Assault charges against day-home owner stayed

A day-home operator no longer faces charges of assaulting an infant under her care after a judge ruled an incriminating statement the accused made to police could not be used at her trial.

“Without the statement, we don’t have sufficient evidence to continue prosecution,” prosecutor Patricia Yelle told Court of Queen’s Bench Justice Carolyn Phillips following the decision Wednesday.

“The Crown enters stays on both charges.”

Phillips ruled following a voir dire (trial within a trial) that the accused constitutional right to counsel was violated during a taped interview with Det. Patricia McCallum of the city police major crimes child abuse unit.

The judge then discharged the jury that had been waiting in the wings for two days while both sides argued the admissibility of the statement.

The accused, 35, a native of El Salvador, was charged with assault causing bodily harm and criminal negligence causing bodily harm last August after doctors concluded an 111/2-month-old boy was a victim of shaken baby syndrome.

Defence lawyer Pat Fagan said most indications of shaken baby syndrome were not present in the child, who has recovered, and argued his client had lied when she told police she shook him after earlier saying he fell downstairs.

“She said the reason she changed her story was because she was afraid of police and just wanted to go home,” said Fagan, who agreed the contents of the statement were damaging.

The judge said the accused did not sufficiently understand her right to counsel and, when there is a language difficulty, police must take steps to ensure constitutional rights are not violated.

“This would not have occurred if there was an interpreter from the outset,” said Phillips. “This person is from a wartorn country who has a fear of police and English is not her first language.”

The Crown could revive the charges within a year, but it rarely does.