Melissa Alexander's feeble efforts to treat her baby son's catastrophic burns were enough to satisfy community standards, her lawyer has suggested.
Now 25, Ms. Alexander is charged with manslaughter for failing to provide her son with what are called in law "the necessaries of life," a Criminal Code definition that includes medical attention.
Eighteen-month-old Miguel Fernandes suffered grievous burns to 40 per cent of his body on Sept. 11, 2007, succumbed to shock and was pronounced dead at hospital early the next morning.
Ms. Alexander, Ontario Superior Court Judge Anne Molloy has heard, dressed the boy's raw red wounds with cream and wrapped them in cotton batting, but then went out shopping, leaving Miguel and his big brother Shawn, then almost three, alone for a time in their Jane Street apartment.
Only at least 10 hours after the incident did Ms. Alexander deign to call 911, then to report Miguel was dead and - a lie -that he had pulled a bowl of boiling water onto himself and was therefore the author of his own misfortune.
In fact, experts have testified the little boy suffered "immersion-type scald" injuries, meaning he'd been placed in hot water, likely the bathtub.
Friday, Ms. Alexander's lawyer Catherine Currie told Judge Molloy that she should acquit her client for two reasons.
First, in what could be termed the "why bother?" prong of the defence, Ms. Currie argued that because Miguel may have died even if he had received prompt care, Ms. Alexander's delay in seeking help - if reporting a death in any way qualifies as help - wasn't significant.
In the second prong, Ms. Currie told the judge, Ms. Alexander's conduct after the little boy was injured "was not a marked departure of [what]a reasonably prudent parent [would do]in the circumstances."
What's more, Ms. Currie then appeared to caution Judge Molloy, who is hearing the case without a jury, against judging Ms. Alexander too harshly.
"To take my client and ignore the real circumstances that she was in is to deny the situation of many parents who are looking after their children, to look at her and say 'You did the wrong thing, you should have phoned 911, that's it, end of story.' "
Ms. Currie then suggested that measured by a reasonable "community standard," what Ms. Alexander did after Miguel's terrible injury was if not Jim-dandy, then sufficient to get her off the manslaughter rap.
"What I'm suggesting to you is that the minimum standard of care in this case, because the child died, obviously was woefully inadequate, but it was care," she told Judge Molloy. The ointment, the cursory first-aid Ms. Alexander gave the little boy, Ms. Currie said, ought to count for something. "My client did not provide no care for her child."
"And you are saying that meets the standard of care of what an average person would do?" Judge Molloy asked.
"I'm saying that it met a minimum standard of care and was therefore not a marked departure," the lawyer replied.
A few minutes later, apparently swept away by her own rhetoric, Ms. Currie told the judge flatly that "there was nothing hidden" by Ms. Alexander.
"Let's just get the elephant out, shall we?" the judge said.
"She said that this child pulled water down on top of himself. That's impossible. That isn't what happened. And she told that story to her sister, her husband and all of the emergency personnel that were there, as well as the 911 operator. She told that story all day long … and that isn't what happened.
"That's not physically possible and that's as plain as the nose on your face when you look of the pictures of that little boy. So, to stand there and say to me she hid nothing is really stretching."
Ms. Currie then stubbornly insisted Ms. Alexander "didn't hide the nature of his injuries."
"No, but she did. … She did. She said that he pulled water down on himself and burned his legs. That isn't what happened and she knew that isn't what happened, so she did a fair bit," the judge said.
She continued: "And now that we have acknowledged the elephant in the room, what do I take from that about the standard of care and why she did or did not take this child to a doctor or to a hospital or tell anybody actually what had happened?"
Ms. Currie, undeterred, then went on to baldly misstate evidence heard this week from Sergio Fernandes, Miguel's father and Ms. Alexander's common-law husband. Testifying via video link from Portugal, where he now lives, Mr. Fernandes said that when he arrived home from work that day and tried to unzip Miguel's sleeper to have a look at the minor burn that had been reported to him, Ms. Alexander warned him off by saying Miguel would only start crying again.
"She told Sergio about the injuries as soon as she could and she tried to get him to look at the injuries…" Ms. Currie began.
Judge Molloy snapped, "There's no evidence of that," and abruptly announced a short break.
She will release her decision Feb. 14.