R v Stephan, 2016 ABQB 319

Court of Queen’s Bench of Alberta Citation: R v Stephan, 2016 ABQB 319 Date: 20160608 Docket: 130163405Q1 Registry: Lethbridge Between: Her Majesty the Queen Crown - and - David Stephan and Collet Stephan Accused _ ________________________________________ ______________ Findings of Fact of the Honourable Mr. Justice R.A. Jerke _________________________________________ ______________ [ 1 ] On April 26, 2016, a jury convicted David Stephan and Collet Stephan of failing to provide the necessaries of life to their son Ezekiel, a charge under s. 215(2) (

b) of the Criminal Code . The Canadian criminal process now requires that the court impose a sentence on the Stephans. [ 2 ] Section 723(1) of the Criminal Code provides that, before determining the sentence, a court shall give the Crown and the offender an opportunity to make submissions with respect to any facts relevant to sentence. Crown and defence agreed that those submissions would be made in writing only and made part of the sentence hearing, and that no further evidence concerning the facts would be led.

[ 3 ] Section 724(2) of the Criminal Code states:

(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. [ 4 ] Crown and defence agreed that my determination of the facts for sentencing would be given in writing in advance of the sentence hearing. In determining the facts upon which the Stephans will be sentenced, I have followed the instructions given to the jury for their deliberations. I find as proven the following facts. [ 5 ] Ezekiel was born in August 2010, and David Stephen and Collet Stephan were his parents.

They both owed him a duty of care because he was under the charge of both of them. Ezekiel was unable, by reason of his age, to withdraw from their charge and unable, by reason of his age, to provide himself with the necessaries of life. [ 6 ] As of February 2012, the family lived in Glenwood, and Ezekiel was about 18 months old. Mr. Stephan and Ms. Stephan are caring and attentive parents, and had no intention of harming Ezekiel. [ 7 ] Mr. and Ms. Stephan were very involved in Ezekiel’s care, and both were aware of his condition. Ezekiel was under Ms. Stephan’s constant supervision, and although Mr.

Stephan was away from home at work for some of the time, he was kept aware of Ezekiel’s condition. When he was home he was actively involved in Ezekiel’s care and supervision. Mr. and Ms. Stephan made decisions for Ezekiel’s care together. [ 8 ] The Indictment, the formal document which sets out the charge against the Stephans, alleges that they failed to provide necessaries of life to Ezekiel on or between February 27, 2012 and March 13, 2012.

On February 27, 2012, the first date noted in the Indictment, Ezekiel started to show symptoms of illness including a fever, decreased appetite, troublesome breathing, and some difficulty swallowing. This occurred while he was at pre-school. [ 9 ] Mr. and Ms. Stephan were concerned. Later that day they were in Lethbridge at Superstore, where they were aware of the existence of a walk-in medical clinic, but they did not take Ezekiel to the clinic. [ 10 ] Instead Ms. Stephan contacted a friend by telephone, Ms. Meynders, who is a nurse and mid-wife. Ms.

Meynders listened to Ezekiel’s breathing on the cell-phone and croup was discussed. Ms. Stephan also conducted research on the internet. She felt Ezekiel likely had croup, so she and Mr. Stephan treated him with fresh air, humidifier, and fluids by eye-dropper (water with maple syrup). They also gave Ezekiel smoothies with his regular natural supplements and additional natural supplements including olive leaf extract, garlic, and methylsulfonylmethane (MSM). [ 11 ] Mr.

Stephan thought the illness hit Ezekiel really hard, as Ezekiel had never been laid up by an illness before. [ 12 ] Ezekiel’s fever abated although over the next few days his skin frequently felt hot. He continued to have decreased appetite, low energy and reduced activity, and although he had episodes where he had some trouble breathing, overall Mr. Stephan and Ms. Stephan felt he was gradually improving. They discontinued the additional supplements. [ 13 ] The family went to church on Sunday, March 4. By Monday, March 5, Ezekiel seemed to Mr. Stephan and Ms. Stephan to be much improved.

His energy was not yet back to normal but he no longer had trouble breathing. Mr. Stephan went out of town to work and Ms. Stephan took him back to his pre-school class. He did alright there, but it still seemed his energy was not back to normal. [ 14 ] The next day, Tuesday, March 6, Ezekiel was weaker still. He was less responsive and less communicative, and lay in bed and moaned. Ms. Stephan noticed movements she had not observed from him before: he tugged at his diaper and rubbed his face. He did not seem to be controlling these movements, and when reflecting upon them later, Ms.

