R v Stephan, 2016 ABQB 353

Court of Queen’s Bench of Alberta Citation: R v Stephan, 2016 ABQB 353 Date: 20160627 Docket: 130163405Q1 Registry: Lethbridge Between: Her Majesty the Queen Crown - and - David Robert Stephan and Collet Dawn Stephan Accused _ ________________________________________ ______________ Reasons for Sentence of the Honourable Mr. Justice R.A. Jerke _________________________________________ ______________ Background [ 1 ] On April 26, 2016, after a 5 week trial, a jury found David Stephan and Collet Stephan guilty of failing to provide the necessaries of life to their son Ezekiel, contrary to s215 of the Criminal Code .

The sentence hearing was held on June 23, 2016. This is my decision on sentence for each of them.

[2] The purpose of s215 of the Criminal Code is to establish and enforce minimal standards of care: see R v Peterson, (2005) (ON CA), 201 CCC (3d) 220, 34 CR (6th) 120 (ONCA) and R v Naglik, (SCC), [1993] 3 SCR 122.When charged under this section, criminal responsibility is determined on an objective basis. [3] The jury had a specific and crucial job. The duty of jurors is to assess and consider only the evidence in the case, impartially,and then reach a decision according to the law. That verdict required the jury to separately assess and determine for each of Mr. Stephanand Ms.

Stephan whether the Crown had proven, beyond a reasonable doubt, that the blameworthy conduct of Mr. Stephan and Ms.Stephan had risen to the level where it was conduct deserving of criminal sanction. In making its decision a jury, and each individualjuror, must do so without sympathy, prejudice or fear, and without being influenced by public opinion.

The 12 members of this jury arethe only ones who have heard all of the evidence in this case, and been confined to this specific and vital decision-making role. [4] Each person in the jury agreed, beyond a reasonable doubt, that the conduct of David Stephan and the conduct of ColletStephan in these circumstances represented marked departures from the conduct of a reasonably prudent and ordinary person, withoutmedical training, where that reasonable person would foresee that medical attention was required to maintain Ezekiel’s life and thatfailing to provide medical attention would endanger Ezekiel’s life.

Each member of the jury also agreed beyond a reasonable doubt thatDavid Stephan’s failure contributed significantly to a risk of danger to Ezekiel’s life and that Collet Stephan’s failure also contributedsignificantly to a risk of danger to Ezekiel’s life. [5] Some people say it takes a community to raise a child.

In this case, 12 members of our community heard all the properlyadmissible evidence that the Crown and the Stephans chose to put forward, and decided that David Stephan and Collet Stephan wereguilty when they criminally breached the community’s minimum standard of care. [6] This case has generated considerable public attention and debate on a number of issues. That is a healthy thing, andsomething we all support. Freedom of thought, belief, opinion and expression, including freedom of the press, are all fundamentalfreedoms under s2 of the Charter.

And those rights are important not just for individuals, but for society as a whole, as an essentialhallmark and requirement of democracy. The Supreme Court of Canada stated in Edmonton Journal v Alberta, (SCC),[1989] 2 SCR 1326: “It is difficult to imagine a guaranteed right more important to a democratic society than freedom ofexpression...The vital importance of the concept cannot be ignored”. [7] When the impact of this offence is considered, the Court considers how the commission of the offence by Mr. Stephan andMs. Stephan has affected Ezekiel, other victims, and the community.

This part of the inquiry is not about a public debate on, forexample, state intervention, natural remedies, or whether there should even be community standards. This is about what effect has beencaused by morally blameworthy conduct that contributed significantly to put Ezekiel’s life at risk. For Ezekiel, he was denied medicalattention that could have made a difference; he could have lived. For the community, we are all diminished when otherwise lovingparents fail to meet a minimal standard of care that puts their child’s life at risk.

The Facts [8] Counsel for the Crown and for the Stephans were previously provided with my findings of fact for the purpose ofsentencing. Those findings are contained in R v Stephan, 2016 ABQB 319. For ease of reference, I reproduce the fact findings containedwithin that judgment: 5 Ezekiel was born in August 2010, and David Stephen and Collet Stephan were his parents. They both owed him a duty of care becausehe was under the charge of both of them.

Ezekiel was unable, by reason of his age, to withdraw from their charge and unable, by reasonof 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 caringand 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’sconstant supervision, and although Mr. Stephan was away from home at work for some of the time, he was kept aware of Ezekiel’scondition.

