The parents of the deceased child had their conviction for the failure to provide the necessities of life for their (deceased) child overturned by the Supreme Court of Canada (the “SCC”) recently. In Regina v. Stephan, 2018 SCC 21, the SCC overturned the a ruling from the Alberta Court of Appeal and adopted reasoning of Justice O’Ferrall’s dissent.
The facts in this case were extremely unfortunate. The majority of the panel at the Alberta Court of Appeal restated the facts in the following terms:
[2] The appellants’ son, Ezekiel, was born in August 2010. On February 27, 2012, Ezekiel began to exhibit signs of illness while at pre-school. Symptoms included fever, decreased appetite, and trouble breathing and swallowing.
[3] Both parents were concerned. Rather than take him to a medical clinic, however, they contacted a family friend, a nurse, by telephone. After listening to Ezekiel’s breathing over the phone, the friend thought the problem might be croup. The appellants treated Ezekiel with fresh air, fluids, humidity and natural supplements including garlic, olive leaf extract and Methylsulonylmethane.
[4] Over the next few days, Ezekiel’s fever abated but he still felt hot. He continued to have a decreased appetite, low energy, decreased activity, and trouble breathing.
[5] By March 5, the appellants felt Ezekiel’s condition had improved as he no longer had trouble breathing, and he returned to pre-school. David Stephan went out of town to work.
[6] A day later, March 6, Ezekiel was weaker. He was less responsive; he stayed in bed and moaned. He tugged at his diaper and rubbed his face, both movements that seemed to Collet Stephan to be involuntary. Collet Stephanlooked online for a possible explanation and phoned David Stephan to report that Ezekiel seemed to be getting sick again.
[7] David Stephan returned from work on March 8 with some natural products he had picked up while away. Ezekiel was fed apple cider vinegar, onion powder, ginger root, garlic, hot peppers and horseradish root. Over the next few days, Ezekiel’s condition appeared to improve, although he began to show signs of stiffness or joint tension.
[8] Between March 9 and 12, the stiffness increased and Ezekiel’s back began to arch. He refused food, and his lethargy and weakness increased. His parents were worried.
[9] On March 12, David Stephan went to a business meeting. Collet Stephan phoned a nurse friend to ask her to examine Ezekiel. Collet told her husband about her concerns when he came home for lunch.
[10] The family friend examined Ezekiel and suggested the problem might be meningitis. She suggested that Ezekiel be taken to the doctor. Rather than following that advice, Collet Stephan searched the internet seeking information about meningitis. Based upon the information she obtained, Collet Stephan tried the Brudzinski and Kernig tests for meningitis. The tests involve physical manipulation of the child’s head or legs. Ezekiel tested positive on both, but Collet concluded Ezekiel had viral meningitis, rather than the more serious form of bacterial meningitis. Collet Stephan communicated her conclusions to her husband when he returned from a second business meeting that day.
[11] David Stephan stayed home the following day, March 13, to help and to take Collet Stephan to Lethbridge to sign some documents. Before leaving for Lethbridge, Collet Stephan contacted a naturopathic clinic to get some advice about boosting Ezekiel’s immune system because he had meningitis. The receptionist told her to take Ezekiel to a doctor.
[12] The appellants proceeded to Lethbridge with Ezekiel lying on a bed in the back of their vehicle because he could no longer sit comfortably in his car seat. After dealing with their lawyer, the appellants went to the naturopathic clinic to purchase an echinacea tincture called Blast. They administered this to Ezekiel, went shopping, and then returned home.
[13] That evening, Ezekiel began exhibiting difficulty breathing. About 9:00 p.m., after Collet Stephan had returned from a meeting, Ezekiel stopped breathing. David Stephan phoned his father Anthony Stephan and then 911.
[14] Collet Stephan got Ezekiel breathing again by slapping him on the back and then giving him a few rescue breaths. David Stephan phoned 911 to call off the ambulance saying they would bring Ezekiel to the hospital by car. The family left 20 minutes later for the Cardston hospital but before they arrived, Ezekiel again stopped breathing. Collet Stephan performed CPR while David Stephan drove on and phoned 911. They were met by an ambulance outside of Cardston.
[15] The responders began performing CPR but they had difficulty securing an airway due to a lack of proper equipment. This deficiency lasted eight minutes until just before the ambulance reached the hospital in Cardston.
[16] Ezekiel was treated at the Cardston hospital and then transferred to Lethbridge in order to be taken by STARS air ambulance to the Children’s Hospital in Calgary. He never regained consciousness. On March 15 and 16, Ezekiel was neurologically assessed and determined to be brain-dead. Life sustaining therapies were discontinued and on March 18, 2012, Ezekiel died.