Stephan thought they may have been involuntary. [ 15 ] Ezekiel’s condition concerned Ms. Stephan, so she looked online. She decided to increase Ezekiel’s fluids. Ms. Stephan did not tell Mr. Stephan about the movements, but she did relate Ezekiel’s condition to Mr. Stephan by telephone that day. She told him that Ezekiel’s energy levels had decreased and she thought he was getting sick again. [ 16 ] Mr. Stephan returned at about noon on Thursday, March 8 with some natural products he had picked up for Ezekiel while he was in Melfort. Ezekiel was in bed in his parents’ room with cartoons playing on a computer.

They gave him the products: apple cider vinegar, onion powder, ginger root, garlic, hot peppers, and horseradish root. Over the next few days he seemed to improve, and his appetite increased somewhat, but he was not really active or playful. He also began to show signs of stiffness or joint tension. [ 17 ] Between Friday, March 9, and Monday, March 12, the stiffness increased and his back began to arch. His lethargy and weakness increased and he was refusing food. The family did not go to church that Sunday.

They were worried about exposing Ezekiel to further illness. [ 18 ] On Sunday night Ezekiel had a lot of difficulty sleeping, and Mr. Stephan slept in the spare bedroom because Ezekiel was in bed with Ms. Stephan. [ 19 ] Mr. Stephan went to a business meeting the morning of Monday, March 12. Ms. Stephan was concerned. She called Ms. Meynders and asked her to come and examine Ezekiel. She told Ms. Meynders that Ezekiel was sleepy in the bathtub. [ 20 ] Ms. Stephan told Mr. Stephan about her concerns when he came home for lunch. She said that Ms. Meynders was coming to

look at Ezekiel. They discussed Ezekiel’s symptoms and whether they should take Ezekiel to a doctor. Mr. Stephan went to his next meeting. His father was also at the meeting and Mr. Stephan asked his father to come over that evening to give Ezekiel a blessing. [ 21 ] Ms. Meynders had a full day but she re-arranged her

schedule and her husband drove her to the Stephans’ home. She examined Ezekiel and told Ms. Stephan that she did not know what the problem was, and she raised the possibility of meningitis. She suggested Ms. Stephan should take Ezekiel to a doctor. Ms. Stephan did research on the internet about meningitis and conducted physical manipulation tests on Ezekiel that she learned about on the internet. She looked at the symptoms for bacterial and viral meningitis, and, mostly due to the duration for which Ezekiel had symptoms, she concluded Ezekiel had viral meningitis. [ 22 ] Ms. Stephan told Mr.

Stephan by telephone what Ms. Meynders said, and that meningitis was a possibility. When Mr. Stephan returned home from his second meeting that Monday they discussed Ms. Meynders’ visit, and Ms. Stephan told him about her research, and about her conclusion. Mr. Stephan agreed that meningitis was a possibility. They both understood that at least bacterial meningitis was extremely serious, yet they agreed not to take Ezekiel to a doctor at that time. Instead they resumed the olive leaf extract, garlic, and MSM supplement, and started him on Total Reload, which is another type of supplement.

This occurred around suppertime on Monday, March 12. [ 23 ] On Monday evening Mr. Stephan’s father arrived to give Ezekiel a blessing. He did this in the parent’s bedroom, where Ezekiel was staying on the bed. [ 24 ] On Tuesday, March 13, Mr. Stephan decided to take the day off to help Ms. Stephan out, and because he and Ms. Stephan needed to go into Lethbridge to sign purchase documents. By the time of the trip into Lethbridge Ezekiel was too stiff to sit comfortably in his car seat so Ms.

Stephan rode on the one-hour trip from Glenwood to Lethbridge in the back of their SUV with him on a bed they made up for him. [ 25 ] Ms. Stephan had earlier called a naturopathic clinic and told the receptionist she wanted something to boost Ezekiel’s immune system because he had viral meningitis. The receptionist told her she should take Ezekiel to a doctor, and Ms. Stephan told her that they had a nurse looking in on the baby. After the Stephans finished at their lawyer’s office they went to the naturopathic clinic and got a product called Blast, which is an echinacea tincture; a natural remedy.

