A judge Wednesday questioned why a Manitoba man accused of killing his 13-month old foster son was ever charged or brought to trial and called the Crown's case against him "ludicrous."

Justice Deborah McCawley dismissed a second-degree murder charge against Roderick Blacksmith last week after his lawyer argued prosecutors had proffered no evidence to convict him.

"It should have been apparent at some point long before now that the charge could not be sustained," McCawley said.

"To be clear, Mr. Blacksmith is not getting off on a technicality," she said. "The Crown has failed to provide any evidence on which a reasonable jury, properly instructed, could convict."

A court order prohibits identifying the child by name. Trial heard Blacksmith checked on the child in bed, Nov. 12, 2008, and found him not breathing, with vomit in his mouth. Blacksmith told police he tried to clear the child's airway and performed CPR before calling for an ambulance.

Doctors testified the child sustained a serious head injury that would have caused swelling to his brain and resulted in symptoms including lethargy and vomiting.

Crown prosecutors alleged Blacksmith assaulted or shook the child up to two hours before checking on him in bed, when he was the only adult in the house.

That theory was in direct conflict with the evidence of doctors who testified the child's head injury would have to have been sustained up to three days earlier.

Prosecutors argued Blacksmith lied when he told police the child had eaten a blueberry baby dessert without vomiting after having vomited his meal earlier in the day.

McCawley said the child obviously only kept the food down temporarily as he was found to have later vomited in bed.

"The suggestion that ... (Blacksmith's) evidence should not be believed and somehow corroborates the Crown's case is ludicrous," she said. "It is an example of taking one part of the evidence out of context and trying to attach another meaning to it that is logistically unsupported."

Court heard evidence surfaced a year after the child's death that other children may have accidentally injured him during "roughhousing."

A babysitter testified she was bathing the child three days before he died when he slipped in the bathtub and hit his head. The woman said she did not tell the child's parents because he didn't cry and appeared uninjured.

The case will return to court April 10 when the Crown will argue why it should not be ordered to pay Blacksmith's court costs.

dean.pritchard@sunmedia.ca

Twitter: @deanatwpgsun