R. v. Choy, 2011 ABQB 375

Court of Queen ’ s Bench of Alberta Citation: R. v. Choy, 2011 ABQB 375 Date: 20110614 Docket: 070121058Q1, 070121058Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Lily Choy Accused _______________________________________________________ Reasons for Decision Voir Dire #4 of the Honourable Madam Justice D.C. Read _______________________________________________________ Introduction: [ 1 ] Lily Choy stands accused of second degree murder in the death of her foster child A.B. who collapsed on the floor of the bathroom in the Accused’s home and was rushed to hospital. While Ms.

Choy waited at the hospital and after the child was in surgery, she gave both a verbal and a written statement to police. A police officer was with Ms. Choy from shortly after she arrived at the hospital until she was taken to police headquarters late in the morning and charged. The Crown sought to introduce these statements into evidence. A voir dire was held to determine their admissibility. Evidence of Lily Choy:

[ 2 ] Early in the morning of January 27, 2007, Ms. Choy went to the Stollery Children’s Hospital. She drove in her own vehicle, following the ambulance that took her foster child A.B. By the time she arrived, A.B. had been taken into the trauma room in the Emergency Department for assessment. Three police officers were already there. She was introduced to Constable Lucasz Komar who told her that he was going to accompany the child to diagnostic imaging but asked Ms.

Choy to wait for him in the ‘quiet room’ of the hospital, a private waiting room near to the trauma area, equipped with sofas, chairs, and a telephone. She was shown to this room by one of the nursing staff. She was not certain who told her that the child was going to be taken for surgery but learned this while in the quiet room. She was told she could accompany the child to the door of the operating theatre and so walked with the child’s stretcher up to the operating room.

She recalled that Constable Komar accompanied her to the door of the operating room and returned with her to the quiet room afterwards. [ 3 ] Before going to the quiet room, Ms. Choy spoke briefly to the neurosurgeon who asked her to consent to the child’s surgery. She told him she had no authority to give consent and this could be obtained only the Department of Children’s Services (“Department”). From the quiet room, Ms. Choy telephoned the Crisis Unit of the Department and had a brief conversation with a social worker, who asked her some questions about what had happened to the child. Ms. Choy answered these.

She then made two more telephone calls – telephoning her home to speak to her nanny Julia Gee who was looking after the other children and to her friend Rebecca Forbes to ask her to come to be with her at the hospital. All of these calls were quite brief. Constable Komar was present when she made all the calls. Ms. Choy said she asked his permission before making these calls because she felt that he was “in charge”. She said it felt uncomfortable calling with Constable Komar sitting right there. However, she did not ask him to leave to give her some privacy. [ 4 ] Ms.

Choy described herself as being very tired that early morning. She had been up since 8:00 or 8:30 am the previous day and had worked from 3 pm to 11 pm. She said she may have lain down after work briefly before A.B. was injured but she did not think she had slept. Ms. Choy described herself as feeling very upset. She was exhausted and crying and worried about the child. [ 5 ] Ms. Choy estimated that she and Constable Komar were alone in the quiet room for 45 minutes to an hour before anyone else arrived. Ms.

Choy said Constable Komar began to question her insistently and incessantly to find out what had happened to A.B. immediately after she made the three telephone calls. He told her she needed to tell him what happened because his boss needed the information. She described him as being firm, insistent, repetitive and persistent, saying over and over that she had to speak to him and that he needed the information. She recalled crying and being very upset during this entire period because she had not heard anything about how the child’s surgery had gone.

She said that Constable Komar sat near to her on an adjacent couch with only a small table between them. She recalled that the door to the quiet room was closed the entire time she was in there except when someone entered or left. [ 6 ] Ms. Choy said she asked Constable Komar if she could talk about what happened later when she was feeling clearer, telling him of her concern for the welfare of the child and that she had to rest. He refused. Ms. Choy felt that she could not focus on the information he was asking her to provide and said she kept asking him if they could find out how the child was.

He promised an update on the child’s condition after she gave him her statement. He did not tell her that she did not need to speak to him or that she had the right to call a lawyer or that anything she said could be used against her. On her evidence, Constable Komar told Ms. Choy that everything would be all right if she told him what happened. [ 7 ] Ms. Choy estimated that her friend Rebecca Forbes arrived at the quiet room at about 5 am. Just before her arrival, Constable Komar gave Ms. Choy a written statement witness form, telling her to complete the witness form to say what happened.

He did not tell her that she did not need to complete the statement then. She says she completed the form so that she could get updated information about the child. She recalled that the hospital chaplain, Paul Bergen arrived shortly after Ms. Forbes and that Bev Harbison, the social worker, arrived about an hour after that. [ 8 ] Ms. Choy said Constable Komar’s demeanour changed after the arrival of Ms. Forbes. He did not have the same intimidating demeanour he had exhibited earlier nor the same insistent tone of voice. He was quieter and a lot ‘softer’ in his approach. [ 9 ] Ms.