They gave Ezekiel some, and then went shopping at Superstore. They did not take him to the walk-in medical clinic there, but instead they returned home, this time with Mr. Stephan lying in the back with Ezekiel. [ 26 ] When they got home they gave Ezekiel more fluids and it seemed to them that he began to have a very restful sleep. Mr. Stephan encouraged Ms. Stephan to go to a meeting for about an hour, and that he would watch Ezekiel. [ 27 ] Mr. Stephan noticed that Ezekiel began to experience irregular breathing, and shortly after Ms. Stephan returned from her meeting, around 9 pm, Ezekiel stopped breathing.

Mr. Stephan called his father, and then called 911. Ms. Stephan patted Ezekiel’s back and he started breathing but stopped again shortly after. Ms. Stephan gave Ezekiel a few rescue breaths and he started breathing again. [ 28 ] Mr. Stephan told the 911 operator that an ambulance did not need to be dispatched because Ezekiel was breathing again and they would drive him to the hospital. About 20 minutes later the family left in their vehicle for the Cardston hospital. Ezekiel stopped breathing again and Ms. Stephen performed CPR in the vehicle for a considerable time while Mr. Stephan drove and called 911.

The family met the ambulance a few kilometers from Cardston where the ambulance attendants took over Ezekiel’s care. By then Ezekiel was blue. [ 29 ] When the emergency responders took over Ezekiel’s care he had no pulse or blood pressure, his heart rate was 0, he was not breathing, his respiratory rate was 0, and his Glasgow Coma Scale (GCS) score was 3, the lowest score possible. The GCS gives an indication of the level of consciousness. He had no eye opening, muscle movement or verbal response.

The doctors described this state as being dead. [ 30 ] The emergency responders immediately started and performed continuous CPR on Ezekiel during transport to the Cardston hospital, but were unable to secure an airway for about 8 minutes, just before arrival at the hospital. They did then observe Ezekiel’s chest rise and fall. The ambulance had been de-stocked of endotracheal equipment which may have been of assistance in securing an airway. [ 31 ] At the hospital a doctor replaced the tube which had been placed by the emergency responders with a different sized tube to optimize ventilation.

Medication and fluids were provided intravenously and spontaneous circulation (resuscitation) returned after about 30 minutes. CPR continued for 2 more minutes to build up blood pressure. [ 32 ] Ezekiel was then transported to the Lethbridge hospital with a Cardston physician and met by the Alberta Children’s Hospital pediatric intensive care unit (PICU) transport team. He was transported to Calgary via STARS helicopter.

He received various therapies in the PICU but never regained consciousness. [ 33 ] In accordance with protocols he was neurologically assessed by two physicians the morning of March 15 and again on March 16. On both occasions a neurological determination of death and formal brain death was made. The date and time of his death are stated in the autopsy report as March 16, 2012, 9:20 a.m. However, the parents wished to pursue further therapy. On March 18 a final medical assessment was done of Ezekiel determining that there was still no neurological function.

Life-sustaining therapies were then discontinued. [ 34 ] Throughout the time period named in the Indictment, both Mr. and Ms. Stephan were aware of various options for medical care for Ezekiel, including HealthLink and a walk-in medical clinic. [ 35 ] As previously stated, the Indictment alleged that the Stephans failed to provide the necessaries of life to Ezekiel on or between February 27, 2012 and March 13, 2012.

The jury members did not all have to agree on when the failure which endangered Ezekiel’s life occurred as long as each of them was satisfied, beyond a reasonable doubt, that sometime during that time period it was the blameworthy

conduct of David Stephan that exposed Ezekiel to a risk of danger to his life, and the blameworthy conduct of Collet Stephan thatexposed Ezekiel to a risk of danger to his life. [36] I am satisfied beyond a reasonable doubt that after Ms. Meynders visited the Stephan home on Monday, March 12, and theStephans had discussed her visit and Ms. Stephan’s research and conclusions, and observed Ezekiel, that a reasonably prudent andordinary person without medical training in the circumstances of both Mr. Stephan and Ms. Stephan, would have foreseen that medicalattention was required to maintain Ezekiel’s life.