When he was home he was actively involved in Ezekiel’s care and supervision. Mr. and Ms. Stephan made decisions forEzekiel’s care together. 8 The Indictment, the formal document which sets out the charge against the Stephans, alleges that they failed to provide necessaries oflife 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 difficultyswallowing. 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 ofa 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 toEzekiel’s breathing on the cell-phone and croup was discussed. Ms. Stephan also conducted research on the internet. She felt Ezekiellikely 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, lowenergy 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 that exposed 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 the Stephans had discussed her visit and Ms.

Stephan’s research and conclusions, and observed Ezekiel, that a reasonably prudent and ordinary person without medical training in the circumstances of both Mr. Stephan and Ms. Stephan, would have foreseen that medical attention was required to maintain Ezekiel’s life. That reasonably prudent and ordinary person would also have foreseen that failing to provide 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 provide necessaries of life.

It was a marked departure from the required standard of care. It is morally blameworthy conduct. ... 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 with bacterial meningitis to his death. Dr. Sauvageau opined that Ezekiel had a respiratory condition which caused respiratory arrest, and that he had viral meningitis. Dr.

Burkholder provided her opinion that Ezekiel’s meningitis caused severe brain swelling which caused compression. That compression caused respiratory depression, which caused apnea or breathing cessation, and that caused cardiac arrest. There was also evidence that both viral and bacterial meningitis can cause a person to stop breathing. Any one of these possibilities endangered Ezekiel’s life. Ezekiel stopped breathing more than a day after the Stephans’ failure. If medical attention had been provided to him even as late as when the blameworthy conduct occurred, it could have made a difference for Ezekiel.

If he had received 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 very serious. For example, it can cause a person to stop breathing. Viral meningitis is potentially fatal although far less often than bacterial meningitis. 44 All of the doctors agreed Ezekiel had meningitis. If this was viral meningitis they all agreed that the outcome was good.

If it was bacterial meningitis, none of the doctors offered a very positive prognosis, but none of them could be very specific. Dr. Gamble provided his opinion that on Monday, March 12 this was a grave situation where the child would die without treatment, but with aggressive treatment in ICU, Dr. Gamble was hopeful the child would survive. However, he would have expected a higher likelihood and greater severity of neurological deficits. None of this is very comforting, but it does show that medical attention on March 12 could have made a difference for Ezekiel.

Principals of Sentencing [ 9 ] Sentencing is an inherently individualized process: Mr. Stephan and Ms. Stephan are considered individually even though they were jointly charged and both convicted. Sentences are based on principles and objectives that all of us in society agree are important. “...[I]t is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed...”: R v Lacasse , 2015 SCC 64 at para 54 . [ 10 ] Parliament has stated:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 11 ] The fundamental principle is this: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 12 ] The Alberta Court of Appeal stated the following about proportionality in R v Nickel , 2012 ABCA 158 at para 11 : 9 ... Proportionality is the fundamental and underlying principle of sentencing, and requires the court to ensure that the penalty fits the crime. It has two components.

The first is the gravity of the offence, which is a measure of “what the offender did wrong”: Arcand at para 57. The second relates to the moral culpability of the offender. As noted in R v Laberge , 1995 ABCA 196 , 165 AR 375, the court must determine the extent to which the offender actually intended the consequences of his actions.

As Fraser CJA said there, [O]ur criminal justice system is based on the premise that, all other things being equal, the more an offender's "intention" or "awareness" approaches the point that he knew or was wilfully blind to the fact that his unlawful act was not only likely to put the victim at risk of death, but indeed to cause death, the more culpable he is. (para 14) [ 13 ] Parliament has also identified other sentencing principles which a Court must take into consideration: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing; ... (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, ... shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ... (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders. ... 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Legal Parameters and Positions of Counsel [ 14 ] The maximum penalty for failing to provide necessaries of life, when prosecuted as an indictable offence, is 5 years imprisonment. [ 15 ] The Crown is seeking a period of imprisonment for each of David Stephan and Collet Stephan of three to four and half years to be served in custody. [ 16 ] The defence seeks a conditional discharge and failing this, a suspended sentence. If the Court concludes that there must be

some jail sentence, the defence seeks a conditional sentence. [ 17 ] I have considered all of the cases provided by the Crown and defence. The use of other cases for the purposes of sentence parity is difficult in this case because none of the cases deal with similar offenders committing similar offences in similar circumstances. [ 18 ] The case closest to the Stephans is R v Pitre , 2015 NBQB 44 . Ms. Petrie was the owner and operator of a special care home at which the victim, age 74, was a long-time resident. When paramedics responded to a 911 call they found the victim non-responsive, frail and pale.

