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Crown might have to pay cleared dad's court costs

Prosecutors should have quashed case earlier: judge

A high-stakes court battle looms over whether the province will be forced to pay a Manitoba dad's legal fees now that he's been totally cleared of allegations he killed his foster son.

It should have been very clear to the Manitoba Prosecution Service some time ago the murder case against Roderick Blacksmith wasn't a sound one, Court of Queen's Bench Justice Deborah McCawley said Wednesday.

"For the past five years, Mr. Blacksmith has had a charge of second-degree murder hanging over his head," she said in her decision to acquit Blacksmith for lack of evidence. "While I do not single out any one individual, it should have been apparent at some point long before now that this charge could not be sustained," she said.

Blacksmith was charged with second-degree murder for the death of his 13-month-old foster son in November 2008. He found the developmentally delayed boy unresponsive in his crib and covered with vomit soon after giving him a bath and putting him to bed with a warm bottle.

Blacksmith called 911 and sought help, but despite efforts to revive the boy, he died the next day in hospital in Thompson. The child cannot be identified under a court-ordered publication ban.

Defence lawyer Saul Simmonds won a "no evidence" motion at the close of the Crown's case last Friday.

McCawley signalled she's considering making the Crown pay Blacksmith's legal fees. She gave lengthy reasons Wednesday and was sharply critical of the Crown for not quashing the case earlier.

She acknowledged Blacksmith was committed to stand trial for murder after a preliminary hearing in provincial court. But the case she heard should have been reviewed and dropped long ago, McCawley suggested.

"It is hard not to think that this is a case where a charge should not have been laid or, once laid, should not have been proceeded with in light of the Crown's own evidence," she said.

The trial proceeded in Winnipeg over eight days last month. The Crown alleged Blacksmith had "exclusive opportunity" to injure his foster son and cause the traumatic brain injury that led to the boy's death when he was the only adult at home the evening before.

But one Crown medical expert testified it was "impossible" for the child to have sustained the injuries in the two-hour time frame it was asserted they happened in, McCawley said. As well, there was evidence showing the child had been accidentally injured by others in the days before he died, including by a babysitter who was arrested by RCMP but never charged.

McCawley criticized prosecutors for appearing to take bits of what Blacksmith told police out of context and portraying them as examples of his dishonesty.

"To try and impose a particular meaning on a few words, that in context of the rest of the evidence is artificial and unsupported, only weakens the Crown's case further," she said.

This isn't a case where legal wrangling led to Blacksmith walking free, McCawley said.

"Mr. Blacksmith is not getting off on a technicality," she said. "The Crown has failed to provide any evidence on which a reasonable jury, properly instructed, could convict."

A hearing to determine whether the Crown will pay costs to Blacksmith is set for April 10. McCawley signalled if such an order is made, it would be a very rare event.

james.turner@freepress.mb.ca

Comments are not accepted on this story due to a publication ban.

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