David and Collet Stephan

By Lara Fominoff

Stephan re-trial hears defense submissions on case elements

Jun 18, 2019 | 3:32 PM

LETHBRIDGE, AB – The Crown must prove not only endangerment, but that 19-month old Ezekiel Stephan would have survived had his parents taken him in for medical attention earlier than they did, argued Defense lawyer Shawn Buckley on Wednesday, June 18.

Throughout the morning, Justice Terry Clackson heard submissions from Buckley on the elements of David and Collet Stephan’s case that the court should take under consideration.

The two are each charged with one count of failing to provide the necessaries of life, after their toddler son died from what a medical examiner earlier testified was bacterial meningitis, in March 2012. This is their second trial.

The proceedings were a marked difference from the Crown’s case and subsequent lengthy cross-examination that has dominated the proceedings over the last two weeks.

Buckley spoke to several elements including whether medical attention to Ezekiel was necessary and if he received it, would it have made a difference to the outcome.

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Second, where there is a death, and the child did not get the medical attention necessary, there must be proof that the medical attention was necessary because it would have made a difference in the outcome, saving the toddler’s life. If the medical attention received would not have saved the toddler’s life, then not receiving it would not have endangered him.

Arguing that the issue was not whether the child was suffering, in pain or that it may or may not have been a despicable circumstance- Buckley told the court it must find whether medical attention at a certain point in time would have made any difference.

He then asked the court, “was the failure of the Stephans simply not taking Ezekiel to the hospital soon enough? “Soon enough,” he told Justice Clackson, had to be established so that it also made a meaningful difference.

Clackson then asked Buckley “does it have to be soon enough to make a difference? Or potentially to make a difference?”

Buckley said the theory can not be that if the Stephans engaged earlier, the death would be the difference. The Crown also had to prove that any action the Stephan’s took earlier would have saved the toddler’s life.

“If seeking medical attention two days earlier would not have saved Ezekiel’s life, then it didn’t make a difference,” he said.

Justice Clackson acknowledged the difficulties of the case and that many elements were complicated.

“This is some weird hybrid between negligence and attention to the risk,” he told both Buckley and Co-Crown Prosecutor Britta Kristensen.

Kristensen however, argued that no one could say exactly what would have happened to Ezekiel if he had been brought in to see a doctor, or to the emergency department earlier.

She further told the court the Crown only had to prove “risk of endangerment” beyond a reasonable doubt to the toddler’s life, and not actual injury or damage; harm or death.

Calgary Pediatrician and Child Abuse consultant Jennifer D’Mello is expected to testify for the Crown Wednesday afternoon.