He had prominent bed sores and exhibited a gangrenous odor. He was suffering from acute chronic cardiac insufficiency and died three days later. Ms. Petrie had taken the victim to a doctor two weeks before to address his bed sores. She conceded that given his extreme and serious condition she should have called 911 earlier. Her omission was a significant contributor to the victim’s death. She pled guilty to criminal negligence causing death, took full responsibility for the offence and did not try to diminish her role in the victim’s death. She expressed remorse. Ms.

Pitre was 62, had no prior convictions, had a very positive pre-sentence report and had been through very difficult times since the victim’s death, including loss of her business and serious health issues. She had continued family support and there was no likelihood she would re-offend. She was sentenced to eight months imprisonment plus two years’ probation. [ 19 ] The Crown relies heavily on R v Nickel . In that case, the Court of Appeal imposed a sentence of three years’ imprisonment for aggravated assault, and six months’ consecutive for failing to provide necessaries. Mr.

Nickel placed his nine-month-old child’s feet in hot water which caused third-degree burns. He made up a story for the mother about how the injury occurred and dissuaded her from taking the child for medical attention. He pled guilty, had no prior criminal record and accepted responsibility for his actions. The baby made a remarkable recovery. [ 20 ] The Court ruled that, “The crime of failing to provide necessaries is not a matter to be absorbed into the aggravated assault. It involved intentional continuation of callous mistreatment of this child that lasted for days”: para 46.

All five members of the Court agreed with a sentence of six months consecutive for failing to provide necessaries of life. But because of the factual connections and overlap between the two separate charges, the findings are difficult to apply here. The case also involved numerous factors of culpability, namely conduct “likely to subject the child to a serious form of lingering harm and suffering,” conduct that “was intentional and without and justification,” and Mr.

Nickel “must have realized that the child would suffer serious bodily harm of that type, and he was reckless or indifferent as to the result” and “he wanted to see the child’s reaction, so he knew she would react, particularly given that the water was hot.”: para 43. [ 21 ] However, the Court of Appeal’s decision is instructive, for two reasons.

First, the Court described the approach to sentencing in cases of this nature at para 31: What is required is adherence to the applicable sentencing principles, particularly the proportionality principle, keeping in mind the primary objectives of denunciation and deterrence required by s 718.01. That will necessitate that particular attention be given to the culpability associated with both the physical and mental dimensions of the crime. [ 22 ] Second, the Court declined to establish judicial categories for such offences.

Instead it stated at para 40: “Over time, discernible ranges of sentences will emerge from these guidelines. That gradual development will be the product of a careful process, involving due consideration of the circumstances of each case and not merely the numerical outcomes”. [ 23 ] A significant premise of the Crown’s position is that R v Nickel sets out the framework for sentencing “caregivers who abuse children”, and that Nickel must be followed when determining a fit sentence for the Stephans.

The Crown argued that when the Stephans put their own interests above the needs of Ezekiel, and his life was endangered, that effectively amounts to child abuse. However, the Crown gave no authority to support this characterization. Defence disputes the characterization of the Stephans’ conduct as abuse. [ 24 ] The Criminal Code does not define “abuse”. In my view, “abuse” connotes conduct that causes harm. It is normally associated with

an act, not an omission, although prolonged omissions, such as starvation (failure to provide food) could amount to abuse, especially where the conduct is deliberate. This is consistent with the ordinary definition of “abuse”. For example, the Canadian Oxford Dictionary , (Oxford University Press: Ontario, 1998), defines “abuse” as “maltreatment of a person”, and “abusive” as “tending to abuse others: violent”. [ 25 ] In this case, the Stephans engaged in no conduct that initiated Ezekiel’s situation of life endangerment; they did nothing to make him sick in the first place.

Their failure was to provide medical attention once it became clear that it was required: a very immediate and isolated failure.

Section 718.2(

a) expressly states that it is an aggravating factor when an offender abuses a person under the age of 18. But s724(3) requires the Crown to establish the presence of any aggravating factor beyond a reasonable doubt. On the facts before me, I find that the Crown has failed to prove, beyond a reasonable doubt, that the conduct of Mr. Stephan or Ms. Stephan constitutes “abuse”. [ 26 ] The Crown’s entire framework for seeking a sentence of three to four and a half years collapses.

