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Miguel Fernandes, 19 months old, died of third-degree burns that covered 40 per cent of his body. His mother has been convicted of manslaughter. (Peter Power/The Globe and Mail/Peter Power/The Globe and Mail)
Miguel Fernandes, 19 months old, died of third-degree burns that covered 40 per cent of his body. His mother has been convicted of manslaughter. (Peter Power/The Globe and Mail/Peter Power/The Globe and Mail)

CHRISTIE BLATCHFORD

Criminal neglect not enough to keep mom behind bars Add to ...

It is a curious country, this one, that you can be convicted of killing your child and still you get to walk out of the courtroom, free as a bird, la-dee-dah.

That's what happened on Monday at Ontario Superior Court in Toronto.

Melissa Alexander was convicted of manslaughter in the scalding death of her 19-month-old son, Miguel, who died of massive third-degree immersion burns that his mommy dearest slathered with Vaseline and cotton batting, at some point tossing some of the little boy's sloughed-off skin into the garbage can, before she left him and his nearly three-year-old brother, Shawn, in their apartment to go shopping.

That little excursion was part of Ms. Alexander's failure to get the baby any medical attention for what was clearly a catastrophic injury. She phoned 911 only early the next day, by which time he was dead.

Although all the evidence is that the young woman was alone with the children that whole day and probably dunked the boy into a scalding hot tub, an earlier charge of second-degree murder was dismissed by another judge after a preliminary hearing.

Ms. Alexander was committed to trial only for manslaughter, the allegation centring not on what she probably did, but on what she didn't, that in other words she caused Miguel's death by failing to provide what in law is called "the necessaries of life," which includes proper medical care.

God forbid her bail should be revoked while she awaits sentencing just because of that. Heavens no.

Only the terrific, hard-nosed judge, Anne Molloy, even raised the possibility. She asked about the terms of the bail imposed when Ms. Alexander was first charged in the fall of 2007.

Crown prosecutor Barry Stagg mistakenly replied that it was "a house arrest bail," only to be corrected by Ms. Alexander's lawyer, Catherine Currie, who told the judge it was in fact a surety bail put up by Ms. Alexander's grandmother.

Mr. Stagg, roused to action by the judge's question, then suggested that if Ms. Alexander wasn't "asked to step into custody," then perhaps Judge Molloy ought to impose a more restrictive bail.

"Into custody? Why?" Judge Molloy asked, hopeful it appeared that the prosecutor might have an answer and at least make the case, which is just what many prosecutors would have done.

Mr. Stagg muttered weakly about "the severity of the offence," but in the same breath admitted Ms. Alexander has "been on a bail a long time and there's been no difficulty."

The judge asked about Miguel's surviving brother, and if Ms. Alexander had access to him; she doesn't. Left with a prosecutor who seemed indifferent, a defence lawyer who was strongly arguing against jail and with no small person to protect, Judge Molloy had little room to manoeuvre.

She then asked about tightening up the bail, and Mr. Stagg suggested Ms. Alexander report in once a week to the authorities.

Ms. Currie immediately objected. Judge Molloy asked what Ms. Alexander was doing now, "on a daily basis" that would make such a condition so onerous.

Ms. Currie said Ms. Alexander "has been employed and she's looking for a job" and exploring her educational options.

In other words, she's doing sweet boo all, a fact which didn't escape the judge, who arched a brow and imposed the reporting condition. Sentencing was set for April 19.

The judge found that Ms. Alexander, now 25, was the only person who "had direct knowledge of the extent of his [Miguel's]distress"; that she lied like a rug to everybody about how it had happened (she said the baby had pulled a pot of boiling water onto himself); that she robbed him of his "last hope of survival" when she deceived his dad, Sergio Fernandes, about the extent of the injury; that Miguel would have been screaming and utterly inconsolable and that "going shopping for two hours instead of taking him to a hospital is nothing short of shocking."

Judge Molloy said that when Ms. Alexander left to hit the mall, probably around 1 p.m. that day, it's possible Miguel "was still screaming in agony" or possible "that his body was already going into shock and he was starting down the path towards unconsciousness. Either scenario is disturbing."

The little guy didn't have much of a life. He was taken into care by the Catholic Children's Aid Society of Toronto shortly after he was born, as Mary McConville, the agency executive director, confirmed to The Globe and Mail in a recent interview. He remained in care for more than six months before being returned to Ms. Alexander, who by then had moved in with Sergio.

Theoretically, the agency was still supervising the baby at the time of his death.

Maria Fernandes, Miguel's paternal grandmother, remembers the day he was born. "I didn't even know she was pregnant," she told The Globe on Monday, but then Sergio said that, "She [Ms. Alexander]doesn't want him" and asked her to come to the hospital.

It took her 20 minutes to get down there; by then, she said, Ms. Alexander had handed him over to the CCAS. Ms. Fernandes released balloons, including a teddy bear, outside the courthouse on Monday in honour of what would have been Miguel's fifth birthday, last Friday.

More tomorrow about this wretched case.

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