Warning: This story contains disturbing details
The 23-year-old man accused of causing the death of a two-year-old by putting a Ping-Pong ball in the child's mouth has been remanded to a psychiatric hospital for a 30-day assessment.
Madison Bennett, also known as Karrson Bennett, appeared in provincial court on Monday afternoon via a video link from jail.
His lawyer, David Lutz, requested a fitness hearing as well as a 30-day psychiatric assessment.
Judge Andrew LeMesurier said the usual practice is to have a five-day in-jail assessment of fitness and then proceed to the 30-day assessment at the Restigouche Hospital Centre, but given the seriousness of the charges against Bennett, he said the longer process was in order.
Bennett is charged with criminal negligence causing death and breach of probation. The identity of the child is protected by a publication ban.
Lutz confirmed for the judge that Bennett identifies as male, but that he "has not quite transitioned." He said so far, it is only "above the neck."
LeMesurier responded, "It's how you identify, not how you appear."
Saint John police responded to a 911 call on Sept. 18 about an unconscious child at a Saint John residence. The child was eventually airlifted to a children's hospital in Halifax, but died on Sept. 19.
It's not the first time Bennett has been charged with hurting a child.
In 2017, he was charged with attempted murder and aggravated assault of another toddler.
He eventually pleaded guilty to aggravated assault and was sentenced in January 2019 to three years in prison, to be followed by 36 months of supervised probation. With credit for time served, he was sentenced to 18 months.
He admitted to physically abusing the girl on at least five separate occasions.
At the time, the court heard that Bennett suffocated the girl with water, hit her, and held his hand over her face until she turned purple and had to be revived.
On another occasion, he stuffed her into a tiny duffel bag, zipped it up to her neck and threw her in a closet.
Then he went out for a cigarette.
Probation order allows contact with children
Under the conditions of his supervised probation, Bennett was ordered to have no contact with the victim's family, abstain from drugs, participate in treatment and counselling, submit a DNA sample, and not own weapons for 10 years.
There was no mention of having no contact with children.
But there's nothing in the Criminal Code that would automatically impose that condition, says Archie Kaiser, a law professor at the Schulich School of Law at Dalhousie University.
"It cannot be assumed that the court would impose this condition," said Kaiser.
"Given the wisdom of hindsight and the nature of the allegations, it's a fair question," he said.
Kaiser said the court could have imposed two types of conditions, as long as they were "not overbroad" or didn't interfere with the offender's Charter rights.
The court could have prohibited him from being in contact with children, or it could have required him to tell his probation officer "the name, address, age, parental status of any person with whom the offender has an intimate relationship, although again care must be taken to ensure that such conditions are not overbroad."
Kaiser said the case could provide a lesson to judges and Crown prosecutors in future.
"It is a call to be vigilant to think about the possibility of imposing such conditions of no contact with children and reporting intimate relationships in parallel cases in the future," he said.