Saskatchewan court rejects Crown appeal in case of Regina woman acquitted for son’s death

WATCH: An appeal from the Crown has been dismissed in the case of a Regina woman acquitted in the death of her 18-month old son.

Warning: This story may contain details some readers may find disturbing

An appeal from the Crown in the case of a Regina woman acquitted in the death of her son has been dismissed.

Chelsea Whitby’s 18-month-old son, Emerson, died from a brain bleed as a result of blunt force trauma to the head on June 10, 2020.

Whitby was arrested and initially charged with manslaughter on Aug. 4, 2020, with the charge upgraded to second-degree murder in October 2021.

In June 2023, the Crown sought the lesser conviction of manslaughter, and the case was brought to a judge only trial that year.

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The Crown’s appeal centered on the trial judge’s decision to limit what several expert witnesses could testify about.

The decision from Saskatchewan’s Court of Appeal was handed down on June 3, with appeal judges noting that even if an error did happen, it wouldn’t have impacted the outcome of the trial.

Whitby’s trial

According to evidence presented at the trial, several relevant events took place before the boy’s death, including a fall backwards off a deck in April of 2020, and a fall out of his bed onto a metal bedrail in May of 2020.

Emerson was taken to hospital two days after falling out of his bed, after Emerson’s father prompted the Ministry of Social Services to check on the infant at Whitby’s mother’s home.

At the hospital, the attending physician ordered x-rays and noticed healing fractures on Emerson’s seventh and eighth ribs. She also observed bruising on his nose and forehead. The child stayed with his grandmother from May 27 to June 3, returning to his mother’s care on June 3.

The child’s father picked him up on June 9 but noticed that he was not his usual self, having taken a longer than usual nap, and vomiting in the driveway upon arriving back at Whitby’s house. Court later heard that vomiting can be a sign of head trauma.

On the morning of June 10, when Whitby went to get her son from his bed around 10 a.m., she found him unresponsive and called 911. First responders were able to get the boy’s heart beating before they took him to hospital. He had bruises on his body, and forehead, as well as blood in his eyes, and was declared braindead at 3:56 p.m.

In its initial argument at Whitby’s manslaughter trial, the Crown theorized that she, “committed an unlawful act on Emerson during the 30 to 40 minutes that her boyfriend was absent from her home on June 10, 2020.”

A post-mortem examination noted multiple bruises on the boy’s scalp, face, neck and torso that would have occurred at various times in the days and weeks leading up to his death. During the autopsy, the forensic pathologist testified that they also identified a skull fracture on the back of his head that was much older than the brain bleed that killed him.

The trial judge ultimately found Whitby not guilty of either second-degree murder or manslaughter.

• Regina mother charged with murder in son’s death found not guilty

According to the judge’s decision, there were reasonable alternatives for Emerson’s cause of death that do not include Whitby intentionally harming her son.

The Crown had called five expert witnesses to testify at the trial, including the attending paediatrician at the hospital Emerson died at on June 10, and an ophthalmologist who examined retinal hemorrhages in his eyes the same day, later appealing the judge’s decision to limit what they could testify about at the trial.

“The trial judge excluded evidence of the two physicians that was related to the timing and cause of Emerson’s death principally because she found that they were not qualified to opine about those issues,” the appeal document read.

“The Crown submits that the judge should have admitted the opinion evidence and then addressed any concerns that she had with its probative value when deciding how much weight to attribute to it.”

Justices Caldwell, Tholl and Drennan rejected the Crown’s argument for appeal and noted that even if an error occurred – the outcome of Whitby’s trial would remain the same.

“Addressing the Crown’s appeal, I conclude that the trial judge properly exercised her gatekeeper function at law by determining that Drs. Chmiel and Soper were not qualified to provide certain opinion evidence that the Crown sought to have admitted in the trial,” the decision read.

Since the Court of Appeal sided with the trial judge, Whitby’s acquittal will stand.

- With files from Allison Bamford and Cole Davenport