Choy said that the first line and the question written on the form were written by Constable Komar and the file number was already on the form when she completed it. She recalled commenting that she did not know where to start with the written statement and that was when Constable Komar wrote the question. The writing at the bottom of the form was also not hers.

[ 10 ] Ms. Choy completed her witness statement over about 1 ½ hours, during which time both Ms. Forbes and Ms. Harbison were present. From time to time she discussed with Ms. Forbes, what to put on the form since she had been present through some of her experiences with the child. [ 11 ] Twice during the time Ms. Choy was in the quiet room, she went outside for a cigarette. Both times, she asked permission to do so from Constable Komar and each time, he accompanied her. She said she did not feel like she could get up and just walk out.

She agreed, however, in cross examination that the nursing station was near by and there were nurses there. She also agreed that she mentioned to neither Mr. Bergen nor Ms. Forbes that Constable Komar would not give her an update or that he was holding out the promise of an update only after she gave her statement. She also did not recall asking Ms. Forbes, Ms. Harbison or the Chaplain to get an update for her about the child’s condition and that she did not tell Ms. Harbison that the officer was insisting she give a written statement. She explained this by saying she was not permitted to speak to her in private.

She did not ask to do so. [ 12 ] Ms. Choy recalled also going to the washroom with Ms. Forbes, after asking Constable Komar for permission. She said she “knew” that she could not just get up and leave . The washroom was just across and down the hall from the quiet room. Ms. Choy said Constable Komar stood in the hallway outside the quiet room and watched them when they went to the washroom and held the door open for them when they returned to the quiet room. [ 13 ] Ms. Choy recalled Constable Komar leaving the room only once “for sure”.

She recalled that he left after a knock on the door, but only for a minute and she thought he just stepped outside because she heard him speaking to someone outside the door. She thought he had hold of the door handle when he was outside the door although she did not explain why she thought this was so. [ 14 ] She says she tried at one point to close her eyes during the long wait in the quiet room but did not sleep. [ 15 ] Ms. Choy says she was not permitted by Constable Komar to make any further telephone calls.

When she wanted to call home a second time to see if the children were getting up for school, she was not permitted to. Instead, Ms. Forbes telephoned, using Ms. Choy’s cell phone to call Ms. Choy’s home and also Ms. Choy’s students to let them know she would not be available to teach that day. [ 16 ] Constable Komar finally left the quiet room when another police officer arrived to relieve him and “they did a shift change in the room”. It was with this other officer that Ms. Choy went to police headquarters to be charged. He told her that she could not take her own vehicle.

It was not until she got to the police headquarters and was placed in a ‘soft room’ that Detective Clarke came in to talk to her and told her that she could call a lawyer. She did call a lawyer at that time. Evidence of Constable Komar: [ 17 ] Constable Komar’s evidence differed from that of Ms. Choy in several key respects. He was dispatched to the hospital along with his partner, Constable Kevin Noble and testified that he approached Ms. Choy and told her he would like to speak to her about what had led to the child’s situation but told her, as well, that he simply wanted to be “there for her”.

He said he felt he was there to support Ms. Choy as a distraught foster mother. He said Ms. Choy wanted to go to the quiet room to wait and because he was going to follow the child who was about to be taken for CT scans, he told her he would join her there shortly simply to let her know she would not be alone. Constable Komar did not recall accompanying Ms. Choy to the door of the operating theatre. [ 18 ] He denied being insistent with Ms. Choy or telling her that she had to tell him immediately what happened. His evidence was that when he arrived at the quiet room some 15 minutes after Ms.

Choy, he simply asked the still crying and distraught Ms. Choy to tell him what happened whenever she felt comfortable doing so. He said she answered him without hesitation and that he did not interrupt or prompt her, letting her say whatever she wanted to without asking any follow up questions until later. He did not take many notes. On his evidence, part of her explanation involved her showing him by demonstrating one of the things she said the child did as self mutilating behaviour. On her hands and knees, Ms.

Choy demonstrated pulling her hands away which she said the child did so that his head hit the floor. [ 19 ] In respect to the written statement, Constable Komar said that he asked Ms. Choy to provide a witness statement only because it was a part of his standard practice whenever he interviews a witness. He said he asked her at about 5 or 5:30 am to provide one but

made it clear she was not obliged to make a statement. Ms. Choy told him that she would provide one once she was not crying anymore and had had some rest. He placed the witness statement form on the table between the two couches and said it will be right there if you need it and did not prompt her again to write the statements. [ 20 ] He recalled that Ms. Choy then took a nap for about one half hour and was asleep when her friend Ms. Forbes arrived. After Ms. Choy awoke, according to Constable Komar, she picked up the written form of statement and started to work on it "out of the blue".

She spoke to her friend about it and then turned to him asking "how do I start this?". It was then, he said, that he wrote the question on the witness statement form for Ms. Choy to respond to. He denied ever saying to Ms. Choy that she had to write the statement before she could get any updates respecting the condition of the child. [ 21 ] He also recalled the seating arrangements as being somewhat different from those described by Ms. Choy. He agreed that Ms. Choy sat on one of the two sofas in the room and he sat on the other but he placed them about two metres apart and not close together, as Ms.

