NEw trial For pair Con­viCtED in toDDlEr son’s DEath

No proper in­struc­tion for jurors: top court

Ottawa Citizen - - FRONT PAGE -

OT­TAWA • The Supreme Court of Canada has ordered a new trial for a cou­ple who used home­made reme­dies in­stead of seek­ing med­i­cal at­ten­tion for their son who died of bac­te­rial menin­gi­tis.

David Stephan and his wife, Col­let, were found guilty in 2016 of fail­ing to pro­vide the nec­es­saries of life to 19-month-old Ezekiel in 2012.

Their trial in Leth­bridge, Alta., heard that they treated the boy with gar­lic, onion and horse­rad­ish rather than take him to a doc­tor. The Stephans even­tu­ally called 911 but the lit­tle boy died in hospi­tal.

“We’re grate­ful be­cause this is a move in the right di­rec­tion and we now have the op­por­tu­nity to bring the whole truth for­ward,” David Stephan said out­side the Supreme Court on Tues­day. “We’re just so ex­cited to have the abil­ity to do that and to be able to up­hold parental rights here in Canada.”

The Supreme Court heard ar­gu­ments from the cou­ple’s lawyer and the Crown be­fore mak­ing the un­usual move of rul­ing im­me­di­ately from the bench.

Jus­tice Michael Mol­daver, speak­ing for the high court, said the trial judge did not prop­erly in­struct jurors on what would be a marked de­par­ture from rea­son­able be­hav­iour “in a way that the jury could un­der­stand.”

“Ac­cord­ingly we would al­low the ap­peal, quash the con­vic­tions and or­der a new trial.”

Karen Molle, lawyer for the Stephans, had ar­gued the trial judge didn’t in­struct the jury prop­erly to de­ter­mine whether the Stephans acted dif­fer­ently than other rea­son­able par­ents.

“This jury charge gave this jury lit­tle choice but to con­vict,” Molle said.

Julie Mor­gan, rep­re­sent­ing the Crown, said the trial judge’s lan­guage was gen­er­al­ized but it was enough for the jury to un­der­stand the case.

“The jury would have un­der­stood what their job was,” she told the court. “They found that the ap­pel­lants did not meet the com­mu­nity stan­dard, when they failed to take their child to a doc­tor when he had menin­gi­tis, and that en­dan­gered his life.”

David Stephan was sen­tenced to four months in jail and his wife was ordered to spend three months un­der house ar­rest.

The Al­berta Court of Ap­peal up­held the con­vic­tion last Novem­ber, but be­cause the rul­ing wasn’t unan­i­mous, the cou­ple had an au­to­matic right to take their case to the Supreme Court.

A spokes­woman for Al­berta Jus­tice said the file will re­turn to Leth­bridge Court of Queen’s Bench to set a new trial date.

“The Crown has an obligation to con­tin­u­ally as­sess the ev­i­dence/file against the pros­e­cu­tion stan­dards of a ‘rea­son­able like­li­hood of con­vic­tion’ and if it is ‘in the pub­lic in­ter­est to pro­ceed’ with a case,” said spokes­woman Kather­ine Thomp­son.

Al­though David Stephan said the prospect of a new trial is “deeply un­com­fort­able for us,” he re­joiced in the Supreme Court’s de­ci­sion.

“Praise be to the Lord God Almighty!!” Stephan wrote on Face­book.

“Jus­tice over the er­rors of our con­vic­tion has fi­nally been served, our con­vic­tions have been over­turned and we now have the op­por­tu­nity to go back to trial. We take com­fort in know­ing that aside from the med­i­cal ev­i­dence that is still with­held or de­stroyed, the whole truth will be es­tab­lished and the tre­men­dous lies sur­round­ing the pass­ing of our son will be ex­posed.”

Stephan posted on Face­book last week that the Supreme Court hear­ing was im­por­tant for par­ents in all of Canada.

“Our Supreme Court hear­ing ... will not only af­fect the fu­ture of our fam­ily, but the fu­ture of all Cana­di­ans as this land­mark, prece­dentset­ting case is be­ing used to de­prive parental rights and health free­doms in Canada,” he wrote.

His post also made ref­er­ence to the “real crim­i­nals,” but he wouldn’t elab­o­rate on what he meant Tues­day.

“We’ll have to wait and find out won’t we?” he said.

Wit­nesses at the trial said the toddler’s body was so stiff he couldn’t sit in his car seat on the way to a natur­o­pathic clinic in Leth­bridge, where his mother bought an echi­nacea mix­ture.

The trial also heard that Ezekiel’s par­ents be­lieved he had croup. The Stephans never called for med­i­cal as­sis­tance un­til Ezekiel stopped breath­ing. He was taken to a lo­cal hospi­tal and died after be­ing trans­ported to Cal­gary’s Chil­dren’s Hospi­tal.

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