The Crown submissions are simply unrealistic. [ 27 ] Beyond that, the Crown’s position also proposes a penal sanction which is far too harsh for the gravity of this offence and the degree of responsibility of the Stephans. The first main flaw in the Crown’s position comes from the argument that “the gravity attached to the offence increases when the victim dies as a result of the offender’s criminal conduct”. That proposition is true, but it was not proven that the Stephans’ failure actually caused Ezekiel’s death.

The second flaw is that the Crown places too much emphasis on the events leading to the criminal conduct.

It is true that the actions of the Stephans before March 12 could have been different, but I have found the offence occurred as of March 12. [ 28 ] However, I also conclude that the defence position fails to give adequate consideration to the objectives of denunciation and deterrence for parents in a position of trust who put their young child at substantial risk of death. [ 29 ] Under s730 a court may order an absolute or conditional discharge for this offence if it considers it to be in the best interests of the offender and not contrary to the public interest.

There are six factors to consider in deciding whether a discharge is appropriate: 1)

the nature of the offence; 2) the prevalence of the particular offence; 3) whether the offence was for the purpose of the offender makingpersonal gain; 4) where the offence is relating to property, the value of the property destroyed or stolen; 5) whether the crime wascommitted as a matter of impulse or whether it was calculated; and 6) whether the circumstance that an offender has committed theoffence is something which should be a matter of record for the public: R v MacFarlane, (1976), 1976 ALTASCAD 6 , 55 AR 222 (CA) R v Sereke, 2013 ABCA 67 R v Wright, 2013 ABCA 428 [30] In R v Zentner, 2012 ABCA 332, the Court of Appeal confirmed that discharges are to be granted “sparingly”. [31] This is a serious charge which relates to the failure of a parent toward their child.

This offence was not committed for anypersonal gain but it was a conscious decision by each of the Stephans which prevailed for over a day. There is no indication that theoffence is prevalent in the community but this is a very public prosecution related to a critical community standard. Denunciation anddeterrence require that the matter should be of record for the public. Therefore, I find that a discharge would be contrary to the publicinterest. [32] Defence agreed that the same analysis applies to consideration of a suspended sentence.

Likewise I find it to would becontrary to the public interest. [33] Therefore I am left to determine the appropriate custodial sentence for each offender. Circumstances of the Offenders [34] Both Mr. Stephan and Ms. Stephan are well known as caring and attentive parents. They now have three children, ages eight,three and one. They are both closely bonded with their children, and their children with them. [35] Mr. Stephan is employed in the marketing arm of a company that sells non-prescription natural health products and his workoften takes him away from home. Ms. Stephan is currently a stay-at-home mother.

Their oldest child is home schooled. Ms. Stephan hashopes to complete her outstanding requirements to obtain a commercial pilot licence and one day re-enter the work force. [36] The Stephans are young persons of very good character. It is no surprise that neither of them has any criminal record. Therehave been no conditions on them while they have been on release on this charge. They are stable and responsible people. [37] The Stephans are part of a small community so the stress and alienation from that community has been greater for them thanfor others facing criminal proceedings.

They have, understandably, been profoundly affected by perhaps the greatest loss one canexperience, the death of their own child. Their eldest son has also been significantly affected by the loss of his brother. [38] Since Ezekiel’s death the Stephans have experienced difficult emotions, financial pressures, issues in their marriage, anduncertainty, particularly after the charge was laid. There have been difficult times with their children, who are not used to beingseparated from them. The Stephans felt compelled not to have more children because of their uncertain state.

Aggravating and Mitigating Factors [39] The Stephans’ lack of criminal record is a mitigating circumstance. [40] The fact that the victim was a vulnerable, young child and that the Stephans were in a position of trust in relation to him, theirson, are aggravating circumstances. [41] The Stephans did not cause Ezekiel’s health problems. But they did not act for more than a day despite Ezekiel’s serioussymptoms, and they only took action once he actually stopped breathing. While the time from when the Stephans should have acted untilthe time they did act is less than that in other cases, it is still aggravating.

This is made more concerning by their conduct during thattime, particularly travelling to Lethbridge with a sick little boy in the back of their SUV, again without going to the clinic in the mall. [42] The Crown did not prove that the Stephans’ failure caused Ezekiel’s death, only that they endangered his life. But it is not amitigating circumstance that Ezekiel may have died from some other contributor, for example untreated bacterial meningitis. Proportionality of Sentence as Between David Stephan andCollet Stephan [43] Both Mr. Stephan and Ms.