Choy had testified. He recalled that Ms. Forbes sat on the same couch as Ms. Choy when she came in. [ 22 ] He said, as well, that Ms. Choy repeated to Ms. Forbes the same story about what had happened, when she arrived after she asked what had happened. [ 23 ] He recalled that Ms. Choy went to the washroom at some point after she awoke from her nap but could not recall if she went alone or with her friend. His evidence was that Ms. Choy said something before she left about going to the washroom but that he did not respond since he did not think the comment was addressed to him.

He thought that she was gone 10 or 15 minutes and denied standing outside of the door to the quiet room while Ms. Choy was in the washroom to watch her to enter and exit. [ 24 ] He acknowledged going outside with Ms. Choy twice when she went for a cigarette but said this was simply because they were having a conversation at the time and he, as well, wanted a break and a little fresh air. [ 25 ] He also recalled that after Ms. Choy wrote out her statement, everyone seemed to be very relaxed. He even recalled Ms. Choy making a joke and laughing at one point. [ 26 ] Although he agreed that he was with Ms.

Choy for a number of hours in the quiet room and did not leave until he was relieved by another police officer later in the morning, he said this was simply because he was waiting for his partner, Constable Noble to return and wanted to be where he could be found. He said that Ms. Choy could have left the room anytime she wanted to but she never showed any inclination to do so.

He thought the door to the quiet room was “wide open” the entire time although he later agreed in cross examination that it might have been closed at least part of the time they were in there. [ 27 ] In cross examination, he agreed that he knew before arrival at the hospital that EMS had been called because of a very serious injury to a child and that EMS personnel considered the injuries suspicious. He also agreed he spoke to some of the EMS personnel when he got to the hospital. He did not recall being specifically requested to interview Ms. Choy, however, and said it “just seemed like the logical thing to do”.

He denied being aware that there was any specific criminal investigation or that Ms. Choy was a suspect during the time he spent with her. [ 28 ] He also agreed in cross examination that he never actually told Ms. Choy “straight out” that she did not have to talk to him; nor did he tell her that she had a right to remain silent and a right to contact a lawyer. He denied that he considered her a suspect during the time period they were together in the quiet room. [ 29 ] He denied, as well, forbidding Ms.

Choy from making any telephone calls from the quiet room, with the exception of the second time she wanted to phone home. He said he asked her not to call because he was aware that other members of the police force were going to the house to obtain a witness statement from Ms. Gee and wanted to be sure her statement would be unaffected by any discussion with Ms. Choy. [ 30 ] Constable Komar did not keep extensive notes of the interview he conducted with Ms. Choy and much of his oral evidence was not detailed either in his notes or in the report he later completed.

Evidence of Others Present in the Quiet Room: [ 31 ] The three others present in the quiet room during much of the time that Ms. Choy and Constable Komar were there, also gave evidence. [ 32 ] Ms. Choy’s friend Rebecca Forbes arrived shortly after 5 am after a telephone request by Ms. Choy that she come to the hospital. She recalled that a uniformed police officer was with Ms. Choy when she arrived and the two were sitting adjacent to one another each on one of the two couches. She said the police officer asked Ms. Choy to give a written statement and recalled the Chaplain’s arrival while Ms. Choy was writing.

She recalled that Ms. Choy spoke as she was writing, explaining to Ms. Forbes and the Chaplain what had happened. On Ms. Forbes evidence, Ms. Choy did not express any unwillingness to make the written statement. She did not specifically recall the police officer saying anything about the statement but thought the police officer seemed friendly and agreed that he engaged in some small talk with them and did not seem authoritative or aggressive or give any direction as to what they should do. She did not recall that Ms.

Choy ever expressed any dissatisfaction with the presence of the police officer. [ 33 ] She recalled that the door to the quiet room was closed but agreed in cross examination that no one had required that it be closed and that it may have been closed simply to minimize noise from the hallway. Nonetheless, she said she felt that Ms. Choy was “under suspicion” at the time. She recalled Ms. Choy going for a cigarette at least once and that the police officer went with her and recalled going to the washroom with Ms. Choy and recalled that they talked in the corridor together afterwards for a few minutes.

She did not recall where the police officer was at this time. However, she said that Ms. Choy commented that she felt “like a criminal” because she was not even allowed to go for a cigarette on her own. In cross examination, however, she agreed that she had said at the last trial that this comment was made in the context of Ms. Choy not being able to get any information about the welfare of the child. [ 34 ] She described Ms. Choy as being clearly tired and upset and said she requested information about the child and seemed frustrated at not being able to see him. She recalled that Ms.

Choy lay down and closed her eyes twice. She did not see Ms. Choy “joking around”. [ 35 ] She did not recall any discussion with the police officer about telephone calls. She said she made several calls to Ms. Choy’s home to speak to the nanny and find out what was going on. As well, she recalled calling Ms. Choy’s students to let them know that class would be cancelled that day. She thought that Ms. Choy did not call herself because she was upset. She did not see Ms. Choy use the telephone. [ 36 ] She recalled that the Chaplain came and went a number of times and, at one point, returned with some beverages.

