Couple appeals verdict in death of toddler son
Lawyer says judge’s evidentiary rulings created ‘miscarriage of justice’ in case
The Alberta parents convicted of failing to provide proper care for their toddler, who died of meningitis, were victims of a miscarriage of justice, their lawyer said Thursday.
Defence counsel Karen Molle told a three-member Alberta Court of Appeal panel that David and Collet Stephan didn’t receive a fair trial.
“Their defence was undermined by certain evidentiary rulings,” Molle said, in seeking a new trial for the Stephans.
“This has resulted in a miscarriage of justice.”
The Stephans were convicted last April of failing to provide the necessaries of life for their 19-month-old son, Ezekiel. The toddler was treated with hot peppers, garlic, onions and horseradish for several weeks and died in a Calgary hospital on March 13, 2012.
David Stephan was sentenced to four months in jail, while his wife was handed three months house arrest.
Those sentences are currently being appealed by the Crown and the couple are free on bail pending the outcome of that as yet unscheduled hearing.
Molle said Justice Rodney Jerke, who presided over the couple’s seven-week jury trial, did not ensure they had a fair hearing.
“The trial judge did not adequately exercise his gatekeeper function,” she said.
The lawyer said the Crown should not have been permitted to call a series of doctors who treated the boy at Alberta Children’s Hospital to give opinion evidence.
One doctor expressed that she would have run, not walked, to a hospital if her child was in Ezekiel’s condition.
“This case became a battle of experts,” Molle said.
She said the doctors’ testimony amounted to a “weeklong barrage of inflammatory emotional evidence,” for jurors to hear.
Molle said Jerke erred in restricting the opinion of pathologist Dr. Anny Sauvageau.
Jerke declined to permit her to be declared an expert in the area of diagnosis and prognosis of chronic illnesses.
In her report, redacted for jurors, Sauvageau opined the boy may have had croup, a chronic illness which would have caused breathing problems, but was treatable.
“It was an error to find that Dr. Sauvageau was not qualified to give and opinion of diagnosis and prognosis of chronic illnesses,” the lawyer said.
“Her report was redacted as a result.”
The lawyer also added jurors should have been able to hear the opinion of the boy’s grandfather, who saw him the night before he died.
“The opinion of Anthony Stephan … was extremely important,” she said.
But Crown prosecutor Julie Morgan said jurors heard what the grandfather had to say about his belief the boy was fine.
Morgan said the jury’s verdict was a reasonable one based on the evidence.
“They failed to provide him necessaries of life,” Morgan said of the Stephans.
“Sadly their choices did not give medical personnel enough time to save Ezekiel’s life.”
She noted an emergency nurse who spoke to Collet Stephan the day before Ezekiel died suggested the boy may have meningitis and advised her to take the boy to see a doctor.
The appeal judges reserved their decision.
They failed to provide him necessaries of life. Sadly, their choices did not give medical personnel enough time to save Ezekiel’s life.