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Judge throws out case, saying there was little to no evidence of murder

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A judge has slammed the Manitoba Prosecutions Service for forging ahead with its murder case against a man when it should have seen there was little to no evidence to implicate him in the death of his foster son.

"It should have been apparent at some point long before now that this charge could not be sustained," Court of Queen's Bench Justice Deborah McCawley said Wednesday in her reasons to acquit Roderick Blacksmith.

Blacksmith was accused in January 2009 of second-degree murder of his 13-month-old foster son, who cannot be identified under a court order.

Blacksmith's trial collapsed Friday after his defence lawyer won a "no evidence" motion that saw McCawley throw out the case entirely following an 8-day-long trial.

In reasons delivered Wednesday McCawley was blunt: Blacksmith was not being cleared on a technicality.

It was a case where "it's hard not to think" a charge never should have been laid, she said.

Now, McCawley is turning her mind to whether the Crown should pay Blacksmith's legal bills — a possible turn of events she acknowledged was very rare.

The Crown alleged Blacksmith had the "exclusive opportunity" to inflict a fatal head injury on the victim at a Gillam home on Nov. 12, 2008, either by shaking or assaulting him. Its position was he hid the injury from his wife and lied to police.

However the Crown's own medical evidence showed it was "impossible" for the child's injuries to have been inflicted within a two-hour time frame as alleged.

McCawley said it appeared prosecutors were taking bits of evidence and mischaracterizing or effectively spinning them in "artificial and unsupported" ways to bolster their theory.

She also said it was "troublesome, to put it mildly," that a report was generated in 2009 which offered a plausible alternative to how the victim was injured — and that her impression was that a Crown attorney was present at the hearing where this came out.

The Crown, however, said this report was not in their possession (it was a Child and Family Services document) and they weren't aware of it until the trial, when Blacksmith's wife disclosed its existence in her testimony.

McCawley's review of the evidence showed Blacksmith was a loving and concerned father who was the one who called 911 in a panic when he found his foster son unresponsive and covered in vomit in his crib.

Other evidence heard was that the child slipped and fell in the bathtub days before he collapsed, but the babysitter didn't disclose this had happened. The babysitter was arrested by RCMP, but never charged. The babysitter ultimately admitted she "dropped" the child, McCawley said.

As well, court heard two days before the child died, he had been playing with another child and had hit his head when he fell backwards.

Paramedics who arrived to the urgent 911 call at Blacksmith's home testified they saw him doing everything possible to save his child, said McCawley.

A hearing is scheduled for later this year to determine if the Crown will have to reimburse Blacksmith for his court costs.

 

james.turner@freepress.mb.ca

History

Updated on Wednesday, February 5, 2014 at 1:25 PM CST: Removes reference to judge "accusing" prosecutors

8:02 PM: Fixes typo.

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