She also recalled two other men coming in but was not sure who they were. She recalled the social worker arriving somewhat later on. [ 37 ] The hospital chaplain, Paul Bergen said he arrived at about 5 am and that when he arrived Ms. Choy, Constable Komar and Ms. Forbes were all in the quiet room. He recalled that the police officer was speaking to Ms. Choy when he came in about how to complete the witness statement. He asked permission to sit down because he felt that he was interrupting. When the Officer had finished speaking, Mr. Bergen asked Ms.

Choy something to the effect of what had brought her to this moment. In response, Ms. Choy began to describe the events leading to the child’s hospitalization. Neither Ms. Forbes nor Constable Komar participated in the conversation at this point. He recalled that the social worker came in towards the end of Ms. Choy’s description of what had happened and that during her discussion with Ms. Harbison, Ms. Choy seemed to get more agitated. Mr. Bergen said he was the one that suggested Ms. Choy return to the chronology of what had happened because “it seemed to settle her”. He recalled that Ms.

Choy had the witness form in her lap at this time. [ 38 ] Mr. Bergen described the Constable as being “very unobtrusive”. He did not recall that the officer said much of anything after he gave his instructions about how to complete the witness statement, until Ms. Choy asked him how to get started. Constable Komar’s response was that she should complete the witness statement giving the same information that she had just spoken about. He said the Constable then only spoke in response to queries from Ms. Choy about whether to include some piece of information in the written statement. Ms.

Choy completed the statement in ‘fits and starts’, on his evidence, pausing to discuss things with Ms. Forbes from time to time. The Constable did not participate in this discussion. Mr. Bergen described the Constable as being very reassuring and encouraging, non-confrontational and non-judgmental, contrasting the demeanour of Constable Komar to that of some of other personnel elsewhere in the hospital. He did not think that the police officer was restricting the movements of Ms. Choy in any fashion.

[ 39 ] He also describedMs. Choy on her hands and knees demonstrating the self harming behaviour she said the child had engaged in. [ 40 ] Ms. Choy did not appear to him to feel threatened and did not express or appear to have any difficulty with the presence of the police officer. He did not get a sense that she was resisting writing the statement but did recall that Ms. Choy appeared drained and to have been crying. He also recalled that she expressed concern about being kept in the dark as to the results of the child’s surgery and his condition. [ 41 ] He thought Ms.

Choy was asleep when he ultimately left the quiet room. [ 42 ] Bev Harbison, the social worker assigned to support Ms. Choy as her foster home support worker, arrived at about 6 am. Ms. Choy, Constable Komar, Ms. Forbes and the hospital chaplain were all in the quiet room talking together, when she arrived. Ms. Choy was concerned about her students and what was happening at home with her own children and had just started to complete her written statement. [ 43 ] Ms. Harbison recalled that Constable Komar left the quiet room briefly on four or five occasions after receiving phone calls on his cell phone.

He went out to respond to these. She did not recall having any direct discussions with Constable Komar and he did not tell her to do or not do anything. Ms. Harbison thought he acted in a respectful manner towards Ms. Choy and tried to provide her with what information he could. She said they were all told that Ms. Choy could not see the child until after the birth parents had been notified. Ms. Choy did not express any concerns about police activity or possible criminal liability in Ms. Harbison’s hearing. However, Ms. Harbison knew from her telephone discussion with the Crisis Unit that Ms.

Choy might have a criminal problem. In cross examination, she recalled that Ms. Choy was not permitted to get in touch with Ms. Gee. [ 44 ] Ms. Harbison’s evidence was that the door to the quiet room was closed. She understood that Ms. Choy was to stay inside the room but she was not sure what caused her to conclude this. Evidence of Others: [ 45 ] Sergeant Blaine Eliuk was also at the hospital in the early morning of January 27. He testified that he ran into one of the EMS attendants and got some information from him that Ms.

Choy had provided to the attendant concerning alleged self mutilation activity by the child. Sergeant Eliuk also spoke briefly to two of the child’s medical care givers: Dr. Rick Lee and Dr Simran Grewel. Dr. Lee’s opinion was that the child’s injuries were consistent with shaken baby syndrome. Dr. Grewel also expressed concerns about the child’s injuries and asked that Child Protection Services be contacted. Sergeant Eliuk called Detective Mora at about 4 am. She asked him to tell Constable Komar to obtain a pure version statement from Ms. Choy.

Sergeant Eliuk did so and asked Komar also to obtain an EMS statement. [ 46 ] Constable Dennis Dalziel, another Edmonton police officer, was dispatched to the Stollery on a high priority call, arriving at 3:02 am. He went immediately to the trauma room where the child was being cared for because he was aware that the child was a suspected victim of an aggravated assault and his injuries were serious. Constable Dalziel’s function at the hospital was to maintain continuity over the child, basically to go where the child went. He had no dealings with Ms.

