Parents' convictions in son's meningitis death upheld by Alberta Appeal Court

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 ofmeningitis 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 wrotethe majority decision while Justice Brian O'Ferrall dissented.

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Because O'Ferrallfoundthe Stephans should have been granted a new trial, the couple has automatic leave to have the Supreme Court of Canadahear 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 Ezekielrather than seekmedical 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 Lethbridgeto 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 toCalgary.

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 thepanel 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 foundthe trial judge "exercised hisdiscretionas gatekeeper" and said theexpert evidence was notrepetitive.

"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 doto care for their child.

Delay application also dismissed

MolleandFergalso 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 thedelay was not unreasonable.

Ferg referenced the 2016Jordan 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 limitfor superior court cases is 30 months.

The Crown calculated a 29 months from charge to conviction when defence delay was subtracted, while Molle and Fergcalculated 48.5 months.

Crown also appealed, seeking stiffer sentences

David was given four months in jail whileColletwas 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 appealand at a later date, will argue the coupleshould face stiffer sentences before anotherpanel of Court of Appeal judges.

TheStephansnow liveinNelson, B.C., with their threesons.

'Necessaries' vs. 'necessities'

Although unusual in everyday parlance, the word "necessaries" not"necessities" is theterm the legal system uses and is, in fact, an actual noun.

• From April 2016: Recent Alberta cases of failing to provide the necessaries

This is the precise wording ofsection215(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.

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