Stephans seeking court appointed legal aid, trial reimbursement

By Lara Fominoff @LaraFominoff on Twitter and Patrick Burles @PatrickBurles
November 8, 2018 - 3:53pm

LETHBRIDGE - David and Collet Stephan, the couple originally found guilty in 2016 of failing to provide the necessaries of life to their 19-month-old son Ezekiel, must file three new applications before the end of November if they hope to potentially get court ordered legal aid for their trial next June.

A new trial was ordered for the pair, after the Supreme Court of Canada ruled the original trial judge did not properly instruct jurors “in a way that the jury could understand."

Ezekiel died of meningitis in 2012.

The two -- who appeared in Court of Queens Bench in Lethbridge Thursday, Nov. 8, before Justice Elizabeth Hughes via CCTV from Calgary -- told the court they had been unsuccessful in applying for Legal Aid, but still hoped to file a Rowbotham Application (court ordered counsel when legal aid is denied) in conjunction with a Fisher Application (court appoints a specific lawyer to a case, for a specific reason).

They also intend to seek reimbursement for their expenses during past trials, saying the court should cover the cost because of the judge's error in his charge to the jury.

David Stephan explained to the court that he and wife Collet have liquidated most of their assets, are still indebted to their previous counsel and cannot afford to pay additional legal counsel.

In the hopes of speeding proceedings along, Justice Hughes agreed to a three-week adjournment, so the necessary applications could be filed, as the Stephans move to northern Alberta.

David also asked the court whether the two would have to abide by any decision the court makes should their application(s) be successful and whether expert witnesses could be called to testify during their trial.

Justice Hughes explained that the judge hearing the applications would decide either way, and that the couple would be bound by that decision. Should the Rowbotham and/or Fisher applications be successful, then their appointed council would contact legal aid and give information as to why experts should be retained.

If the couple is not successful, they could act on their own behalf or retain counsel privately.

The matter was then adjourned to Nov. 29 at which time a date will be set to hear the applications.

Disclosure of information to the Stephans was also addressed, including the Crown’s concerns about handing over thousands of pages of documents.

A letter dated Oct. 22, 2018 indicated three conditions prior to receiving disclosure, including using the information only to answer to the original charges, not distributing copies to anyone other than to a lawyer, and not to distribute private information such as names and addresses of witnesses or others included in the documents.

Outlining his concerns, David said that should they need to represent themselves, they would have to give information contained in the disclosure documents to potential experts. Of additional concern was what he suggested was “withheld, falsified and destroyed” evidence.

The Crown told the court that if there was an issue using disclosure to retain or consult an expert, it would not likely be prohibited, and it could be discussed with the Crown. However, normally, it would be done through counsel.

Justice Hughes made it clear to the Stephans that when disclosure is received, there are always restrictions governing the use of the information, including not distributing it on social media at any time. “I’m telling you now, no disclosure goes without conditions,” said Justice Hughes. “Any disclosure to any lawyer goes with the implied conditions that it may only be used to make full answer to defence. It may not be posted on any blog. It may not be shared with other people unless they’re private investigators or someone who is assisting in full answer defence.”

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