Judge rules on three Stephan applications, reserves decision on voluntariness until Thursday

The new trial will take place over four weeks in June.

On Wednesday, Mar. 6, Justice Rooke ruled that the Stephans’ “Fruit of the Poisonous Tree” application regarding what David Stephan referred to as a potentially “botched” police investigation – was dismissed. Rooke told the court the couple had failed to identify what exactly the fruits of the poisonous tree were and made mention of a similar application the couple brought before the courts Jan. 18, which was also dismissed.

Justice Rooke told the couple that if they believed the police investigation into their case was “botched” or “engineered,” they should bring that matter forward in a civil case; the case before the courts now was to deal with their charges of failing to provide the necessaries of life, and there had been to date, no finding of any bias in the investigation, or any improper investigation.

On the charges the Stephans are facing, the couple also brought forward a charter application to have the charges dismissed because they were “vague.” A Jordan application was also filed, alleging that the court process from the time they were charged, until now has taken an unreasonable length of time.

In both instances, Justice Rooke adjourned the matters Sine Die – meaning there is no assigned date for the matters to resume. Rooke told the court it would be prudent to wait for an Alberta Appeals Court ruling on Jordan, and that the application could be brought forward in the future.

Defense Arguments on Voluntariness

After Crown Prosecutor Britta Kristensen argued Tuesday, Mar. 5, why statements the Stephans made to police and to child abuse consultant Dr. Jennifer D’Mello should be allowed at the June trial, the Stephans argued Wednesday (Mar. 6) why they should not be allowed.

David Stephan outlined his defense according to four elements: what he believed were threats and promises made by police and other authorities, oppressive conditions, operating mentality and trickery.

Stephan referred to the presence of up to six uniformed and plain clothes officers in the hospital during the time Ezekiel was in the Intensive Care Unit, and how that was overwhelming for the couple to witness. He described feeling “trapped” and “detained” because his 19-month old son was not going to leave the hospital, police and social workers did not leave, and therefore the couple could not leave either.

He also told the court the couple had been sleep deprived, that he was fasting and deprived of food at the time, and that Collet had no appetite either; that the two were under extreme stress which continued for 41 hours.

The couple was also told in an accusatory manner, David said, that they “needed to tell the truth” about Ezekiel’s circumstances, and therefore any reasonable person would “feel detained.”

Justice Rooke became terse with David however, when he began to argue that police and social workers were trained professionals, and that they should have realized and recognized the couple was not in an “operating state of mind.” He then referenced Section 10 (b) of the Canadian Charter of Rights and Freedoms, which refers to a person’s right to retain counsel and to be informed of that right when they are detained.

Justice Rooke told David “you were given an opportunity to file any charter application you wanted. At this 11th hour, I will not be hearing you on 10 (b).”

The hearing was adjourned briefly then, while Rooke searched for the date the couple was to have filed their charter applications before the court.

During the adjournment, David Stephan left the courtroom, began to enter a small conference room, and screamed loudly twice, before exiting with his wife.

As the hearing reconvened, Justice Rooke once again reiterated that he would not consider any further Charter applications and told David to refrain from repeating the same arguments.

Collet Stephan was also called to give her defense arguments, during which she told the court because she was involved in an extremely stressful circumstance with her son, that she “mis-stated some things,” and was not in an operating state of mind either.

Justice Rooke then told her even though she may have made some mistakes, that did not mean she was not in an “operating mind,” and referred to her consistency in statements to both Dr. D’Mello and to police.

“We’re talking about someone with a mental illness or with a drug or alcohol impairment, not just because you’re tired,” said Rooke.

Collet then told the court that a parent should not have to worry that as they are seeking help from a doctor, they may be setting themselves up for potential prosecution.

She accused Dr. D’Mello of being “deceptive” and of misrepresenting herself, while taking advantage of a state of shock, and referenced the Canadian Charter of Rights and Freedoms Section 7, which protects an individual’s autonomy and personal legal rights from actions of the government.

Again, Justice Rooke told the Stephans that he would not entertain any Section 7 application.

“You had every opportunity to file any application,” said Rooke. “I can’t deal with the issue of competence…You well knew going back to June 28 with respect to Charter violations. That’s the end of it. Sorry, too bad.”

Rooke reserved his decision on the voluntariness of the statements by both Collet, and David until 10 a.m. Thursday, Mar. 7.

by Lara Fominoff @LaraFominoff on Twitter

Judge rules on three Stephan applications, reserves decision on voluntariness until Thursday

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