Stephan failed to provide Ezekiel with medical attention when any reasonable and prudent personwould have. The Stephans were not convicted because they gave Ezekiel natural remedies or because of any blameworthy act ofcommission. Their blameworthy conduct is an omission, a failure to act. The blameworthy conduct is a marked departure from anobjective standard, which is not as serious as a marked and substantial departure such as is required in a criminal negligence charge.

In Rv Pitre the conviction was for criminal negligence causing death, not failing to provide necessaries. [44] Assessing the moral culpability of an offender requires consideration of the state of mind of the offender. This requires anindividualized approach. The more Ms. Stephan’s “intention” or “awareness” approaches the point that she knew or was willfully blind

to the fact that her unlawful conduct was likely to put Ezekiel at risk of death, the more culpable she is. Likewise with Mr. Stephan; themore Mr. Stephan’s “intention” or “awareness” approaches the point that he knew or was willfully blind to the fact that his unlawfulconduct was likely to put Ezekiel at risk of death, the more culpable he is. The purpose of this charge is to establish and enforce minimalstandards of care, so the willingness or resistance of an offender to adhere to standards of care is important. [45] Both Ms Stephan. and Mr.

Stephan have the skill, the knowledge, and the interest to be good parents. Both of them are caringand attentive parents. They were both aware of Ezekiel’s condition and symptoms. They both participated in decisions and cared for himthroughout including providing natural supplements to him. Neither of them intended to put Ezekiel’s life at risk but on Monday theyboth believed he had meningitis, discussed going to a doctor, and decided not to. So there is much they knew, decided and did together;but there are also significant differences in their actions. [46] Ms.

Stephan conducted research on the internet and called Ms. Meynders when Ezekiel first became ill. Ms. Stephan againconducted research on the internet on Tuesday March 6. She called Ms. Meynders to come out on March 12 and again conductedresearch on the internet. She conducted tests for meningitis that she learned about on the internet. [47] Mr. Stephan was aware of what Ms. Stephan heard and learned but did not conduct any research or check with anyone else.He decided, based on what Ms. Stephan told him by telephone on March 6, to get additional supplements while in Melfort. On Monday,March 12, when Ms.

Stephan told him Ms. Meynders said meningitis was a possibility and about her own research, he invited his fatherto come over to give Ezekiel a blessing. He took no real action when Ezekiel experienced irregular breathing on Tuesday, and whenEzekiel stopped breathing he called his father before calling 911. When Ezekiel started breathing again he told the 911 operator theambulance did not need to be dispatched. [48] We do not know why Mr. Stephan and Ms. Stephan acted differently, but they did. And these differences demonstrate thatMr. Stephan was clearly more wilfully blind than Ms. Stephan.

Due to his greater inaction, at multiple stages, in seeking medicalattention for Ezekiel, Mr. Stephan’s moral culpability is greater than that of Ms. Stephan. [49] Remorse requires an acceptance of guilt: R v Church of Scientology of Toronto, (ON CA), 33 OR (3d)65 (ONCA). Both Mr. Stephan and Ms. Stephan are certainly deeply sorry that Ezekiel died, and they both wish things had turned outdifferently. But they have yet to take personal responsibility for their failure. Ms. Stephan seems much closer to remorseful than Mr.Stephan. Ms.

Stephan chose to testify at the sentencing hearing, knowingly subjecting herself to cross-examination by the Crown. Shesaid this during her testimony: “It's now been over four years of being plagued with could have, should have, would have, and if I couldturn back time and do anything different so that he would be here, I most definitely would”. [50] Mr. Stephan did not testify. However, at the end of the sentencing hearing both offenders were given the opportunity to speak.Ms. Stephan expressly stated that she was sorry she did not take Ezekiel to the hospital. Mr. Stephan also spoke.

His comments illustratethat he is still more focussed on the consequences to himself, rather than moving to acceptance of responsibility: In regard to the remorse, as well, looking back at it, had I known -- and honestly had I known that it could have possibly end up in thattype of situation, I would not put my child at risk. And it has brought me to my knees many, many times where I've just been devastatedover the issue. I spent basically a month in a rut after the situation, coming to terms with it, trying to understand how it possibly came tothat situation and not knowing how I'd be able to move on.

And so there's definitely -- and I want to voice that that there is definitelyremorse, definitely remorse in the sense that I wish I could have done anything to turn back time to bring him back, to not have him inthat situation where he ended up on life support and ended up having to pull him off. There is nothing that I wouldn't have given up tobring him back. And I pray that you consider that. [51] Since his conviction, Mr. Stephan has chosen to widely publicize his views in many other ways. A recent video interview hegave was entered as an exhibit and played at the sentencing hearing. In that video, Mr.

