REGINA – The case of a Regina woman charged with the second-degree murder of her son continued briefly yesterday in King’s Bench Court.
The accused, Chelsea Rae Whitby, appeared to hear the brief decision - under 10 minutes in length - along with several family members in the gallery.
At hand was a decision by Justice C.L. Dawson whether or not voir dire evidence heard during the three-week sitting would be admissible into the trial proper. Many of the 20-plus witnesses called by the Crown to testify in the case provided evidence about the injuries sustained by the victim - Emerson William Whitby - and medical findings, which were generally admitted. However, defence counsel did note a potential issue with the ruling on evidence provided by Dr. Konrad Chmiel, who was the Crown’s final witness called back in April.
Depending on the ruling of admissibility as it regards Dr. Chmiel’s testimony, Whitby’s lawyer Darren Kraushaar may choose to call evidence as the trial progresses. So far, the defence has not called any evidence into the proceedings.
Justice Dawson proposed a brief teleconference next week to confirm what evidence - if any - will be forthcoming. Depending on the outcome of that meeting, the case could proceed directly into lawyer arguments tentatively slated to begin June 20.
Justice Dawson’s written decision presented June 7 centred around two individuals who presented evidence during the trial - Riley Jolly (Emerson’s father) and Patrick Earnshaw (Whitby’s former partner). Both men had testified that they observed “acts of aggression” towards Emerson by the accused prior to the boy’s death.
“The Crown seeks to have this evidence admitted for the purposes of showing the state of the relationship between the accused and Emerson prior to his death, to demonstrate animus and establish motive, which in turn may be relevant to proof of the identity of Emerson’s killer and the legal character of the unlawful killing,” said Justice Dawson in her decision.
She further explained that the defence takes the position that the evidence of Jolly and Earnshaw is not admissible for the purposes sought by the Crown.
The burden before the Crown is to establish beyond a reasonable doubt that Chelsea Whitby caused the death of Emerson, that she caused it unlawfully, and that she had the state of mind required for murder. If the Crown can prove she committed an unlawful act, but did not have intent, then Whitby would be found guilty of manslaughter.
Relating the Earnshaw’s evidence, which was observed when Emerson was about two months old, Justice Dawson declared it inadmissible.
“Briefly, the evidence was that Emerson was crying in the middle of the night,” Justice Dawson said in her decision. “Mr. Earnshaw testified that Chelsea could not identify Emerson’s reason for crying. He testified that Chelsea put Emerson down on the bed between her and Patrick [Earnshaw] and then waived her hand towards the child.”
“I find the probative value of this evidence to be negligible, as it is unclear and unreliable and remote in time, and it is significantly outweighed by its prejudicial effect,” Justice Dawson continued.
As for the testimony that Jolly witnessed Chelsea putting Emerson’s face into a pillow for a few seconds, Justice Dawson allowed the evidence.
“The evidence is weakened because Riley could not remember specifically when the incident occurred,” wrote Justice Dawson. “However, the evidence is closer in time to the date of the alleged offence than Mr. Earnshaw’s evidence.”
Justice Dawson ultimately found the probative value of Jolly’s evidence to outweigh the prejudicial effect.
Lawyer arguments are anticipated to be heard later this month.
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