Her baby’s death was a tragedy. Did it have to be a crime?

Lindsay Hewson’s son came into the world early and fast — born almost as soon as his mother arrived at the hospital in an ambulance, as the rest of the family was rushing over in a taxi.
“He was a beautiful baby, perfect size, big grey eyes, full head of hair,” she said. “As he got older, he was bright, alert, funny, active — and a smile that kind of changed people who didn’t like babies into baby lovers.”
Just fourteen months later, a chain of challenging events would lead to the boy’s death, and his parents would be criminally charged.
The Crown’s decision to prosecute was so questionable that a judge took the rare step of suggesting it was not in the public interest to proceed to trial. But the Crown went ahead anyway, forcing a grieving Hewson, her partner, and the court system into a process that dragged over three years only to end in January with most of the charges gone and Hewson with no criminal record, and no jail time.
Hewson’s lawyers are left asking: What was the point?
They argue she should have never been prosecuted to begin with, as an under-resourced justice system is struggling under a massive caseload and serious criminal matters are being thrown out due to delay.
In the face of that backlog, advocates are calling on Crown attorneys to rethink which cases are actually worth pursuing, and to filter out more matters that are either weak or not in the public interest to prosecute. These calls come at a time of heightened scrutiny on prosecution decisions in the wake of the acquittal of Umar Zameer, who was prosecuted for first-degree murder in the death of Toronto police Const. Jeffrey Northrup in a high-profile case the Crown had been told by a judge was weak from the start.
’All I could do was scream’
Hewson, her partner and their three children were evicted from a Toronto shelter as it was being converted into a COVID-19 response centre at the start of the pandemic in 2020. Desperate to find somewhere to go, they accepted an offer to stay with a couple they knew.
After moving in, they learned the couple were doing illicit drugs, and once again scrambled to find an alternative, persuading a relative to take them in. They managed to move the first two children in just after midnight in May 2020 while the baby was asleep back at the other couple’s apartment. Hewson and her partner planned to finish packing and move into the relative’s home with him later that day.
Just hours before the final move, something was clearly wrong with the little boy playing on the floor.
“I pick him up and I can see that he was losing colour in his face,” Hewson, 44, told the Star in an emotional interview at her lawyers’ office. “I started to panic, I was screaming, I wasn’t making any sense. Even in my head, I was thinking ‘Say something,’ but all I could do was scream.”
Her partner started performing CPR as Hewson banged on doors, pleading for help and calling 911. It was later determined the boy died after ingesting a mix of heroin, cocaine and fentanyl — likely off the floor and presumably left by the other couple.
“If I had known things were going to play out this way, I would have just stood out in the street with my children,” Hewson said through tears.
The following year, Toronto police charged Hewson and her partner with criminal negligence causing death and failing to provide the necessaries of life. They were accused of failing to keep their son safe from harm after discovering the couple were doing drugs in the apartment, and were released on bail.
The other couple were never charged.
’A sinking boat’
The case was an example of “the criminalization of poverty,” said one of Hewson’s lawyers, Megan Savard. “If a wealthy white woman had left a dishwasher pod on the floor and her child had consumed it and died, and had she responded exactly as urgently and responsibly as our client responded, I think it is fair to say she would never have been charged.”
The Crown has complete discretion over which charges laid by police should proceed in court — if any — and is required by policy to only go ahead “if there is a reasonable prospect of conviction and it is in the public interest.”
The Star asked the Ministry of the Attorney General for comment on the decision to prosecute Hewson, and received a response from Jack Fazzari, spokesperson for Attorney General Doug Downey: “Decisions made by Crowns are made independently of government and in the proper exercise of their discretion.”
(This discretion has come under intense scrutiny following the decision to pursue the Zameer murder case, which the Attorney General’s office also said was the independent choice of Crown attorneys.)
The president of the Ontario Crown Attorneys’ Association said prosecutors are constantly assessing the strength of their cases and filtering out weak ones while dealing with a “crushing workload” and lack of resources.
“Crowns have to consider many things at the same time,” said Betty Vavougios. “Safeguarding the public, ensuring the accused is being treated fairly, and victims are being treated fairly and respected as well.” 
Crowns need to adjust their stance on what is actually in the public interest to take to trial, said Stephanie DiGiuseppe, assistant treasurer of the Criminal Lawyers’ Association.
She said the Crown should become more receptive to alternatives like restorative justice, which research has shown can be effective in holding people accountable and providing healing to victims. And the Crown attorneys actually prosecuting the case need to be given more leeway to make decisions, rather than having to get sign-off from more-senior prosecutors who are less directly involved.
