The gaunt, slight-framed boy is all buttoned down in his going-to-court blazer and navy trousers. Sitting alongside his lawyer, he swivels absentmindedly in his chair, the picture of youthful innocence.

Mitchell Wilson, who had muscular dystrophy, committed suicide last year at age 11. His parents say he was never the same after he was mugged in November 2010 by an older student at his Pickering school, and had been bullied by other students at the school. ( FAMILY PHOTO )

Thirteen years old but looking much younger. In court Monday morning, his side — the defence — lost the legal battle. If I may say so — and I can, because this is a judge-alone trial, which permits more latitude in characterizing evidence before a verdict is rendered — it’s difficult to see them losing the war. Oral and written statements made by the 11-year-old who’d fingered this accused as one of his two attackers in a sidewalk mugging were ruled admissible at trial. Justice Mary Teresa Devlin concluded those utterances rose to the level of “reliability,’’ thus invoking an exception to the use of hearsay evidence in court.

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Hearsay is pretty much all the Crown had left in prosecuting charges of robbery and assault causing bodily harm. Mitchell Wilson was the victim. But the lad, despondent over his physical deterioration from muscular dystrophy and tormented by bullies, committed suicide last September. He tied a plastic bag around his head. His father, Craig Wilson, made the ghastly discovery upon entering Mitchell’s room to rouse him for school on what would have been his first day in Grade 6. The previous day, Mitchell had received a subpoena commanding him to appear as a witness in court against the youth whose buddies had hounded Mitchell at school for the entire previous year, taunting and jeering him for pursuing the matter. It is unknown how much that hectoring, the bullying, contributed to Mitchell’s depression and the terrible decision he made to take his own life. This was a resilient kid who’d watched his mother succumb to cancer only three years earlier, then was diagnosed with the muscle-atrophying condition a year after that. Yet he’d maintained his emotional equilibrium, his cheerful disposition, through all the hardships, until the afternoon a couple of punks jumped him from behind, smashed his face into the pavement, two front teeth chipped, and robbed him of the iPhone he’d borrowed from his father. That assault made him feel weak and vulnerable. This is Craig Wilson describing his son Monday: “He was just like every other kid, you know? He just wanted to have fun and be liked by his siblings. Just live life and smile and have fun and be a jokester, do all the stupid crap that kids do. He wanted to be a normal kid like everybody else and he couldn’t be. But damn, he tried.’’

With Mitchell’s suicide, the case against the defendant, his identity protected by the Youth Criminal Justice Act, nearly collapsed. The victim was no longer alive to take the stand so that his allegations could be tested, his account of events probed, and, most crucially, his ID of the one individual arrested challenged under cross-examination. There was only his word: “Utterances’’ made to his stepmother, to police, to school officials, and the statement he’d signed, with no supporting audiotape or videotape secured by investigators. Devlin agreed to hear arguments on the admissibility of that evidence in a voir dire — a trial within a trial — with five witnesses summoned. Hearsay evidence, she wrote, is “presumptively inadmissible’’ because it deprives the court from hearing testimony from a sworn witness, from observing the demeanour of that witness, and having the evidence tested through cross-examination.

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But there were extraordinary circumstances here and the law allows for exceptions at a judge’s discretion. The criterion, as established by the Supreme Court: “That sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about, or by showing that in the circumstances, the ultimate trier of fact will be in a position to sufficiently assess their worth.’’ Mitchell had described the assault to an officer on the day it happened, Nov. 1, 2010. That officer told court last week Mitchell, though shaken and upset, seemed “very bright and very articulate for a 10-year-old boy.’’ Const. Colin Campbell, from Durham Region’s street-level robbery unit, followed up with Mitchell two days later, walking with him over the route he’d taken on the afternoon he was set upon. Mitchell, who used a walker at school, stubbornly continued taking lengthy strolls every day around his Pickering neighbourhood, to maintain his mobility skills. It was during this walk that he’d stopped to call home on his iPhone, inquiring what stepmom Tiffany Usher was making for dinner, just as he was passing by a group of youths standing outside a townhouse complex. Two of those boys, he believed, had then followed him, attacking from behind so that he never saw it coming, then rummaging through his pockets as he lay bleeding and stealing the phone. Usher, who happened to be driving past, saw the two youths attacking a child but didn’t realize until turning around to take a closer look that the victim was Mitchell. She pursued the two assailants — one of them tossed the phone back at her — but they both got away. On Nov. 3, Usher returned Mitchell to school following the police walk-through. They were entering the principal’s office just as another boy was exiting. Mitchell said to his stepmother: “Mom, he’s one of them.’’ Presented with class photos, Mitchell picked out the boy from pictures taken in two different years. “For sure the one,’’ he told Usher. When Campbell arrived at the school an hour later, Mitchell confirmed he was “100 per cent’’ certain of the identification. Campbell wrote a “verbatim’’ statement that Mitchell signed. All of that evidence was accepted on Monday by Devlin. Mitchell was given his voice in court. No further evidence was called by either the Crown or the defence and Devlin has reserved her verdict to March 5. “That was the biggest thing,’’ Craig Wilson said afterwards. “To know that the words he put to paper are going to be read in court as evidence. When he’s not there, they’ll stand.’’ It must be stressed, however, that the threshold of believability — proof beyond reasonable doubt — is higher at trial than in a voir dire hearing assessing reliability for admissibility of evidence. Devlin can say yes to the former, as she did, and no to the latter, when rendering a verdict. Proof beyond a reasonable doubt is at the heart of any trial. And there is significant room for doubt here. In his initial conversation with the first responding officer, Const. Susan Dubois, Mitchell could provide only a general description of his attackers: One taller and heavier, the other (the defendant) smaller and lighter, both black. He did not recognize them. Indeed, because both boys had worn their collars and hoodies up, he’s seen only a small portion of their faces. Further, his father told reporters Monday that Mitchell had no history with the accused; that boy had not bullied his son. There seems no argument Mitchell correctly identified the boy in those classroom photos as the youth who’d brushed past him in the school office. But had he been one of his assailants? It is not a small technicality. Another boy’s fate hangs in the balance. The irrefutable evidence doesn’t appear to be there. Mitchell did not die in vain. His tragedy and this trial have helped illuminate the plague of school bullying. “It seems like after this story broke, this was an underlying problem all over the province, all over Canada,’’ says Craig Wilson. “So, if this story brought more of it to light, that it’s going to make that kind of thing stop, yeah, it’s a good thing, for sure.’’ Whatever the outcome, that will be the legacy of sweet Mitchell Wilson.