Choy and was not certain that he had any contact with Constable Komar He certainly spoke to Constable Noble, Constable Komar’s partner, who relieved Constable Dalziel. He passed on certain information to Constable Noble, including that the child was in very serious condition with a brain bleed. His notes indicate that Constable Komar took over the investigation. [ 47 ] Constable Kevin Noble arrived at the hospital with Constable Komar. They were briefed by Sergeant Eliuk. Constable Noble recalled being introduced to Ms.

Choy and spending some time with her in the quiet room together with Constable Komar, before he was directed to take over continuity of the child. After that, he periodically checked in to the quiet room, just to confirm that Constable Komar was still there but took no

part in any discussions in the room. In cross examination, he recalled that he and Constable Komar had also spoken to the EMS personnel and that Sergeant Eliuk asked Constable Komar to interview Ms. Choy. Findings of Fact:

[ 48 ] Both Constable Komar’s and Ms. Choy’s evidence is unreliable in some respects. Constable Komar did not keep detailed notes and his evidence respecting his instructions from his superiors and his reasons for remaining in the room with Ms. Choy are contradicted by the evidence of other officers. Ms. Choy’s evidence is also contradicted by other witnesses. [ 49 ] Other than when she went to the washroom with Ms. Forbes, a police officer was with Ms.

Choy from the time Constable Komar arrived in the quiet room until she was taken downtown to be arrested – a total of some seven hours. [ 50 ] Members of the police service were aware from before 3 on the morning in question of a possible aggravated assault of a small child who had been transported to the Stollery Children’s Hospital, and commenced an investigation based upon this information. The investigation was high priority, as was clear from the evidence of both Constable Dalziel and Sergeant Eliuk. Almost as soon as he got to the hospital, Sergeant Eliuk knew that Ms.

Choy, the child’s foster mother, was present, and spoke to her to get some initial information. When Constable Dalziel arrived at 3:02 am, he was instructed to maintain continuity over the child because of the serious injuries and the possibility that he was a victim of an aggravated assault and Constable Dalziel did so until Constables Noble and Komar took over the investigation. [ 51 ] I reject the evidence of Constable Komar that his primary purpose in staying with Ms. Choy for the many hours was to provide comfort to her.

Instead, based upon the evidence of Sergeant Eliuk and Constable Noble, I find that Sergeant Eliuk instructed Constable Komar to meet with Ms. Choy to see if he could find out what had happened and to try to obtain what he termed a ‘pure version’ statement from her. To try to comfort the distraught Ms. Choy was a secondary purpose. [ 52 ] Sergeant Eliuk also instructed police personnel to attend at the Choy residence to ‘secure’ it. [ 53 ] The police were investigating a possible crime. [ 54 ] What information Constable Komar had that Ms. Choy was a suspect and when he had it, is not clear.

Certainly, however, Sergeant Eliuk was aware that Ms. Choy was possibly implicated and he spoke to Constable Komar more than once. Sergeant Eliuk’s discussions with EMS and the physicians occurred after his initial instructions to Constable Komar to sit with Ms. Choy but I am satisfied that he again spoke to Constable Komar after obtaining this further information and instructed Constable Komar to obtain the ‘pure version’ statement. [ 55 ] Based upon the evidence that he was instructed to obtain a pure version statement from Ms. Choy, I also reject Constable Komar’s evidence that obtaining a statement from Ms.

Choy was his idea. [ 56 ] Given the information that Sergeant Eliuk had, and from the evidence of Constable Noble, I conclude that during his discussions with Constable Komar and Constable Noble, Sergeant Eliuk told them that the child could be a victim of a crime. [ 57 ] Sergeant Eliuk also instructed Constable Komar to obtain statements from the EMS personnel. It is unclear when Constable Komar approached EMS but he did so at some point. He also read the EMS reports. It is likely therefore that he had some knowledge of their suspicions respecting the injuries to the child.

That EMS personnel had early suspicions that Ms. Choy was the source of the injuries to the child is clear. For example, the detailed event document generated by EMS had the comment added at 2:50 am “foster mom’s story not credible”. [ 58 ] I conclude that Constable Komar had at least some information at the time he interviewed Ms. Choy that would have caused him to consider her a possible suspect, when he obtained her written statement and perhaps when he obtained her earlier verbal statement.

I reject his evidence that he did not consider her to be a suspect. [ 59 ] I reject the evidence of Constable Komar that he did not leave the room during the time he was with Ms. Choy simply because he had no where else to go. This is contrary to the evidence of the other police officers. He was directed by Sergeant Eliuk to remain with Ms. Choy and did so. For the same reasons, I reject Constable Komar’s evidence that he accompanied Ms. Choy for his cigarette breaks

only because they were chatting and he wanted to stretch his legs. [ 60 ] All of those in the room describe Ms. Choy as distraught and crying at least part of the time she was at the hospital. I accept Ms. Choy’s evidence that she had not slept that night before the incident, had been up for many many hours and was very tired. I find as a fact that Ms. Choy was in an emotional fragile state and very tired when she gave her oral and written statements to Constable Komar. [ 61 ] However, in my view, Ms. Choy exaggerates the sense of intimidation and compulsion she felt from Constable Komar.

