The jury was promised the trial would be over long before Christmas.

But, as Amanda Dumont and Scott Bakker’s Superior Court trial in the death of a scalded toddler limped into its fourth week, it became apparent that justice would have to wait for another day.

With what one legal expert called a “very, very rare” move, the trial ended in a mistrial and will have to start all over again in the coming months.

When the trial started Nov. 21, the 12 jurors began their exposure to a daily dose of the horror surrounding the death of Dumont’s son, 20-month-old Ryker Daponte-Michaud, who was scalded with hot coffee at least three days before he died May 21, 2014.

He was never taken for any medical treatment and died of dehydration and ketoacidosis. Jurors were routinely shown photos of Ryker’s horrifying injuries — mostly third-degree burns — that stretched from his waist, over his genitals, buttocks, back and upper legs while hearing about what happened on Strathroy’s Penny Lane the week of his demise.

But in the last 10 days, the jury heard only one full day of evidence. Legal arguments cancelled one day. Then Dumont fell ill with appendicitis the day before her oldest daughter was to testify.

As the jury walked into the courtroom Monday, a sickly Dumont, 30, just four days after her appendix surgery and her face the colour of wet cement, sat forlornly in her prisoner’s box. Bakker, 27, maintained his usual blank look from his seat in an adjacent box.

“Ms. Dumont is here but ought not to be,” a grim Justice Johanne Morissette began.

Ryker’s mother was taking narcotics for her recovery, the judge explained, and couldn’t participate fully in the proceedings, which is “a fundamental right.”

There’s no telling when Dumont will be well enough to continue. It’s Christmas, the judge said, and she knew one juror had a trip booked and one of the defence lawyers had another major trial in January.

“I’ve had to declare a mistrial,” Morissette said.

She promised jurors a letter “should you require any psychological counselling” from being exposed to the case.

Morissette thanked them and said, “This was not an easy trial to sit through and unfortunately you’re not going to see it to the end.”

It couldn’t have been an easy decision for the judge, said Brian Farmer, a former Crown attorney and criminal law professor, who added it’s usually inadmissible evidence or inflammatory statements that can send a trial off the rails.

The main concern, putting all the emotion aside, is to make sure that an accused person can “make full answer in defence” and “make absolutely sure there is no miscarriage of justice,” Farmer said.

In this case, there was a danger attached to sending the jury home for an indefinite period and allowing the evidence to become a distance memory in their minds.

Add in that pathologist Michael Shkrum was only halfway through his testimony and that the jury knew the daughter was about to appear, it sounded like “an impossible situation” and “a constellation of factors I’ve never heard of before,” Farmer said.

He said he was concerned for the 12 jurors who won’t be given a chance to make a decision.

“They’ve heard critical evidence and now it’s gone. I can’t imagine how I would feel.

“We forget with this judicial business that it’s human. It’s all fact-driven with humans involved and you just can’t take a scalpel and cut out that aspect of it. It’s a tragedy.”

Farmer also didn’t exclude “the very real possibility” of a change-of-venue application because the case has attracted so much interest, or at least a challenge-for-cause jury selection that would ask potential jurors if they knew of the case and if they had any bias.

Outside of court, the two defence lawyers weighed in on the mistrial decision.

Dumont’s lawyer, Ken Marley, said his client was “not well” after her surgery that could not be done laparoscopically — more commonly called key-hole surgery.

“Ordinarily you wouldn’t expect to see a person at work or anywhere for a week or more, sometimes three or four weeks after surgery like that. So, it’s not surprising she doesn’t look well,” he said.

The judge, Marley said, “really had no other option.”

He said it would have been a difficult decision given that the trial was entering its fourth week and the evidence has been troubling. “It appears from her reasons that it affected her greatly,” Marley said. “And yet it’s only one of the things she can consider.”

“As a matter of law, she has to consider the fairness of the trial to the accused persons, she has to consider the fairness to the other participants in the trial, including the jurors who were told that this case wouldn’t go past Christmas.”

Bakker’s lawyer, Greg Leslie, said his client had hoped the trial could have stayed on track but given the possible delay into January, “the judge, I think, had to do what she did.”

“Our memories fail and when you’re dealing with somebody’s liberty where you have to decide whether or not a person is innocent or guilty, I don’t think you can have a delay of five weeks and then come back,” he said.

Bakker, he said, wanted to push on, but understood Dumont was ill.

“He was caught in a catch-22, but definitely he wanted to proceed,” Leslie said. “I mean, we’re now looking at probably four to five months before we set a new trial date and that’s the last thing he wanted.”

That new trial date could be set as early as Tuesday at the monthly Superior Court assignment court.

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Reporter Jane Sims is in court and will be tweeting live. Follow along here:

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