That reasonably prudent and ordinary person would also have foreseen that failing toprovide medical attention would endanger Ezekiel’s life. A reasonably prudent person would have taken Ezekiel to a doctor. [37] Mr. and Ms. Stephan did not provide Ezekiel with medical attention. This was a failure of their legal duty to providenecessaries of life. It was a marked departure from the required standard of care.

It is morally blameworthy conduct. [38] In R v Ferguson, 2008 SCC 6 , [2008] 1 SCR 96, McLachlin CJ, writing for the majority of the Court, stated that thesentencing judge is required to “accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (para 16).She went on at paragraph 18: ... It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the propersentence to be imposed in the case at hand.

The judge should first ask what the issues on sentencing are, and then find such facts as arenecessary to deal with those issues. [39] Counsel for the Stephans argues that this requires me to make a finding of fact on what specific medical ailment wasendangering Ezekiel. [40] I do not agree that this is the correct application of Ferguson to the circumstances of this case.

The issues before the jury werewhether the Stephans failed to provide Ezekiel with medical attention for Ezekiel’s ongoing symptoms at a time when a reasonable andprudent person would have sought medical attention because it was necessary due to the endangerment of Ezekiel’s life. It is notnecessary to find that the Stephans knew that Ezekiel had bacterial meningitis, meningitis, or indeed any specific medical ailment. Themorally blameworthy conduct was not a failure to recognize a specific medical ailment.

It is therefore not necessary to make a finding asto the specific medical ailment that was endangering Ezekiel in order to impose a proper sentence. [41] Similarily, it is not necessary to determine whether problems securing an airway in the ambulance contributed to Ezekiel’sdeath nor even what actually caused his death. These were not legal issues facing the jury. Nor are they facts necessary for sentencing. [42] The failure of Mr. Stephan and Ms. Stephan on Monday, March 12 contributed significantly to the risk to Ezekiel’s life.

Dr.Adeagbo, the medical examiner, found that Ezekiel had a pleural empyema, a lung condition, which in his opinion, contributed withbacterial meningitis to his death. Dr. Sauvageau opined that Ezekiel had a respiratory condition which caused respiratory arrest, and thathe had viral meningitis. Dr. Burkholder provided her opinion that Ezekiel’s meningitis caused severe brain swelling which causedcompression. That compression caused respiratory depression, which caused apnea or breathing cessation, and that caused cardiacarrest.

There was also evidence that both viral and bacterial meningitis can cause a person to stop breathing. Any one of thesepossibilities endangered Ezekiel’s life. Ezekiel stopped breathing more than a day after the Stephans’ failure. If medical attention hadbeen provided to him even as late as when the blameworthy conduct occurred, it could have made a difference for Ezekiel. If he hadreceived medical attention on Monday he would not have had his respiratory arrest out of hospital on Tuesday. [43] Untreated bacterial meningitis is fatal.

It is therefore more dangerous than viral meningitis, but viral meningitis is also veryserious. For example, it can cause a person to stop breathing. Viral meningitis is potentially fatal although far less often than bacterialmeningitis. [44] All of the doctors agreed Ezekiel had meningitis. If this was viral meningitis they all agreed that the outcome was good. If itwas bacterial meningitis, none of the doctors offered a very positive prognosis, but none of them could be very specific. Dr.

Gambleprovided his opinion that on Monday, March 12 this was a grave situation where the child would die without treatment, but withaggressive treatment in ICU, Dr. Gamble was hopeful the child would survive. However, he would have expected a higher likelihoodand greater severity of neurological deficits. None of this is very comforting, but it does show that medical attention on March 12 couldhave made a difference for Ezekiel. [45] These are the facts upon which the sentences imposed upon David Stephan and Collet Stephan will be based.

Heard on the 29th day of February; the 1st, 2nd, 3rd, 4th, ,7th, 8th, 9th, 10th, 11th, 14th, 15th, 16th, 17th, 18th, 21st, 22nd, and 23rd days of March; and the 11th, 12th, 13th, 14th, 15th, 18th, 19th, 20th, 21st, 22nd, 23rd, 25th, and 26th days of April, 2016. Dated at Lethbridge, Alberta this 8th day of June, 2016. R.A. Jerke J.C.Q.B.A.

Appearances: L Weich and C Giles for the Crown S Buckley for the Accused