David and Collet Stephan are charged with failing to provide the necessaries of life to 19-month-old Ezekiel who died in March 2012. (File photo by THE CANADIAN PRESS)

Expert says acquittal of Alberta parents in boy’s death unlikely to set precedent

The Stephans testified they thought their son had croup and used herbal remedies to treat him

A law professor says the acquittal of an Alberta couple in the death of their son isn’t likely to set a legal precedent but should open a conversation about parental responsibilities.

A judge in Lethbridge, Alta., found David and Collet Stephan not guilty Thursday of failing to provide the necessaries of life in the 2012 death of 19-month-old Ezekiel.

It was the second trial for the pair. A jury convicted them in 2016 but the Supreme Court of Canada overturned the ruling and ordered a new trial.

The Stephans testified they thought their son had croup and used herbal remedies to treat him. They believed he was recovering and called for an ambulance when he stopped breathing.

Queen’s Bench Justice Terry Clackson rejected the findings of a medical examiner who said the boy died of bacterial meningitis, siding with a defence expert who said the death was caused by a lack of oxygen. He also ruled the Stephans had done everything possible to get help for their son.

David Stephan, whose father co-founded a nutritional supplement company, told reporters after the verdict that the case sets a precedent by supporting parental rights and the choice for homeopathy or naturopathy. Naturopathy is the treatment of disease without drugs.

Lisa Silver, a University of Calgary law professor, said the decision doesn’t set a template for future cases.

“With parental responsibilities and duties we may know where they lie on the outside edges, but we are fuzzy on what that means in between,” she said.

“What duties and responsibilities do we have as a parent? … I think this case opens up that discussion for sure.

“But is this case showing that (David Stephan) is absolutely right in how he thinks about herbal remedies? No.”

Silver said the general public may be unhappy with the ruling but the Crown had to prove its case.

“It’s not ‘look what happened. A child died.’ The parents do things that we don’t do, which is herbal medicine. Those two things don’t make out guilt.”

Tim Caulfield, research director of the University of Alberta’s Health Law and Science Policy Group, has been a vocal critic of alternative remedies used to treat patients who should be getting medical help. He said he’s frustrated with the verdict.

“Irrational and irresponsible behaviour put a child at risk. But this court decision is not an endorsement for pseudo-scientific beliefs or conspiracy theories. (David Stephan) is still wrong — horribly wrong — about all of that,” said Caulfield.

“It was a criminal trial, so the standard is high. I don’t think this case lowers the bar. Parents can still be found criminally responsible for failing to provide the necessaries of life.”

Juliet Guichon, a bioethicist at the University of Calgary, said the verdict should be appealed. The judge was wrong when he found that the Stephans did everything they could help their son, she said.

The trial heard that Ezekiel didn’t have routine visits with a pediatrician or family doctor, and he didn’t get standard vaccinations.

The judge also heard that David Stephan first called 911 when Ezekiel stopped breathing but declined an offer of ambulance when the child started breathing again. The father called 911 a second time, a half hour later, telling a dispatcher the boy had stopped breathing again and asked for an ambulance.

“How does a judge make such a statement? They did not do everything they could,” said Guichon. ”Who calls off an ambulance when a child is not breathing? So on that basis alone, the Crown has to appeal because it’s contrary to the findings of fact.

“I think there are also problems with this judgment related to rejecting the medical examiner’s testimony. He, who did the autopsy, who was qualified to do the autopsy, was overridden.”

The Crown has said it is reviewing the judge’s ruling before it decides whether to appeal.

Bill Graveland, The Canadian Press

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