The other witnesses who were present during much of the time, do not describe Constable Komar as being at all intimidating. Ms. Forbes did not recall that the police officer made any demand of Ms. Choy other than a request that she complete a written statement. She described him as having a friendly demeanour and she did not regard him as being aggressive or demanding. Ms. Harbison described Constable Komar’s demeanour as respectful towards Ms. Choy and the Mr.

Bergen called him reassuring and encouraging, non-confrontational and non-judgmental. [ 62 ] Nor do I accept that Constable Komar withheld information about A.B’s condition to try to exert pressure on Ms. Choy to make a statement. I note, for example that Ms. Choy was a nurse and therefore knowledgeable about hospital routines. She knew that the nursing station was close to the quiet room and would have known that the nursing staff were likely to have whatever information was available about the child’s condition.

On her own evidence, she left the quiet room twice to have a cigarette and once to go to the washroom with Ms. Forbes. She admitted in cross examination that it would have been a simple matter to walk over to the nursing station to make inquiries and that she did not ask Constable Komar if she could do so. Her only explanation for not doing so was that the door she went out to have her cigarettes was in the opposite direction from the nursing station. [ 63 ] I also do not accept that Constable Komar told Ms.

Choy that she could not go for a cigarette until she gave a statement, which was apparently her evidence at the first trial. When asked whether this was so at this trial, she denied it. [ 64 ] On the evidence of Mr. Bergen, and Ms. Harbison. I am satisfied that the door to the quiet room was closed, at least most of the time, while Ms. Choy and Constable Komar were in it. Because he worked at the hospital on a regular basis, Mr. Bergen would be most familiar with the standard type of hospital doors.

He described the door to the quiet room as a standard hospital door with a mechanism on it to keep it from slamming shut. I am satisfied that the same mechanism would have made it difficult to leave the door open, unless it was propped. Ms. Harbison also recalled the door was closed. [ 65 ] I find that Ms. Choy did tell Constable Komar on two occasions that she wished to leave the room to smoke and told him as well that she wished to go to the bathroom as Ms. Forbes said. However, I conclude that she did not make any other requests to leave the room or for Constable Komar to leave the room.

None of the other witnesses recalls her saying anything to this effect. In particular, Ms. Choy had the opportunity to speak to Ms. Forbes out of Constable Komar’s hearing. Although Ms. Forbes says she recalls Ms. Choy saying to her that she felt like a criminal, this comment was made in reference to her frustration about not getting any information about the child’s condition and not in reference to her feeling that her movements were being restricted. Ms. Choy said nothing to anyone about feeling intimidated by persistent questioning or wanting to leave. Issues: [ 66 ] There are two issues: 1.

Were the verbal and written statements made by Ms. Choy voluntary? 2. Were these statements made in violation of Ms. Choy’s s. 10 rights under the Charter of Rights and Freedoms ? Discussion and Decision: [ 67 ] I will deal firstly with the issue of voluntariness. I am aware of and have reviewed the decision of the judge at the previous trial on this issue.

[ 68 ] It is common ground that Constable Komar was a person in authority and that the onus is on the Crown to prove beyond a reasonable doubt that the statements were voluntary: R. v.

Oickle , 2000 SCC 38 at para 30 . [ 69 ] In Oickle , the Court directed consideration of a number of relevant factors when determining the voluntariness of a statement: whether threats or promises were made; whether the statement was made in an atmosphere of oppression; whether the statement was the product of an operating mind; whether other police trickery was used. [ 70 ] Constable Komar did not offer any specific quid pro quo to Ms. Choy. As I have already indicated, I reject Ms.

Choy’s evidence that Constable Komar held out the promise of information about the child’s condition or the opportunity to telephone to inquire about the welfare of her children in exchange for her statement. Nor did he threaten her in order to exact her statement. [ 71 ] Nor did he exert any more subtle inducement such as telling her that things would go better for her if she provided a statement. I reject Ms. Choy’s evidence on this issue. [ 72 ] Nor do I find that there was an atmosphere of oppression in the quiet room. Ms. Choy was not denied access to food, water or sleep.

She went to the bathroom when she indicated that she wished to and was permitted to go for cigarette breaks. Constable Komar was friendly and the atmosphere was informal. I am not persuaded that Constable Komar was intimidating or used other pressure tactics to induce Ms. Choy to provide a statement. All of the witnesses save Ms. Choy described Constable Komar’s treatment of Ms. Choy in positive terms. Ms. Choy said that the officer’s demeanor changed when the other people came into the room but the evidence of all of these other witnesses was that Ms. Choy continued to speak freely after their arrival.

She responded to questions from both Ms. Forbes and Ms. Bergen about what had happened and did not start to complete her written statement until both of them were there. No one described any pressure on Ms. Choy to speak nor to complete the written statement. Ms. Choy’s evidence is simply not believable on this issue. If Constable Komar had so forcefully demanded a statement from her, why would she have continued to cooperate when others were there and the officer’s demeanour had changed? She made no requests to leave the room nor did she complain in any fashion about the continued presence of Constable Komar.

