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LETHBRIDGE, Alta. — A couple who treated their toddler son with natural remedies before he died of meningitis can appeal their convictions to the Supreme Court after a split decision from Alberta’s Court of Appeal.

David and Collet Stephan were found guilty last year of failing to provide the necessaries of life in the 2012 death of 19-month-old Ezekiel. Their trial in Lethbridge, Alta., heard they treated the boy with garlic, onion and horseradish rather than taking him to a doctor.

There was testimony from a nurse, who was also a friend, who said she had suggested to the Stephans that Ezekiel could have meningitis.

The couple’s lawyer argued before the Appeal Court that the trial judge allowed the jury to be overwhelmed by medical evidence and it took almost 39 months from when the Stephans were charged to when they were sentenced.

Two of the three Appeal Court judges ruled in support of the conviction.

Writing for the majority, Justice Bruce McDonald said the delay in the case was not unreasonable and the judge was not wrong in admitting expert witness evidence. Collet Stephan’s testimony showed she did tests for meningitis and ignored the positive results, McDonald wrote.

“This evidence supports the conclusion that they actively failed to do what a reasonably prudent and ordinary parent would do,” he said.

But Justice Brian O’Ferrall wrote in a dissenting opinion in favour of a new trial. 

He felt the trial judge’s charge to the jury was confusing and misleading. He said the jury wasn’t cautioned about doctors who were allowed to testify about what they would have done in the Stephans’ situation.

“The standard of care demanded of a medical professional is not the same as that required of parents lacking medical training,” O’Ferrall wrote.

“The thrust of this dissent is that the trial judge’s instruction to the jury gave them little choice but to convict,” he continued.

“That is, if a parent does not take his or her sick child to the doctor and the child dies, the parent is guilty of failing to provide the necessaries of life. Even in strict liability regulatory offences, due diligence is a consideration.”

O’Ferrall’s dissenting opinion means the Stephans can automatically appeal their case to the Supreme Court of Canada if they choose. 

Defence lawyer Karen Molle, who represented David Stephan, had argued the trial judge allowed too many Crown experts to testify. She said the amount of evidence from three doctors unfairly distracted jurors from the real question of whether the Stephans acted differently than any other reasonable parent.

“We can’t undo the impression that these doctors left on this jury,” she argued at an Appeal Court hearing in March. “The jury is emotionally reacting to … a week-long barrage of inflammatory and emotional evidence.”

Crown prosecutor Julie Morgan had told the hearing the Stephans received a fair trial and the jury heard evidence from both sides.

“The jury found a reasonable, prudent person in their situation would have foreseen medical attention was required,” Morgan said.

The trial heard the little boy’s body was so stiff he couldn’t sit in his car seat, so the toddler had to lie on a mattress when his mother drove him from their rural home to a naturopathic clinic in Lethbridge, where she bought an echinacea mixture.

The Stephans never called for medical assistance until Ezekiel stopped breathing. He was rushed to a local hospital and died after being transported to Calgary Children’s Hospital.

David Stephan was sentenced to four months in jail and his wife was ordered to spend three months under house arrest — the only exceptions being trips to church and to medical appointments.

The two were released early pending the outcome of the appeal.

The Crown has indicated it will appeal the sentences as being too lenient.

— Follow @BillGraveland on Twitter

Bill Graveland, The Canadian Press