However, Justice O’Ferrall said the following about the facts of the case, in his dissent:
[211] On the facts of this case, it cannot be argued that the Stephans were not devoted and loving parents. They did not neglect their 18-month old son’s symptoms when he exhibited them. They did not fail to provide him with what they thought were the necessaries of life. They monitored him closely when he became ill, doing what they believed was best for him. There is no doubt the decisions they made with respect to the well-being of their son turned out to be terribly wrong, but it is not clear that their acts or omissions were criminal in the sense of deserving of punishment for moral blameworthiness. [212] That said, a jury of their peers did find the Stephans guilty of failing to provide the necessaries of life to their son, contrary to section 215(2)(a)(ii) of the Criminal Code. However, as argued by the appellants, the trial judge’s charge to the jury was problematic, perhaps to the point of impacting the fairness of the trial. At the very least, the jury charge was confusing, misleading, and deficient in describing a key element of the offence. Furthermore, the trial judge did not properly instruct the jury on the fault element or the mens rea of the offence. The cumulative effect of the jury instructions may have been an unsafe or suspect verdict.
The SCC accepted Justice O’Ferrall’s reasoning that in sum, the trial judge failed in his jury charge for three (3) reasons:
(1)The Trial Judge he did not adequately explain what the jury’s focus should have been in determining whether there had been a failureunder the second element of the offence. The full legal test, outlining the elements of the offence, was explained in Reginav F,2008 SCC 60 (CanLII) at paras 66-67, [2008] 3 SCR 215: The actus reus of failing to provide the necessaries of life will be established if it is proved (1) that the accused was under a legal duty to provide the necessaries of life to the person in question pursuant to s. 215(1)(a); (2) that, from an objective standpoint, he or she failed to perform the duty; and (3) that, again from an objective standpoint, this failure endangered the life of the person to whom the duty was owed, or caused or was likely to cause the health of that person to be endangered permanently. Following Charron J.’s reasoning in R. v. Beatty, [2008] 1 S.C.R. 49, 2008 SCC 5 (CanLII), the marked departure standard is not applied at this point, since “[n]othing is gained by adding to the words of [the statute] at this stage of the analysis” (para. 45). The mens rea of failing to provide the necessaries of life will be established if it is proved that the conduct of the accused represented a marked departure from the conduct of a reasonable parent, foster parent, guardian or family head in the same circumstances. Each of the four elements specified in the above test (the three elements of the actus reus plus the mens rearequirement) must be proven in order to obtain a conviction. It was important for the jury to keep these four distinct elements in mind. However, the trial judge, in his charge to the jury, combined two of them. Secondly, the trial judge appeared to incorrectly assume the third (3rd) element of the offence had already been met in instructing the jury on the second (2nd) element of the offence. The trial judge made the following comments to the jury in this case: In deciding whether the Crown has proven beyond a reasonable doubt that David Stephan failed to provide necessaries of life you must determine whether the Crown has proven beyond a reasonable doubt that the conduct of David Stephan represented a marked departure from the conduct of a reasonably prudent and ordinary person where that reasonable person, in all the circumstances of David Stephan would foresee that medical attention was required to maintain Ezekiel’s life, and that reasonable person would also foresee that failing to provide the medical attention would endanger Ezekiel’s life. This was found to be an error by Justice O’Ferral because “…he foregoing instruction seems to invite the jury to assume as true the latter half of the statement (in bold) when considering whether the conduct of the parents amounted to a failure to provide the necessaries of life. The latter half of the statement is essentially the third element of the actus reus of the offence, which is to be determined only after a failure to provide the necessaries of life has been established.” Thirdly, the trial failed to adequately explain the mens rea element of the offence to the jury. Specifically, the Trial Judge was required to explain what constituted a “marked departure”; and this was not done. Marked departure is a difficult concept even for those with legal training and therefore requires explanation. The discussion in Regina v Beatty, 2008 SCC 5 (CanLII), [2008] 1 SCR 49 is helpful. That case dealt with the charge of dangerous driving which, like that of failing to provide the necessaries of life, requires proof of a marked departure from the standard of care of a reasonable person in order to found a conviction. The majority in Beatty explains, at paragraph 7, that: The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind. This case demonstrates the necessity of ensuring that the jury charge is properly examined before being put to the jury either at the trial stage or (after the fact) at the appellate stage of the criminal law proceedings. It is critical to seek the advice of a criminal trial and appeal lawyer in face serious criminal charges wherein the Crown is seeking a conviction for failure to provide for the necessities of life.If you have been charged with a serious criminal offence, contact Mr. J.S. Patel, Criminal Lawyer for advice at 403-585-1960.