Her actions as described by all of the other witnesses are inconsistent with her evidence that Constable Komar’s behaviour was oppressive. I find, as well, that she did demonstrate the self mutilating behaviour she said the child had engaged in by acting out this behaviour as both Constable Komar and Mr. Bergen describe. Such a demonstration is inconsistent with someone who gives a statement simply to escape an oppressive atmosphere and is consistent instead with a statement given voluntarily. [ 73 ] I have also concluded that Ms. Choy’s statement was the product of an operating mind.

She certainly was tired and distraught and worried about the child’s condition, as well. She found it difficult to concentrate on one thing and more than one witness described her as being distracted and moving from one subject to another. However, she knew what she was saying and that she was saying it to a police officer: Oickle , para. 63 . [ 74 ] Nor do I think that the statements were made as a result of other police trickery. Constable Komar impressed me as someone with a good deal of personal charm and a convincing and sincere manner. Likely he made good use of these traits in his discussions with Ms.

Choy. He may have disarmed and reassured her by his demeanour so that she was more likely to open up and talk to him. However, tactics such as this cannot be characterized as police trickery [ 75 ] I have concluded that both the written and the verbal statements made by Ms. Choy were voluntary. [ 76 ] The second issue is whether Ms. Choy’s rights under s 10(

b) of the Charter were infringed.

[ 77 ] There is no doubt that Ms. Choy was not advised of her right to counsel until she was formally arrested at about noon on January 26, well after she had provided both statements. She exercised this right immediately on being informed of it. [ 78 ]

Section 10 provides that the right of a person to retain and instruct counsel and to be informed of that right, arises “on arrest or detention”. Therefore right to be advised that one can retain and instruct counsel arises as soon as a person is detained, whether or not they are formally arrested at that time. The question, then, is whether or not Ms. Choy was detained when she made her statements. [ 79 ] The meaning of ‘detention’ in a Charter context was reconsidered by the Supreme Court of Canada most recently in a trilogy of cases, including R. v. Grant 2009 SCC 32 and R. v. Suburu 2009 SCC 33 .

In para. 44 of Grant , the Chief Justice, speaking for the majority of the Court, summarized the meaning of the term and set out factors to be considered in a determination of whether or not a person has been detained: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint.

Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: (

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [ 80 ] The onus is on the Accused, to establish on a balance of probabilities that she was detained. [ 81 ] Applying this definition and considering these factors in relation to this case, I am satisfied that Ms. Choy was detained when she gave her statements to Constable Komar. While she was not physically detained and under no legal obligation to stay in the quiet room with him, on her evidence, she perceived that she was detained.

I have concluded that a reasonable person in her position would also have concluded that Ms. Choy was detained. [ 82 ] It is clear from the evidence of Constable Dalziel and Constable Noble, which I accept, that the police quickly moved beyond the stage of making general inquiries regarding A.B.’s injuries and what had caused them. Constable Dalziel was clearly aware that he had been dispatched to the hospital in response to a suspicion that the seriously injured child had been victim of aggravated assault.

Constable Dalziel knew he was going there to investigate the suspicious circumstances and when he left, he turned over the investigation to Constables Noble and Komar. [ 83 ] Sergeant Eliuk had similar information and spoke to Constable Komar more than once in person. He specifically asked him to sit with Ms. Choy. He also knew from his conversations with Dr. Lee and Dr. Grewel that it was their opinion that the injuries the child was suffering from were not consistent with self mutilation and that some form of abuse was suspected. Sergeant Eliuk said at that point that, for him, ‘red flags went up’.

After that he spoke to Detective Mora and instructed Constable Komar to try to obtain a ‘pure version’ statement from her. It is reasonable to conclude that Sergeant Eliuk conveyed this information to Constable Komar. I conclude that by this stage the police had singled out Ms. Choy for focussed investigation and that Constable Komar was aware of this. A reasonable person would have concluded she was being singled out for focussed investigation and, in fact, both Ms. Forbes and Ms. Harbison had

reached this conclusion. [ 84 ] I consider also the nature of the police conduct. As I have already indicated, Constable Komar was friendly and respectful with Ms. Choy rather than pressing or intimidating. There was no physical contact with her and others were present during most of the time period. The encounter took place in the quiet room of a hospital and there was no blatant atmosphere of interrogation or oppression. However, the door was closed and it is evident that Constable Komar wished to and did maintain close proximity with Ms. Choy.

While he did not physically restrict her movements, he was always aware of her whereabouts and stayed with her. When she went for a cigarette, he went with her. His absences from the room were brief and when he left, I find on the evidence of Ms. Harbison, that his absences were in response to telephone calls or messages where he likely obtained further information which increased his knowledge that Ms. Choy was under suspicion. Because he was only gone for a short time, he could not have gone far from the quiet room. I must also bear in mind that this close proximity with Ms.

