



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 appellants 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 appellants statements were voluntary and that she was not
    detained when she made them.

[3]

On appeal, the appellant does not challenge the trial judges 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 Zambusis interview or when he
    said to her before you and I leave one another were 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 appellants 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] 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 appellants 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
    appellants 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 Zambusis words in the course of the interview
     before you and I leave one another were 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
    appellants entire encounter with the police, these words do not support a
    detention.  These words were simply Zambusis way of trying to get the
    appellant to be truthful about how her sons 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 appellants 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


