Supreme Court appeal in child's meningitis death could be dismissed from bench

Lawyers say just because parents convicted in the meningitis death of their toddler are taking their case to the Supreme Court that doesn't mean they will get the privilege of a long deliberation.

Lisa Silver, law professor at the University of Calgary, said the couple can automatically appeal to Canada's top court because the three-member Alberta Court of Appeal wasn't unanimous in a recent decision upholding the conviction.

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David Stephan and his wife, Collet, were found guilty last year of failing to provide the necessaries of life in their son Ezekiel's 2012 death.

The trial in Lethbridge, Alta., heard the Stephans treated the 19-month-old boy with garlic, onion and horseradish rather than taking him to a doctor. They eventually called 911 but the little boy died in hospital.

No promise of long hearing

An appeal for failing to provide the necessaries is serious enough to warrant the attention of Canada's top judges, Silver said.

"Remember this is a death of a child."

But just because someone is granted a hearing before the Supreme Court, doesn't mean the issue will be given a full airing, she said.

"They can dismiss it from the bench," she said. "You've got a right to do it because there's a dissent ... You argue it and then the court says, 'Thank you very much' and they go in the back and they come back out and they go, 'Goodbye."'

David Stephan has indicated he and his wife will ask the Supreme Court to overturn their convictions.

"We are attempting to remove a very concerning precedent that has been further substantiated by two out of the three Appeal Court judges." Stephan wrote on his Facebook page recently.

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David Stephan was sentenced to four months in jail and his wife was ordered to spend three months under house arrest. The Crown plans to appeal the sentences as being too lenient.

Silver believes the upcoming appeal of the sentence may be a factor in trying to have the conviction overturned.

"I feel like they're appealing because they're sort of putting off that sentence appeal which I feel may be an issue," she said. "I feel that the sentence was light."

'Martyr'

Longtime Calgary defence lawyer Balfour Der says the Stephan case has similarities to a criminal negligence case that went before the Supreme Court in 1989. The case called Tutton and Tutton involved a wife who said she had a vision that told her to remove her diabetic child from insulin.

"It could have been precedent-setting except one of the judges of the seven who heard it became ill and retired and the court split 3-3," said Der. "It was quite a debate as to whether it's ... looking at it through her eyes or an objective test looking at it through an impartial adviser."

Tim Caulfield, research director at the University of Alberta's Health Law and Science Policy Group, said David Stephan is using the Supreme Court appeal as a continued platform for his beliefs.

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"This has clearly become a crusade for the Stephans. His recent online rants have raised the idea that evidence was falsified, that there was an elaborate coverup, and that the judicial system was under political pressure to convict," Caulfield said.

"The existence of a dissent, which was specifically about the nature of the jury charge, does not, in anyway, confirm the conspiratorial thinking of Stephan.

"Regardless, that is how it will likely play with the supporters of the Stephans. And all of this will help position Stephan as a martyr."

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