Stephan says that the case is about parental rightsand medical choice. He characterized the situation as “whether we have the right to vaccinate or not vaccinate”, and “whether or not wehave to rush our children to the doctor every time they even get just the sniffles”. [52] This case was about whether parents who failed to take a sick boy to the hospital should be held criminally responsible. Thetrial was not about vaccination. In the trial, the evidence was that Ezekiel became sicker and sicker, to the point he actually stoppedbreathing before his parents finally sought medical attention.

This is far beyond a child who simply has the sniffles. [53] Mr. Stephan further explained the situation as one where he and his wife were “treating our child with different homeopathicremedies, different herbal remedies like tens of thousands of people do, nothing out of the ordinary, and he wasn’t severely ill, and theneverything just came to a crash on the evening and we end up in an ambulance that didn’t have the right equipment and subsequently heended up brain dead”. When specifically asked how his child became brain dead, Mr.

Stephan said, “Unfortunately the ambulance thatended up taking our son off our hands after he was getting CPR for a little while while [sic] we were in transit did not have the properequipment. And so he went for over eight minutes without any oxygen whatsoever which is what was found to be the cause of braindeath”. [54] This interview demonstrates that Mr. Stephan trivializes Ezekiel’s condition and still does not accept that there was somethinghe ought to have done differently.

The interview certainly does not amount to him accepting responsibility for his own failure; it is adeflection of the responsibility from him to others. [55] Mr. Stephan does not accept that he has criminally failed to meet an objective community standard: taking a child to a doctorin these circumstances. In effect he simply does not accept that an objective community standard requires him to act. [56] I conclude that Mr.

Stephan’s post-conviction conduct, namely, his statement in court at the sentencing hearing andparticularly his video interview, demonstrates a complete lack of remorse for his own inaction and an entrenchment of his refusal to seekmedical attention when it becomes necessary for those in his care. As stated in R v Ambrose, (2000), 2000 ABCA 264 , 271 AR164, this is relevant in sentencing because it demonstrates a higher degree of moral culpability during the commission of the offence:

80 In this regard, expressions of lack of remorse, whether through actions or words, may be evidence of a higher degree of moralblameworthiness at the time of commission of the offence. In the same way that stealing a million dollars is more blameworthy thanstealing one dollar, so too a hardened attitude towards one's victims is more blameworthy than a temporary lapse in judgment.

In otherwords, lack of remorse as reflected in actions or words may simply be further evidence of the offender's continued indifference to theplight of his or her victims at the time of committing the criminal offence. … 81 The display of lack of remorse may also follow the offence. Take for example the offender who assaults a person because he or she isgay or black, and then boasts about this after the fact to friends. Or the offender who, after committing one assault, then proceeds toassault a new victim the next day or the next month.

These actions compellingly demonstrate lack of remorse in respect of the firstoffence as reflected in the continuing indifference to the victims. … [57] Mr.

Stephan loved his son but to this day refuses to accept that his actions played any role in creating a risk to Ezekiel’s death.His lack of remorse for his own involvement “may be taken into account as a potentially aggravating factor on sentencing and may inturn influence a sentencing judge’s assessment of what an ‘appropriate sentence’ might be”: para 85, Ambrose. [58] While these comments in Ambrose were made by Fraser J in a dissenting opinion, Cote J, writing for the majority, stated thathe agreed with Fraser J’s comments on the role of lack of remorse in sentencing: para 4. [59] I conclude that while Ms.

Stephan was blinded to the fact that her conduct was putting Ezekiel’s life at risk, Mr. Stephan wasmore wilfully blind. Each person must be accountable for her or his own failure, but overall Mr. Stephan’s moral culpability for thisoffence is greater than that of Ms. Stephan. [60] Ms. Stephan is recognizing that there are minimal standards of care and that she must follow them. Mr. Stephan is not.Greater deterrence of Mr. Stephan is required.

Analysis and Decision [61] In addition to proportionality, other primary objectives to keep in mind here in determining a fit and just sentence aredenunciation and deterrence. Society has every right to expect that the minimal required standards of care will be followed, particularlywhere the risk relates to the life of a vulnerable young child. When that standard is breached the community condemns the conduct.Deterrence of the Stephans and others who may be blinded or worse by their own choices or approaches is necessary for the maintenanceof a just, peaceful, and safe society.

