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Complicated evidence delays closing arguments in Chelsea Whitby's second-degree murder trial

Warning: This story contains details some readers may find disturbing.

Crown prosecutors have called their final witness in Chelsea Whitby’s second-degree murder trial. Now, they are fighting for most of their evidence to be admissible in the case before closing arguments can be heard at the Court of King’s Bench in Regina.

Whitby is charged with second-degree murder in the death of her 18-month-old son, Emerson, who died from blunt force head trauma on June 10, 2020.

The majority of the Crown witnesses’ testimonies focused on prior injuries that Emerson sustained while in his mother’s care from mid-April to late May 2020. Those testimonies were submitted as evidence on a voir dire, which means a separate hearing must be held to determine if the evidence is admissible and can potentially be entered as evidence for the trial.

Both the Crown and defense made their arguments in relation to the voir dire on Friday.

“We’re not asking the court to forge new terrain, this is an established area of law,” said co-Crown prosecutor Adam Breker.

Breker argued the prior injuries and events in the weeks leading up to Emerson’s death are relevant to show the nature of his relationship with Whitby.

Prosecutors suggested the evidence points to a pattern of abuse. At the very least, it shows Whitby’s “lack of suitable care” for her son,” Breker said.

The defense argued the Crown’s case is “complicated” and the evidence that references past injuries should not be admissible in the trial.

“This is not a trial of everything that Ms. Whitby has ever done,” said defense lawyer Darren Kraushaar.

Whitby is not on trial for child abuse, Kraushaar added. She is on trial for intentional homicide.

He argued this type of evidence “is not automatically admissible” and could be considered “a little bit dangerous.”

Both sides believe the other is “putting the cart before the horse.”

Kraushaar argued the Crown is prematurely trying to establish motive through prior injuries even though it is not known if Emerson died as a result of homicide.

Breker said the judge does not need to determine if it was homicide at this point in the trial. She only needs to decide if the evidence in question is admissible for trial. At that point, the judge can determine if she accepts the evidence and weigh its relevance.

The trial, which started three weeks ago, has been adjourned until April 21 at which time the judge will set a date to make a decision on the voir dire.

Closing arguments are expected to be scheduled after that.


Ophthalmologist Dr. Konrad Chmiel took the stand on Friday as the Crown’s last witness in the trial.

Chmiel examined Emerson’s eyes and optic nerves after he died. He found hemorrhages near the boy’s optic nerves as well as the front of his eyes.

Chmiel was added as a witness on short notice to answer one key question from the Crown: did he consider intracranial pressure as a possible cause of Emerson’s retina hemorrhages.

Some of the hemorrhages near the nerve were likely caused by raised intracranial pressure, Chmiel testified. However, he said the hemorrhages near the front of Emerson’s eyes did not fit that pattern.

Ultimately, Chmiel concluded the hemorrhages were a result of trauma not disease. He partly based his opinion on the skull fracture and other injuries noted in Emerson’s history.

However, the defense argued Chmiel has “very limited experience” in this area and was basing his conclusion off of dated injuries.

More details to come... Top Stories

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