Judge won’t dismiss charges against Alberta couple charged in son’s meningitis death

An Alberta judge rejected a defence application on Thursday to dismiss the case against a couple charged in the meningitis death of their toddler.

David and Collet Stephan are on trial for a second time after allegedly failing to provide the necessaries of life to their 18-month-old son Ezekiel in 2012.

They treated him with alternative therapies before eventually calling 911, but the child died in hospital of bacterial meningitis.

The couple was originally found guilty by a jury. The Supreme Court ordered a new trial last year.

READ MORE: Supreme Court orders new trial for David and Collet Stephan

After the Crown concluded its case Thursday, defence lawyer Jason Demers applied to have the charges dismissed.

Demers said the Crown failed to prove that Ezekiel would have survived had he received earlier medical attention.

“There is no evidence before the court … and I would invite the court to dismiss the charges against the Stephans,” he said.

He reminded the court of the testimony of Dr. Shauna Burkholder, an expert on pediatric medicine who treated Ezekiel after he arrived at the Alberta Children’s Hospital in Calgary.

Burkholder said the child’s brain scan was one of the “most devastating” she had ever seen.

But she also said it was possible that someone with meningitis could still die after receiving treatment in hospital, said Demers.

Justice Terry Clackson noted that Burkholder had also testified that 100 per cent of people who contract bacterial meningitis and don’t seek medical help end up dying. Those who get help have a 95 per cent survival rate.

READ MORE: Lack of oxygen didn’t cause Ezekiel Stephan’s death — medical examiner

The judge said a jury could infer from the evidence that Ezekiel’s life would have been saved had he been taken to hospital 48 hours earlier.

“Therefore, the application to dismiss the indictments is dismissed,” Clackson said.

In response to the ruling, David said: “We didn’t know what to expect going into it and so we tried not to keep our hopes up. I know my wife wants this behind her. I want it behind me as well, but if it has to roll its course and go to full fruition on it before this is dismissed then so be it.”

Amid the judge’s denial of their application, they feel satisfied with him at the head of this retrial.

“Our feelings of the judge are really good. We’ve had a very fair judge since June 3, who took over the trial proper and he has acted very fairly to both the Crown and to the defence, and that is new to us. In all the proceedings we’ve had since 2013, we’ve never seen that,” said David.

With the case adjourned until Monday, the defence is looking forward to three days of preparation. They have five scheduled witnesses, including David and Collet Stephan, David’s father, a record keeper from a clinic that previously attended to their son and an ambulance attendant from Glenwood.

“We’re very confident moving forward here — not arrogant, but confident — just based on the evidence that’s going to come forward and based on what’s taken place with the evident thus far where we’ve been able to dismantle the Crown’s witnesses because we now have a lot more evidence available to us now than we did in 2016,” added David.

The case is adjourned until Monday when the defence will have an opportunity to make an opening statement.

—With files from Chris Chacon, Global News