The crisis of delay in Ontario courts shows “Crowns right now are in a sinking boat, and they just keep bailing,” DiGiuseppe said. “We really need to fix the boat.”
’Helpless’
The height of Hewson’s anguish came during the preliminary inquiry, which is where the Crown presents its case and a provincial court judge determines if there’s sufficient evidence to move it to trial.
Hewson and her partner were forced to view surveillance footage from when their son died, including clips of Hewson frantically banging on doors and of her partner carrying their son in his arms out of the apartment accompanied by firefighters.
“The preliminary was terrible for myself and my partner, it was very emotional, and it set back all the advances I had done in my grief counselling,” she said.
Savard and her co-counsel, Kally Ho, described feeling “helpless,” as they could clearly see the emotional toll the evidence was having on their client and her partner.
“Their grief was so tangible,” Ho said. “You’re watching these individuals relive literally the worst day of their life.”
The threshold to commit someone to trial after a prelim is low; there must be some evidence that a jury could convict on. Ontario Court Justice Jonathan Bliss found that the test had been met for the charges, as well as for the charge of manslaughter, which the Crown had added.
But in a rare move, Bliss concluded his ruling by questioning the necessity of putting the parents on trial.
“I wish to stress, however, that the fact that there is some evidence that requires the defendants to be committed for trial does not mean that the defendants would, or even should, be convicted, nor should their committal for trial be taken, in the circumstances of this case, to be an endorsement of the view that it is in the public interest to prosecute them for the death of their son,” the judge wrote.
Such a comment is not only rare but significant, Savard said, “because it both highlights the lack of merit in the prosecution,” as well as the inadequacy of the law around preliminary inquiries, as she argued that judges at that stage should be more empowered to filter out weak cases.
’Not an overwhelming case’
The Crown pushed ahead to what was to be a multi-week trial in the Superior Court. Savard believes the decision to keep going was made by prosecution officials other than the trial Crown attorney, Joshua Chan, who she also believes was moved by Hewson’s suffering.
“A major problem with this case is that the ultimate decision to prosecute was made by people who had no opportunity to experience — I would say on a visceral level — the impact of this prosecution on everyone involved,” she said.
The trial never happened; Hewson made the difficult decision to plead guilty to failing to provide the necessaries of life. Savard said the guilty plea “is a reflection of the Crown declining to exercise its discretion” to halt the prosecution. 
“I would want the public to understand that the fact there is a formal guilty plea to a criminal offence does not in any way set Lindsay apart from the average parent or person,” Savard said. “Almost all of us in our lives are going to commit a technical crime, and most of us don’t get pushed through the criminal justice system for it, either because it’s never reported or because the Crown exercises discretion.”
A statement of facts agreed upon by the Crown and defence and filed in court said Hewson’s plea was specifically based on her acceptance of the fact that she did not move her son at the same time as her other children. Hewson feels the guilt that any parent would likely feel in the circumstances; part of her motivation to plead guilty was also because she couldn’t face having to view the evidence yet again at a trial.
“I feel like it’s time to let his spirit rest,” she said.
The decision to plead guilty is up to the accused person but Savard maintains it was a “profoundly defensible” case. Had it gone to a jury, Savard would have argued that “the person who has the means to rent an Airbnb can be expected to get their children out of an unsafe house faster and more effectively than a person who does not have those means and has to rely exclusively on the generosity of strangers or the charity of family.”
The Crown asked the court for a conditional sentence, meaning no jail time, but Hewson would get a criminal record. Superior Court Justice John McMahon sided with the defence this past January and granted Hewson a conditional discharge — no jail time or criminal record — after finding that her level of moral culpability was “extremely low.” She will be on probation for three years. The charges against her partner were then withdrawn by the Crown.
A long-time judge, McMahon said the facts of the case were so unique that he found it “exceptionally difficult” to come up with the appropriate sentence, while noting that “this was not an overwhelming case for the Crown.”
There were far less severe options that the Crown should have pursued, Savard said, including having Hewson take parenting support classes and re-assessing the case once that work was completed.
“If the Crown was interested in minimizing harm, in actually addressing what happened, there were ways they could have done that that didn’t involve the violent arm of the state,” Savard said.
At her sentencing — three years after she was charged and almost four years after her little boy died — the court heard that Hewson’s oldest child is off to university this fall, and that Hewson has been successfully co-parenting her second child with relatives.
“It’s been a long couple of years of my life, and we have to just continue on the road that we’re on,” Hewson told the Star, tearing up.
“My other children deserve to have the best of me. They continue to make me happy and I’m so lucky to have them. If it wasn’t for them, I don’t know where I would be.”