David and Collet Stephan (Lethbridge News Now)

By Lara Fominoff

Application dismissed

Judge rules against defense application to dismiss case against David and Collet Stephan

Jun 20, 2019 | 4:52 PM

LETHBRIDGE, AB – Justice Terry Clackson has dismissed a defense application to have the case against David and Collet Stephan dismissed.

Defense lawyer Jason Demers argued in Court of Queen’s Bench Thursday, June 20 that the Crown did not prove two of eight elements in the case beyond a reasonable doubt.

On Tuesday, June 18, Demers outlined the elements to the court, which included that the Crown must prove beyond a reasonable doubt, that 19-month-old Ezekiel Stephan would have survived had he received medical attention in the 48 hours prior to 10 p.m. March 13.

That is the night that David called 9-1-1 twice, telling the operator his son had stopped breathing. It was during the second phone call, that a 9-1-1 operator testified he coached Collet how to give CPR to the child prior to meeting an ambulance that would take him to the Cardston Hospital.

The Crown contended that it only had to prove that there was a risk of actual injury or damage to the child. Justice Clackson ruled in favour of the defense.

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Citing case law from 1998, Demers argued Thursday afternoon that the Crown must produce some evidence on every element for which the Crown has evidentiary burden. He told the court the defense conceded that there was at least some evidence on every element, except for two.

Those elements were: a) that had the Stephans obtained a doctor’s assistance in the 48 hour period before 10 p.m. March 13, 2012, Ezekiel’s life would have been saved, b) and that the failure to obtain a doctor’s assistance in the 48 hour period created a risk to Ezekiel’s life.

Demers told the court that in order for the Crown to be able to do that, the evidence should come from an expert, which had not happened.

Crown Co-Prosecutor Britta Kristensen argued however, there may be an error in law by trying to prove beyond a reasonable doubt that Ezekiel would have survived had he received medical attention earlier. Kristensen further argued that medical examiner Dr. Bamidele Adeagbo’s testimony had not yet been admitted as evidence, and he was scheduled to testify in July.

“There is no evidence on how the disease was operating in Ezekiels’ body,” said Kristensen. “Only inference.”

Justice Clackson said he found some evidence on the record by Dr. Adeagbo to satisfy one of the contentious elements. On the second, while there was no direct evident on whether Ezekiel would have survived had he received medical attention sooner, it was not his role to take from a hypothetical properly instructed “jury” the obligation to determine what facts have been established on the evidence, and what inferences come from those facts.

“In my view there is at least some evidence on the essential element that we have been calling number 6,” said Clackson. “Therefore, the application to dismiss the indictment is dismissed.”

The trial has adjourned for the week, and will once again resume on Monday, June 24 when the defense is expected to give its opening statements and call its first witnesses.