Crown, defence make cases for voir dire evidence in Regina mother's murder trial

A Saskatchewan judge must now weigh whether to admit some evidence into the Chelsea Whitby murder trial, after counsel delivered arguments for and against it in court Friday morning.

Crown prosecutors Adam Breker and Aly Sparks have presented evidence within a voir dire, a trial within a trial, for more than two weeks. This voir dire was held to determine whether some Crown evidence was relevant in establishing motive.

On Friday at the Court of King's Bench in Regina, Breker and defence attorney Darren Kraushaar delivered arguments on whether the evidence presented in the voir dire should be admissible to the murder trial.

Justice C.L. Dawson, however, had concerns about how to interpret the evidence for her voir dire decision.

"If there was a jury, I would have to instruct them properly on the use of the various pieces of evidence I approved," Dawson said.

"I expect that I will instruct myself in the same way."

Whitby, 27, is charged with second-degree murder in the death of her 18-month-old son Emerson on June 10, 2020.

Emerson, who arrived to hospital with about 20 bruises on his body and a couple of bone fractures, died from blunt-force trauma, the court heard. He had no underlying health condition that could have contributed to the injuries, and there was likely more than one incident that caused them.

The Crown argues Whitby caused the injuries that led to her son's death.

Whitby has maintained she doesn't know how her son sustained the fatal injuries. On Friday, Breker argued the evidence presented in the voir dire should be admitted because it is relevant, showing the relationship between Whitby and Emerson, how she treated him and past injuries he sustained.

It also meets the threshold for the judge to infer, based on that evidence, what may have occurred on the day in question, Breker said.

Justice Dawson asked Breker several times for clarity about the inference he asked her to draw from the circumstantial evidence — evidence not drawn from direct observation.

Second-degree murder, Dawson noted, requires someone to intentionally use force to cause death. So she wondered how the circumstantial evidence would support the Crown's argument for motive.

She also cautioned that no direct evidence has been presented regarding Emerson's injuries on June 10, 2020, although medical experts have testified and given their opinion about them.

"This is circumstantial evidence and opinion evidence, that these injuries were the result of some action … or inattention, or negligence," Dawson said.

"It is admissible for other reasons. The question is: is it admissible to prove what you're suggesting?"

Breker argued it is, because the purpose of the voir dire is not to convict Whitby of the murder charge. The purpose, he said, is to prove whether the evidence leaves any other explicable reason that Emerson could have been fatally injured.

Kraushaar, the defence attorney, argued the Crown failed to establish the relationship between Whitby and her son is applicable, to show what their evidence supports and why the Crown is using it, and how the evidence is relevant to the murder trial.

"The danger here is that you're being asked to make an inference, based on circumstantial evidence, about the conclusion that you maybe can't draw. Then, you would use that conclusion to prove something down the road at the trial," Kraushaar said.

The case law Breker cited, Kraushaar added, also involved direct evidence, whereas this case is mostly circumstantial evidence.

Dawson did not probe Kraushaar.

The judge-only trial will resume April 21.