The objective is to discourage such conduct, or perhaps better put, to encourage compliance with theexpected standard of care. [62] In my view, a sentence proportionate to the gravity of this offence and the degree of responsibility of these offenders requiresthe imposition of a jail sentence, but not the same jail sentence for both Mr. and Ms. Stephan. A lengthy period of incarceration is notrequired. Certainly a penitentiary sentence is not required. [63] In the result I find that a fit and just sentence for Ms.

Stephan is 3 months which I order that she will serve in the communityby way of a conditional sentence under strict house arrest, plus 2 years’ probation. [64] I find that a fit and just sentence for Mr. Stephan is 4 months jail plus 2 years’ probation. [65] I am satisfied that Ms. Stephan’s service of her sentence in the community would not endanger the safety of the communityand would be consistent with the fundamental purpose and principles of sentencing.

As in R v M(L), 2012 NSSC 250 at para 53, “This isnot a case where the parent has been proven to have directly caused the injury, to have deliberately delayed seeking medical treatment forthe child, or to have mistreated or neglected the child over an extended time period. Rather, all that has been proven is that the parentsfailed to provide the necessaries of life...”. [66] While Mr.

Stephan does not endanger the safety of the broader community, because of his increased moral blameworthinessand the greater need for deterrence I find that having him serve his sentence within the community would not be consistent with thepurpose and principles of sentencing. The following comments from Ambrose are appropriate here: 86 … Conditional sentences are rooted in large

part in restorative justice sentencing objectives. Central to these objectives is the need foran offender to take responsibility for his or her actions: R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 (S.C.C.). Forexample, s.718(

f) of the Code provides that one of the objectives of sentencing is "to promote a sense of responsibility in offenders, andacknowledgment of the harm done to victims and to the community." In fact, a condition precedent to the imposition of a conditionalsentence is the requirement that serving the sentence in the community be consistent with the principles of sentencing set out in ss.718 to718.2. 87 This leads to the question whether and when it is appropriate to impose a conditional sentence on an offender who fails to acceptresponsibility for the crime for which the offender has been convicted.

In particular, in what way can promotion of a sense ofresponsibility, or reparation for harm done to victims, or rehabilitation — all restorative justice objectives — be achieved with anoffender who fails to demonstrate regret or repentance following conviction? … The absence of any indication of willingness to acceptresponsibility arguably militates against a conditional sentence. One of the rationales for a conditional sentence is that the offender willuse his or her time in the community constructively for rehabilitative and restorative purposes.

But if the offender is not motivatedbecause he or she will not acknowledge the existence of any problem, much less contrition about what he or she has done, then alegitimate question arises about the likelihood of the offender's being committed to, or serious about, taking advantage of therehabilitative options available in the community. [67] The conditions of Ms. Stephan’s conditional sentence order are that she shall:

1. keep the peace and be of good behaviour. 2. appear before the court when required to do so by the court. 3. report to a supervisor: (

a) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and (

b) thereafter, when required by the supervisor and in the manner directed by the supervisor. 4. remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor. 5. notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment for the purpose of this order. 6. reside in the province of Alberta at a place as approved by the supervisor in writing and any change in address must be approved in advance by the Court or the supervisor. 7. for the entire term of the conditional sentence order, Ms.

Stephan shall remain in her residence or on its grounds 24 hours a day, seven days a week, except where specifically permitted otherwise by the term of this conditional sentence order. 8. Ms. Stephan may be absent from her residence during the period of house arrest for the following reasons: (

a) to attend at any scheduled medical, dental or health related appointments provided that the offender advise the supervisor in advance of the time and place of the appointment and provided that the offender will travel from her residence directly to the appointment and return directly to her residence from the appointment; (

b) to attend any hospital, health centre or clinic for any medical, dental or other health related emergencies for the offender or her family and the offender shall forthwith thereafter advise the supervisor in writing of such attendance, its location and its time; (

c) to attend at such assessments, counselling or treatment as ordered by the Court or directed by the supervisor; (

d) to shop for groceries, clothing and the necessities of life two days per week during the hours of 9am and 2pm to a maximum of five hours provided you advise your supervisor forthwith thereafter of such attendance, its location and its time; (

e) to attend to vote in a municipal, provincial or federal election provided that Ms. Stephan shall travel directly to and from the polling station and shall advise the supervisor forthwith thereafter of such attendance, its location and its time; (

f) to attend any religious service one day per week, provided Ms. Stephan advises the supervisor in advance in writing of the time and place of attendance of the religious service and provided the offender travels directly to and from the service; (

g) to attend Court as required and go directly to and from the courthouse and advise the supervisor forthwith thereafter of the date, time and place of such attendance;

