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Rosen considers appeal in Boothe case

Toronto criminal lawyer John Rosen says cases involving the homicide death of a child are among the most emotionally charged and “difficult to litigate.”

He made the comment as he weighs the possibility of launching an appeal of a jury’s second-degree murder verdict for a father and stepmother who have been convicted of killing their 10-year-old son, Shakeil Boothe, in Brampton.

“It’s being considered, but it’s a difficult appeal,” Rosen tells AdvocateDaily.com.

Rosen, partner with Rosen Naster LLP, notes that cases such as the death of Shakeil Boothe nearly three years ago are among the most heart-rending for juries to handle.

“Subject to any legal ground of appeal, overall I think it was a fair trial – the jury was out overnight as they spent from noon on Friday until 4:30 p.m. on Saturday deliberating on the proper verdict so it wasn’t easy for them,” he says.

Rosen, who represented the boy's father Garfield Boothe, says a sense of the child’s personality came out at trial in that the jury heard he was initially bright and chatty and then seemed to go into a decline over about four months.

He says Garfield Boothe and the child's stepmother, Nichelle Boothe-Rowe, were at one point charged with first-degree murder. But at the preliminary hearing stage, the judge discharged them on that charge and sent them to trial on second-degree murder.

“This case was somewhat unique because there was evidence of child abuse having gone on for at least four months or longer in the form of corporal punishment – that is, strapping or hitting the child,” he says. “There was also withholding food as a form of discipline or punishment.”

Then there was a failure to provide care by failing to take the child to the doctor when his wounds became infected, says Rosen.

The infection went to his lungs and he got pneumonia, he adds.

“There’s a failure to provide the necessities of life, so it is by definition, a manslaughter, at the least,” says Rosen.

But the question at trial became who administered the final beating, he says.

“From the jury’s verdict, it would appear that they found that the father administered the final beating,” Rosen says. “And on the evidence, there’s no suggestion that the stepmother was present, so from a layman’s point of view, how do you convict the non-present parent of murder?”

Counsel for the stepmother conceded that her conduct in not doing enough to protect the child, not taking him to the doctor and her failure to stop abuse from happening was a breach of her duty and constituted manslaughter, he says.

The Crown’s position was that by failing to provide the necessaries, the stepmother created a situation where she knew that the father would eventually kill the child, he says.

“And I think that’s what ultimately got her convicted of murder,” Rosen says.

He says this case illustrates that even the person who “doesn’t actively participate may find themselves convicted of murder if the circumstances that they find themselves in give them knowledge that the other partner would probably kill the child.”

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