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Copies of family photographs of deceased baby Miguel Fernandes, provided by his grandmother, Maria Fernandes. She is the father's mother. A North York woman who shopped for a CD while her baby lay dying of excruciating burns to 40% of his tiny body was found guilty Monday, Feb. 14, 2011 of manslaughter. The judge found that Melissa Alexander left 19-month-old Miguel Fernandes home alone, then lied to his father, Sergio Fernandes, assuring him that their child's injuries were not serious because she applied ointment and gauze on the toddler. (Peter Power/Peter Power/The Globe and Mail)
Copies of family photographs of deceased baby Miguel Fernandes, provided by his grandmother, Maria Fernandes. She is the father's mother. A North York woman who shopped for a CD while her baby lay dying of excruciating burns to 40% of his tiny body was found guilty Monday, Feb. 14, 2011 of manslaughter. The judge found that Melissa Alexander left 19-month-old Miguel Fernandes home alone, then lied to his father, Sergio Fernandes, assuring him that their child's injuries were not serious because she applied ointment and gauze on the toddler. (Peter Power/Peter Power/The Globe and Mail)

CHRISTIE BLATCHFORD

Why the charge was manslaughter in scalding death of baby Miguel Add to ...

How did the scalding of little Miguel Fernandes end up in Ontario Superior Court as a charge of manslaughter and not second-degree murder?

The differences in the two offences are significant, as Melissa Alexander, Miguel's mother, may appreciate more than most on April 19 when she is sentenced for the lesser crime.

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Murder is where the person who causes a death meant to do it or meant to cause bodily harm she knew was likely to cause death and was reckless about whether it happened or not; this is mens rea, Latin for the requisite guilty mind.

Manslaughter is simply culpable homicide that isn't murder.

The maximum sentence for manslaughter is life in prison, where for murder, life is the minimum. Unless a gun was used, there's no minimum for manslaughter.

Ms. Alexander was first charged with aggravated assault in the little boy's Sept. 12, 2007, death.

But once the autopsy was completed - it showed the 19-month-old had suffered third-degree "immersion" burns, a finding completely at odds with his mother's claim he had pulled down a pot of boiling water onto himself - Toronto Police upped the charge against her to second-degree murder.

By the spring of 2009, the matter came before Ontario Court Judge Leslie Pringle for a preliminary hearing, the purpose of which is to determine if there is sufficient evidence upon which a reasonable jury, properly instructed, could make a finding of guilt.

It isn't a tough hurdle, but where the case depends on circumstantial evidence, as the one against Ms. Alexander did, the preliminary judge must engage in a limited "weighing of the evidence."

Key to the Crown's case was Ms. Alexander's feeble explanation for Miguel's catastrophic burns: She told the "pot of boiling water" story to no fewer than five people - three paramedics who arrived after she called 911 the next morning to report her son was dead, and, earlier in the day, her sister Rachel Campbell, and Miguel's father, Sergio Fernandes.

In fact, in Ms. Alexander's version, Miguel would have been expected to suffer splash-type burns. What the autopsy showed instead was that he was plonked into a scalding tub, with only the skin on his bent knees and tip-tops of his toes spared on his lower body.

Crown prosecutors argued that Ms. Alexander's story was a fabricated statement that jurors could use as evidence of her guilt if they could reasonably infer from it her intent.

But Judge Pringle found that because Ms. Alexander made minimal efforts to treat the burns (Vaseline and bandages) and had accepted "some responsibility" for Miguel's injuries by acknowledging she should have taken him to hospital, her statement about the pot spilling, while "obviously inconsistent with the burns," didn't have the "hallmarks of a manipulative lie."

Interestingly, when Judge Molloy convicted Ms. Alexander earlier this week of manslaughter, she said of that very same evidence, "It is like saying that putting a Band-Aid on a gunshot wound is adequate medical treatment because, after all, you did something rather than nothing."

Judge Pringle also appeared to do what she said herself judges aren't supposed to when engaging in the evidence-weighing exercise - she seemed to weigh the possible inferences jurors might draw from Ms. Alexander's conduct, and then cast aside one of them.

So while she wrote that where there are "logical but competing inferences … it is an error for the preliminary inquiry judge to discharge the accused if one of the inferences supports the charge before the court," arguably she did just that.

Concluding "there is no 'common sense' inference" that Miguel's devastating injuries must have been intentionally caused or that Ms. Alexander's failure to adequately treat them was "a deliberate act of harm," Judge Pringle discharged the young woman on second-degree murder on Nov. 16, 2009.

Senior Crown attorneys didn't appeal.

Thus it was that Ms. Alexander, who will soon turn 26, came to Judge Molloy's court charged with manslaughter.

The young woman who had been alone with Miguel and his brother Shawn, almost three at the time, all that fateful day and who had left them, one boy dying and the other watching, for two hours as she went shopping, was no longer charged with directly causing her baby's death, but rather was facing a charge based on what she didn't do after Miguel was - apparently mysteriously - so gravely hurt.

As for Ms. Alexander, the best sense of her came from Judge Molloy's decision.

"I am fully confident," the judge wrote, "that if Melissa Alexander sustained third-degree burns to 40 per cent of her own body, she would not have contented herself with some Vaseline and absorbent cotton."

On Facebook, Ms. Alexander is known as Melly (Bella Melly) Alexander. As she wrote on her wall this week: "I know I am going through the worst time of my life right now but know this I am here to stay and nobody can not take me down."

Quasi-literate, as such postings often are, it was still less egregious than what she wrote on Dec. 28, 2009: "So I had a very good Christmas this year and now I am entering the new year with a change … because no matter what I do I always get the worst part of the stick … and it's like it's always my fault. Now I am making this into saying 'NO MORE'."

A final word on all this Saturday.

cblatchford@globeandmail.com

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