2. another baby death – legal expert

3. True Fiction – Stefan Zweig. “Un Soupçon légitime”

I don’t listen to the radio much anymore.  Silence reigns in my house, and I enjoy it.  I miss the good stuff – classical music with serious hosts, warm, friendly, tough interviewers, good conversations – and just can’t take the bad stuff, bad news from the world entire stuffed into 5 minute local news broadcasts:  “a bus loaded with teen agers on a school trip in Uruguay crashed off a mountain and all were killed”.

So how is it that as rarely as I turn the radio on – and it is almost always tuned to CBC – it seems I inevitably get a jolt of pain, of rage, of indignation.  I go into the kitchen to start dinner, perhaps, and I hear a CBC legal expert being interviewed about a recent baby death in Montreal.

The previous evening a father was bathing two young children, a one year old and a two year old, and left them in the bath for a moment, and when he returned the infant was unconscious and it subsequently died.

The police were investigating but so far (dinner time the next day), no charges had been laid.  The interviewer adroitly mentioned the recent death of an infant in a dog attack in which the mother and grandmother were charged immediately, and she asked the legal expert what was different in the two cases.  The legal expert replied that the death of the infant in the bath was a tragedy while the death of the infant in the dog attack was not.  And when further asked why did the police so quickly charge the mom in the dog attack, he replied that it was necessary for the public perception to see it dealt with in this way.

I don’t understand any of this. I don’t believe my ears.  I am dismayed, shocked and horrified, and I say so by email.  But expressing my opinion doesn’t erase the legal one.

After some weeks I ask CBC for a transcript of this interview.  I want to be fair, I want to understand why in the eyes of a legal expert the death of a three-week old infant in a dog attack is not a tragedy, I would like to understand what it might be if it is not that. I am told the interview is no longer available except from the company that sells tapes and transcripts, for a hefty price.  I write to a CBC executive, the one who had previously mentioned “fairness”, and explain to her in detail that I am writing a three-part piece for my web site and would like a copy of the interview with the legal expert, “fearing that my memory does not serve HIM well….”

Her reply, copied to several other CBC executives, comes the next day:

“All copies of CBC produced material are for personal/non-commercial and non-public use only.  If the intention is for public or commercial use (including the Internet), copyrights would have to be acquired.  Your lawyer would have to go through our legal department to sort that out.  Sorry I can’t be of more help.”

After consulting with “my inner lawyer”, I conclude that:

a. my web site is purely non-commercial, has no advertising, earns no money for me or anyone else.

b. I want the transcript to refresh my memory, not to publish it.  That would be for my personal use.

Let us recall that the first charge, for both the mom and the grandmother, was “criminal negligence causing death”.  And let me remind that “the pair”  was immediately taken into custody and spent the night in jail, in a cell, not as a pair, each one alone. The girl found this part “very difficult”. [I find it excruciatingly difficult - I keep wondering if she was nursing, if her breasts were engorged with her baby’s milk.] “I don’t have words. I”m completely broken, that”s all”,  she told a French language TV program.

The following day the grandmother was released without charges and the charge against the mom (whose name cannot be mentioned because she is a child herself) was upgraded to “manslaughter”.

“Manslaughter constitutes an unlawful killing of another person without malice, either express or implied.  The unlawful killing may be either voluntary by virtue of acting upon a sudden impulse, or involuntary.”  [In Canada, from R v Couperthwaite 2006 MBQB 111 ]

Criminal negligence causing death is defined this way:
“Every one is criminally negligent who in doing anything, or in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.”  [From Canada's Criminal Code, ¶219:]

“The Canadian Judicial Council’s standard set of jury instructions includes this extract on topic:
‘The Crown must prove beyond a reasonable doubt that the acused’s (sic) conduct showed a marked departure from the conduct of a reasonable person in the circumstances; and that a reasonable person in the same circumstances would have foreseen that this conduct posed a risk of bodily harm….

In deciding what a reasonable person would have done or foreseen, you must not take into account (the accused’s) individual characteristics or experiences.’”

That last line is interesting, isn’t it?  So you can not take into account the father’s individual characteristics or experiences in the first instance nor can you take into account the 17 year old mom’s individual characteristics or experiences.  OK.

In the case of the father, I have no information whether he was charged or not.  An autopsy was to be performed, presumably to ascertain the cause of death, the investigation had to be completed, and then it would be submitted to the crown prosecutor.  Four weeks have elapsed. These things take time.  Usually.

But in the case of the teen mom, the crown prosecutor, Caroline Fontaine, – and this is a different jurisdiction from the other baby death -  “defended the decision [to charge her with the upgraded charge of manslaughter], saying it was made ‘because we had the proof that we have analyzed’” A careful reading of this charge leads one down a path towards a horrendous conclusion,  one that appears to have been made very quickly, based on “proof” that was “analyzed” in less than 24 hours.

And in the time that has passed since then, I, for one, am no less haunted by this true tragedy.  I talk about it with my friends, my family…and much to my surprise, I sometimes hear a cautionary remark:  “Well, you should never leave a baby alone.”  Never alone in a bath, that’s for sure.  But never alone?

Never?  Never alone in his crib in a room of his own?  Never alone on a king-sized bed in your parents’ home?  Never alone in her car-seat on the big easy chair in the living room?  Never alone asleep in her carriage on the lawn just beside where the adults are seated having tea?

True fiction, another tragedy, a beautiful story told by Stefan Zweig, an author long dead, a story just published in French, just put into my hands.  By chance?  I think not.

end of part two

part three is here: True Fiction – “Un soupçon légitime” – Part three

part one is here: http://www.elainezimbel.com/do-you-believe-what-you-hear-on-the-radio-read-in-the-paper-true-fiction