(

h) to report to the supervisor; (

i) to attend scheduled appointments with legal counsel, provided Ms. Stephan shall travel directly from her residence to such scheduled appointment and return therefrom directly to her residence; and (

j) any other exception approved in writing in advance by the supervisor . 9. During the period of house arrest, Ms. Stephan shall not have more than two non-residents at Ms. Stephan’s residence, (not including family) present at any one time in the residence. No visitors are allowed within Ms. Stephan’s residence between the hours of 10pm and 8am without prior written approval of Ms. Stephan’s supervisor. 10. During the period of house arrest, Ms. Stephan shall present herself at the door of her residence for any supervisor or peace officer who attends for purposes of confirming Ms.

Stephan’s compliance with the house arrest provisions of this conditional sentence order. 11. During the period of house arrest, Ms. Stephan shall answer all telephone calls during the times she is required to be in her residence so there is confirmation of compliance with house arrest conditions. 12. In the event Ms. Stephan does not have a landline telephone, then Ms. Stephan must take steps forthwith to obtain and maintain a land line telephone during the currency of this conditional sentence order. Once the number is obtained, Ms. Stephan must immediately advise the supervisor of the telephone number and Ms.

Stephan must answer all calls as described aforesaid. The telephone must not be a cellular telephone and the telephone number must not utilize a call transfer service. 13. Ms. Stephan shall attend such assessments, counselling or treatment as ordered by the Court or directed by the supervisor, which may include grief counselling and such other counselling as may be directed by the supervisor. 14. Ms. Stephan shall sign any release or waiver of information as directed by the supervisor to provide access to medical, counselling or treatment information required by the supervisor. 15. Ms.

Stephan shall provide proof in writing to the supervisor that any assessment, treatment or counselling the offender has been directed to attend and complete has been completed. 16. At all times, Ms. Stephan shall carry a copy of this conditional sentence order, including a copy of any amendments, and show a copy of this conditional sentence order to any peace officer who demands to see it. 17. Ms.

Stephan shall post or cause to be posted an unedited accurate copy of this decision to the following website address: https://www.facebook.com/PrayersForEzekiel , and any website or social media sites that she is personally affiliated with. [ 68 ] The conditions of the probation orders for each of Mr. Stephan and Ms.

Stephan are: 1. keep the peace and be of good behaviour; 2. appear before the court when required to do so by the court; 3. notify the court or the probation officer in advance of any change of name or address, and, notify the Court or probation officer of any change in employment or occupation; 4. report to a probation officer within two working days of being released from custody and thereafter, as and when directed by

the probation officer; 5. remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the probation officer; 6. provide for the support or care of dependants by:

a) attending with all the children before a duly qualified and registered medical doctor in the area of family medicine by December 15 of each year;

b) taking all three children to a public health nurse every three months; and

c) providing the medical doctor and public health nurse with a copy of this sentencing decision. 7. with respect to Ms. Stephan, perform 240 hours of community service to be performed by March 1 st , 2018. 8. with respect to Mr.

Stephan, perform 240 hours of community service to be performed by February 1 st , 2018. 9. attend for such assessment and counselling as may be directed by your probation officer which may include, but is not limited to the following: grief counselling and such other counselling as may be directed by the supervisor. 10. reside in the province of Alberta at a place as approved by the probation officer in writing and any change in address must be approved in advance by the Court or the probation officer. Final Decision [ 69 ] Mr. Stephan, Ms.

Stephan, please stand. [ 70 ] In our society children are entrusted to their parents. Most parents fulfill this critical role most of the time, maybe almost all the time, with love, care, and attention. Sometimes parents fail in that role. It is only when that failure rises to a level of morally blameworthy conduct that society, through law, juries, and courts, steps in. By your conduct you have affected many people - emergency responders, physicians, justice system participants, the community. Your conduct has left an un-erasable and chilling imprint on all of us.

I can only hope that learning and trust can somehow emerge from the tragedy of Ezekiel’s death. [ 71 ] Ms. Stephan I sentence you to a term of imprisonment of three months to be served by way of a conditional sentence order followed by two years’ probation. Mr. Stephan I sentence you to four months’ imprisonment followed by two years’ probation. [ 72 ] There will be a Victim Fine Surcharge for each of you in the sum of $200.00, or in default of payment two days imprisonment which may be served concurrently. Ms. Stephan you are given one year in which to pay the fine.

Heard on the 23 rd and 24 th day of June, 2016 Dated at Lethbridge, Alberta th is 24 th 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