REGINA — Gripping a teddy bear that had been with her during the entirety of the trial, Chelsea Rae Whitby listened to lawyer arguments in Regina Court of King’s Bench on Thursday.
The gallery was also filled with family members, some of which had provided witness testimony during the trial proper earlier this year.
Whitby stands accused of second-degree murder related to the death of her son, Emerson William Bryan Whitby, alleged to have occurred between the evening of June 9 and morning of June 10, 2020.
In Crown submissions, two key questions needed to be answered: did Emerson sustain an injury that caused his death, and if yes, the Crown must prove Whitby was the person who inflicted those injuries beyond a reasonable doubt.
Crown prosecutor Adam Breker spent a great deal of time focusing on the intricacies of injuries and visible bruising young Emerson displayed while in hospital to answer the first question.
Citing findings from medical experts that provided testimony throughout the three-week trial, Breker argued that there was overwhelming evidence that Emerson’s death was from blunt force trauma.
“Something physical – a trauma – happened after bedtime on June 9 and before he was deceased,” Breker said.
As for the Crown’s second question alleging Whitby as the person who inflicted the traumatic injury, Breker focused on the brief window on the morning of June 10 when she was alone with Emerson and then boyfriend Taylor Stewart’s two children.
According to evidence presented during the trial, Whitby made two calls to a doctor’s office in order to schedule an appointment for Emerson. Somewhere between 9:15 and 9:30 a.m., Stewart left the apartment to buy milk and cigarettes, returning back to the apartment at 10:12 a.m. Records show that a 911 call was made at 10:13 a.m. – seconds after Stewart returned. It is within that timeframe that Breker suggested Whitby was not only the only adult at the residence, but had the opportunity to cause trauma to Emerson.
“It’s during that window of time the Crown submits that the trauma occurred,” Breker said of the approximately 42 minutes when Whitby was alone with the children.
At multiple points in her own previous testimony, Whitby recalls noticing the time was 10 a.m. when she went to wake Emerson, finding him motionless in the crib.
Breker also posed the question of if Whitby did not inflict the injuries, that Stewart possibly committed the act, why would she protect him after his death caused by suicide.
“Chelsea Whitby never suggested - even after Taylor’s death - that Taylor Stewart could have possibly been a cause of this,” Breker said, eluding that the absence of such “protection” pointed toward her guilt.
Through submitted evidence, Breker also painted Whitby to be someone who was more concerned with her own comfort level after Emerson died than about how her sone died.
“She could not believe this was happening to her – not to Emerson, to her,” Breker stated, adding how Whitby wished the police would leave her alone; “she wanted the police to go away.”
In conclusion, Breker submitted Emerson’s death was caused by blunt force trauma, inflicted by his mother on the morning on June 10, 2020 while Stewart had left the apartment for 42 minutes.
“Emerson Whitby was a tough little guy, but he could not sustain the injuries in that moment,” Breker concluded.
In his afternoon submission, Defence lawyer Darren Kraushaar argued that medical experts who testified actually proved Emerson suffered from a previous injury, which caused the subdermal hemorrhage instead of a recent trauma. He walked through events of the days leading up to June 10, noting symptomatic behaviour consistent with a re-bleed. While the Crown painted a picture of a toddler in good health, Kraushaar contested that Emerson was not feeling alright; that those seemingly innocuous signs were actually of greater impact.
“Again, the medical evidence in this case is complex, Kraushaar noted, referring to Dr. Christohper Robinson’s testimony regarding brain injuries and how there is no definite way to tell if the swelling was the result of trauma or cardiac arrest.
Kraushaar also took issue with the speculation that Whitby not blaming Stewart for Emerson’s death pointed to her guilt.
“I struggle a little bit with following that logic,” Kraushaar admitted. “If she wanted to deflect the blame from herself, it would be very easy to point the finger at Taylor at this point.”
Instead, as Kraushaar underlined, Whitby never wavered on the position that Stewart was also not responsible.
In closing his submission, Kraushaar noted the likely inference in this case was that the injury was accidental, a re-bleed, and not trauma caused by Whitby.
Justice C.L. Dawson reserved her decision on the matter, expected to be heard in court on Aug. 31.
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