Failure to Provide the Necessities of Life. Elements of the Offence and the sufficiency of a jury charge.
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.