appellant’s previous criminal record showed that she had some knowledge of the criminal justice system and of her Charter rights when speaking to the police.

[7] In the light of these considerations, we are not persuaded that the appellant’s status changed when Zambusi began his interview. She was not detained beforehand, and nothing occurred at the outset of his interview of her to suggest that she reasonably believed she was detained.

[8] Nor are we persuaded that Zambusi’s words in the course of the interview – “before you and I leave one another we’re both gonna have the truth” – gave rise to a detention. Standing alone these words might suggest that the appellant was no longer free to leave. But, viewed in the context of the appellant’s entire encounter with the police, these words do not support a detention. These words were simply Zambusi’s way of trying to get the appellant to be truthful about how her son’s injuries came about, and we are satisfied that is how the appellant understood them.

[9] Accordingly, the appellant has not shown that the trial judge erred in his s. 10(b) ruling. Finally, we note that though the trial judge relied on the appellant’s inculpatory statements to convict her of assault causing bodily harm, he did not rely on those statements to convict her of negligence causing bodily harm or failing to provide the necessaries of life.

[10] The appeal is dismissed.

“John Laskin J.A.”

“M.H. Tulloch J.A.”

“G.R. Strathy J.A.”

Released: July 05, 2013