David and Collet Stephan leave for a break during their appeals trial in Calgary on March 9, 2017. THE CANADIAN PRESS/Todd Korol

No guarantee of third trial for parents in Alberta child’s death: law professor

No guarantee of third trial for parents in Alberta child’s death: law professor

CALGARY — A law professor says there is no guarantee the Crown will move ahead with a third trial for Alberta parents first convicted and then found not guilty in their ill son’s death.

Lisa Silver from the University of Calgary says a senior prosecutor will likely be asked to assess whether the case should go forward.

“You would get concerned as a Crown that if you don’t prosecute, then you’re not messaging something about parental responsibility. I could see the Crown believing there’s public interest in doing this,” Silver said.

“On the other hand, it’s been ongoing since 2012, so it’s nine years and that has to be considered by the Crown, too. It’s the third time. How many trials?”

The Alberta Court of Appeal on Monday overturned a judge’s acquittal in 2019 of David and Collet Stephan in the death of 19-month-old Ezekiel on a charge of failing to provide the necessaries of life.

They were accused of not seeking medical attention sooner for the toddler, who died in 2012.

A jury convicted the couple in 2016, but the Supreme Court of Canada overturned that verdict and ordered a second trial at which a judge acquitted them.

The Appeal Court ruled that critical comments made by Justice Terry Clackson about the speech and demeanour of the original medical examiner during his testimony showed a reasonable likelihood of bias. The court ordered a new trial.

Dr. Bamidele Adeagbo, who was born in Nigeria, did not respond to a request for comment.

The Alberta Crown Prosecution Service said the file will be assessed based on public interest and reasonable likelihood of conviction.

David Stephan said in a message to The Canadian Press that he and his wife have not yet decided if they’ll appeal the decision for a third trial to the Supreme Court of Canada.

He also posted an angry commentary on his Facebook page in which he noted it was nine years ago this month that Ezekiel died.

He said legal matters have left him and his wife so broke he had to represent himself at the second trial.

“Ultimately, at the base of this agenda, it’s not about me and my wife. It’s about you. It’s about each and every one of us,” Stephan said.

“Why? Because at the core … this is nothing more than a massive attack on parental rights and medical choice rights here in Canada.”

The Stephans testified at both trials that they thought Ezekiel had croup, an upper airway infection, and treated him with natural remedies, including a smoothie with tinctures of garlic, onion and horseradish.

They said he appeared to be recovering at times and they saw no reason to take him to hospital, despite his having a fever and lacking energy.

They called an ambulance when the boy stopped breathing.

Timothy Caulfield, a professor of health law at the University of Alberta, has been a critic of alternative medicine and hopes a third trial goes ahead.

“It’s about the expectation on parents to take care of their children and the role of alternative health practices in that space,” said Caulfield, who is also research director of the university’s Health Law Institute.

“It would be useful in having a precedent … (on) the use of alternative medicine and a parents responsibility to their children. Parents don’t have a right to neglect their children, and that’s what this case is really about.”

This report by The Canadian Press was first published March 9, 2021.

— Follow @BillGraveland on Twitter

Bill Graveland, The Canadian Press

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