A woman sentenced to life in prison for the "horrific" starvation death of her grandson was not smart enough to be convicted of murder in the case, Ontario's top court is being told.
Elva Bottineau wants the Appeal Court to overturn her second-degree murder conviction in the death of her five-year-old grandson Jeffrey Baldwin.
In material filed ahead of the appeal — slated for March 2 — Bottineau's lawyer Anil Kapoor argues his client didn't realize the starving boy would die.
"Although the facts of this case make the temptation to find Ms. Bottineau guilty of murder overwhelming, there is simply no evidence capable of proving that Ms. Bottineau intended to kill Jeffrey, or that she appreciated he was going to die."
Jeffrey, who weighed just 21 pounds when he died in November 2002, was treated like a dog. He ate out of a bowl with his fingers and often drank from a toilet when he was thirsty, her trial heard.
His cause of death was complications from prolonged starvation.
A pediatrician testified at trial five years ago that Jeffrey had likely been semi-comatose for weeks.
Kapoor notes that an expert in neuropsychology testified at trial that with an IQ of about 69 — borderline mental retardation — Bottineau is less intelligent than about 98 per cent of the population.
Baldwin, sister, were confined to bedroom
Witnesses told court Jeffrey and his sister were confined to an unheated bedroom for as long as 14 hours a day, breathing in the stench of their own urine and feces.
Although the siblings lived in squalor, the rest of the house was normal, including the living quarters of other children in the home, court was told.
Bottineau's longtime common-law partner, Norman Kidman, was also convicted in 2006 of second-degree murder.
He is asking the court to quash his conviction and instead send him to prison for manslaughter.
The couple was supposed to be saviours for Jeffrey and his siblings — who had been abused by their birth parents — but instead the pair used them as a source of income, collecting government support cheques in their names.
By all accounts Bottineau was the primary caregiver and set the rules, while Kidman rarely interacted with the children.
Kidman had offered to plead guilty to manslaughter, and that is what he should have been convicted of, not murder, his lawyer Emily Morton argues.
Ontario Superior Court Justice David Watt called the couple "morally bankrupt" when he sentenced Bottineau to serve at least 22 years and Kidman to at least 20 years before they could apply for parole.
In their appeal documents, they argue Watt erred in convicting them.
Bottineau intended to keep Jeffrey alive — "albeit in abusive and horrific circumstances" — because she wanted to collect support money, Kapoor states.
He wants the court to acquit Bottineau outright. Failing that, he wants the convictions quashed and a new trial ordered, or her parole eligibility reduced.
If the court won't substitute a manslaughter conviction for Kidman, Morton is asking for a new trial or a lower parole eligibility.