REGINA – The province’s highest court dismissed the Crown’s appeal of Chelsea Rae Whitby’s acquittal in the death of her 18-month-old son Emerson.
Whitby was initially charged with second-degree murder but that was later reduced to manslaughter. The Crown had appealed on the grounds that the judge erred by excluding parts of expert testimony from doctors about the timing and cause of Emerson’s death.
“I have found that the trial judge did not err at law by excluding opinion evidence,” said Justice Neal W. Caldwell, in concurrence with Justices Jerome A. Tholl and Jillyne M. Drennan.
The Saskatchewan Court of Appeal upheld the trial judge’s ruling, finding she properly acted as a “gatekeeper” by excluding evidence beyond the doctor’s expertise.
The trial judge recognized the doctor as an expert but restricted the scope of her testimony. While the Crown had sought her opinion on matters such as brain injury, trauma, causation, timing, injury mechanisms, and whether the injury resulted from accidental, non-accidental, or intentional force, the judge found these topics beyond her qualifications. As a general pediatrician, her education, training, and expertise didn’t extend to such specialized areas.
Emerson William Bryan Whitby died in hospital on June 10, 2020, from blunt-force head trauma.
Caldwell, in his June 3 written decision, said the Crown’s case against Whitby was largely circumstantial evidence and expert opinion.
Court heard Whitby had voluntarily given warned statements to the police in which she consistently denied harming her son, but she didn’t testify. The Crown entered her statements into evidence. In addition, the police had covertly placed listening devices in Whitby’s home and had wire-tapped her cellular telephone, recordings of which the Crown also presented at trial.
Regina Court of King’s Bench Justice Catherine Dawson had acquitted Whitby in September 2023.
“Emerson’s death is a heartbreaking and terrible tragedy,” said Dawson, adding that it was clear to her that everyone who knew Emerson was heartbroken and the trial was difficult for everyone involved.
Whitby and her then boyfriend Taylor Stewart were suspects in Emerson’s death but after Stewart died from suicide, police focused on Whitby.
During Whitby’s trial, Dawson referred to an approximately 7.5-hour long video statement Whitby had provided to police and pointed to the fact that Whitby was questioned by two very experienced police interrogators using various tactics during their time with the accused.
“The officers were persistent, unyielding, and unrelenting,” said Dawson.
Whitby displayed a wide variety of emotions, but her account of what happened was consistent throughout, said Dawson.
-With files from Ryan Kiedrowski