Choy was maintained for a very long period of time, at least five hours. [ 85 ] I am also directed to consider Ms. Choy’s personal circumstances. She is an educated woman and, as a nurse, would not have been as intimidated by a hospital atmosphere as some others might be. She was 32 and had work and life experience. As well, I was able to watch and listen to her as she gave her evidence and concluded that she is neither naive nor unreasonably trusting. However, at the time, she was very tired and very worried about A.B.’s condition.

She was crying and distraught during at least some of her time with Constable Komar. [ 86 ] Bearing all of this evidence in mind, I consider that the reasonable person would conclude that Ms. Choy was detained. My conclusion is strengthened by the evidence of Ms. Harbison who says she understood that Ms. Choy was to stay inside the room and Ms. Forbes who considered Ms. Choy to have been under suspicion. Although Constable Komar did not explicitly tell Ms. Choy she had to stay in the room, neither did he tell her she was free to leave anytime she wanted. He was a uniformed police officer.

His role had clearly gone beyond that of making general inquiries respecting an incident. She had made the 911 call. By all accounts she had been with the child at the time he sustained the injury. Ms. Choy’s version of events had been questioned by the child’s medical caregivers as well as by the EMS personnel who had responded to the 911 call. Ms.

Choy had been singled out as a suspect in Constable Komar’s mind as is evidenced by his actions in maintaining close proximity to her over such a long period of time. [ 87 ] Constable Komar’s notes are unsatisfactory in respect to the time he did various things and obtained information. His oral evidence was also vague about times and particular events. I must resolve any doubts I have respecting timing in favour of the Accused’s version of events. She had no obligation to keep notes. The officer did. Having done so, I am satisfied on a balance of probabilities that Ms.

Choy was detained when she gave both her oral and her written statements to Constable Komar. This detention was not authorized by law and was therefore arbitrary. Ms. Choy was not told that she was under investigation and suspected of having assaulted the child and had not been arrested. [ 88 ] Ms. Choy’s right to counsel arose immediately upon detention: Suburu , para. 41 . Because she was not told of her right to retain and instruct counsel before she gave her statements, her rights under s. 10(

b) of the Charter were violated. [ 89 ] The question then becomes whether the statements, obtained in violation of Ms.

Choy’s Charter rights, should be excluded. [ 90 ] Section 24(2) of the Charter sets out the general framework: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 91 ] As the Court stated in Grant at para. 60 , the test for what would bring the administration of justice into disrepute having regard to all the circumstances is broad and imprecise.

However, at para. 68, the Grant Court provided some clarity: the inquiry is objective and the question to be asked is whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. At para. 71, the Court suggested that a court:

must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 92 ] The first line of inquiry necessitates an evaluation of the seriousness of the conduct of the police that led to the breach. I conclude that the police did not deliberately attempt to obtain a statement from Ms. Choy in breach of her Charter rights.

The conduct of Constable Komar was not abusive and, as I have said, it is unclear to me when Constable Komar had enough information to conclude that Ms. Choy was a suspect and not merely a witness. There is no suggestion that Constable Komar lied or was deliberately evasive in his testimony. However, his notes were so sparse that they are not helpful at all in aiding his recall of the details of his questioning of Ms. Choy. While I have concluded that the police here went too far in their questioning of Ms. Choy, the point at which investigative questioning becomes a detention is not always clear.

In my view, Constable Komar was simply mistaken in his view that he had not detained Ms. Choy and therefore did not have to advise her of her right to counsel. [ 93 ] Moving to the second inquiry, the impact of the breach on Ms. Choy’s protected interest was serious. She made a verbal and a written statement. It was not a confession. However, she made the statements in violation of her right to silence or to choose whether or not to speak to the police. The principle against self incrimination has rightly been called one of the cornerstones of our criminal law. When she was advised of her right to counsel, Ms.

Choy telephoned a lawyer immediately and did not make any further statements. It is doubtful if these statements would have been obtained in the absence of the Charter breach. [ 94 ] The third concern is the effect of admitting the statements on the public interest in having the case adjudicated on its merits. The evidence set out in the statements may or may not be reliable, taken as it was at a time when Ms. Choy was under considerable emotional stress and had not slept for a long period of time.

There is much other evidence in this case and the statements could not be termed the main element of the Crown’s case. Nonetheless, the offence charged is one of the most serious in the Criminal Code . Society has a great interest in having a case involving the second degree murder of a small child, adjudicated on its merits.

However, as pointed out in Grant , the public also has a great interest in having a judice system that is above reproach, particularly when the penal stakes for the accused are high as they, of course, are here. [ 95 ] Having weighed these various factors, I have concluded that the impact of the Charter breach on Ms. Choy’s protected interest is significant enough that the admission of the evidence would bring the administration of justice into disrepute. [ 96 ] The oral and written statements are both excluded. Heard on the 4 th through 29 th day of April, 2011.

Dated at the City of Edmonton, Alberta this 13 th day of June, 2011.

D.C. Read J.C.Q.B.A. Appearances: Allison M. Downey-Damato for the Crown Mona T. Duckett QC for the Accused