Crown files written argument on Chelsea Whitby toddler death appeal

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The judge who heard the trial of a Regina mother acquitted of manslaughter in the death of her toddler set the bar too high for expert testimony, the Crown now argues on appeal.

Chelsea Whitby’s son, Emerson, was 18 months old on June 10, 2020 when he suddenly died. Autopsy results showed the cause of death to be subdural hemorrhage caused by a significant blunt force trauma to the head.

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Whitby was originally charged with second-degree murder in the death. What, and potentially who, caused that trauma was a question at issue in the proceedings, which saw testimony from a number of medical doctors.

The Crown eventually sought a conviction for the lesser offence of manslaughter, of which the mother was acquitted in September 2023. An appeal was brought by the Crown before the month was out. 

But a fulsome written argument on the matter was not filed until late last month, with the legal document containing the Crown’s arguments (known as a factum) dated February 28.

The factum, signed by Crown lawyer Anthony Gerein, states that the judge who presided over Whitby’s trial improperly limited the scope of the testimony of two doctors. Those doctors, the factum argues, have done enough work and demonstrated enough specialized knowledge to offer testimony that “touches on skull and brain injuries and symptoms.”

According to the factum, the doctors were not allowed to testify about some aspects of the case, including providing certain opinion evidence about what caused Emerson’s injuries.

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“With respect, the trial judge erred at law by setting the threshold too high to qualify both experts,” the document states, suggesting their evidence was “material” to the issue of the timing and cause of death.

In its initial notice, the Crown indicated another ground of appeal, alleging the trial judge failed to hear admissible evidence. However, this leg of argument has been abandoned, according to the Crown’s factum.

Whitby has not yet filed her own written argument and no date has yet been set for the court to hear the appeal.

— with files from Larissa Kurz

bharder@postmedia.com

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