A panel of Alberta judges has dismissed the appeal of a couple found guilty of failing to provide the necessaries of life to their 19-month-old son, who died of meningitis in 2012.
David and Collet Stephan — who now live in B.C. — were convicted by a Lethbridge, Alta., jury in April 2016 in relation to the 2012 death of their son, Ezekiel.
The high court's decision to uphold their convictions was released Wednesday after appeal arguments were made in March. Justices Jack Watson and Bruce McDonald wrote the majority decision while Justice Brian O'Ferrall dissented.
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Because O'Ferrall found the Stephans should have been granted a new trial, the couple has automatic leave to have the Supreme Court of Canada hear arguments, if they choose to take their case to that level.
During the trial, jurors heard the Stephans used natural remedies and homemade smoothies containing hot pepper, ginger root, horseradish and onion on Ezekiel rather than seek medical care.
At one point, the boy became too stiff to sit in his car seat and had to lie on a mattress when Collet Stephan drove him from their rural home to a naturopathic clinic in Lethbridge to pick up herbal supplements.
The Stephans never called for medical assistance until Ezekiel stopped breathing. He was rushed to a local hospital but died after being transported to Calgary.
Defence says trial judges allowed too many Crown experts
The trial became "a battle of experts," according to the Stephans' lawyers, Karen Molle and Heather Ferg.
Molle argued jurors were subjected to a "week-long barrage of inflammatory, emotional evidence" from the Crown's experts.
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The lawyers told the panel of judges their clients' convictions should be overturned because the trial judge erred in allowing too many Crown experts to testify and that medical jargon confused jurors. They also argued the defence expert's testimony was restricted.
The appeal court judges ultimately found the trial judge "exercised his discretion as gatekeeper" and said the expert evidence was not repetitive.
"We should not assume that jurors are empty vessels or lack sophistication or discernment," wrote the judges in regards to the appellants' criticism of the use of medical jargon.
"The appellants have not shown the trial judge erred in his decision to admit expert evidence," reads the decision.
The test for a finding of guilt is based on what a "reasonably prudent" parent would do to care for their child.
Delay application also dismissed
Molle and Ferg also said their clients' Charter rights were violated because of unreasonable delay from the time the couple was charged until the date they were convicted.
That aspect of the appeal was also dismissed in Wednesday's decision, with the higher court finding the delay was not unreasonable.
Ferg referenced the 2016 Jordan decision, in which the Supreme Court of Canada set strict deadlines for trials, saying delays beyond 30 months for Superior Court cases and 18 months at provincial courts violate the accused's Charter right to be tried within a reasonable time.
The new time limit for superior court cases is 30 months.
The Crown calculated a 29 months from charge to conviction when defence delay was subtracted, while Molle and Ferg calculated 48.5 months.
Crown also appealed, seeking stiffer sentences
David was given four months in jail while Collet was given three months of house arrest. Both parents were also ordered to complete 240 hours of community service.
As part of their sentence, Court of Queen's Bench Justice Rodney Jerke also ordered that the Stephans' three other children see a medical doctor at least once a year.
The Crown has filed its own appeal and at a later date, will argue the couple should face stiffer sentences before another panel of Court of Appeal judges.
The Stephans now live in Nelson, B.C., with their three sons.
'Necessaries' vs. 'necessities'
Although unusual in everyday parlance, the word "necessaries" — not "necessities" — is the term the legal system uses and is, in fact, an actual noun.
This is the precise wording of section 215 (1) of the Criminal Code of Canada:
"Every one is under a legal duty:
(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
(b) to provide necessaries of life to their spouse or common-law partner; and
(c) to provide necessaries of life to a person under his charge if that person
- is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
- is unable to provide himself with necessaries of life.
An earlier version of this story said the Stephans treated their son with "naturopathic" remedies such as hot peppers, garlic, onions and horseradish. In fact, they treated him with "natural remedies" and homemade smoothies containing hot pepper, ginger root, horseradish and onion.Nov 16, 2017 3:02 PM MT