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CRIMINAL CODE OFFENCES - Offences against person and reputation - Duties tending to preservation of life - Failure to provide necessaries of life

Thursday, November 30, 2017 @ 8:30 AM  

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Appeal by the accused, Collet and David Stephan, from convictions for failure to provide the necessaries of life. The accused's son was born in August 2010. In February 2012, the child exhibited signs of illness while at pre-school. The accused telephoned a family friend, a nurse, who listened to the child's breathing over the phone and suggested croup was the issue. The accused treated the child with fresh air, humidity, fluids and natural supplements. The child's fever abated but he still exhibited low appetite and energy, with breathing trouble. Within one week, the accused believed the child was well enough to return to pre-school. Over the next week, the child's condition worsened. The accused's nurse friend examined the child and suggested they seek medical attention due to suspected meningitis. The accused instead researched meningitis online, conducted physical tests, and self-diagnosed viral meningitis. They purchased a homeopathic remedy from a naturopathic clinic. Later that evening, the child stopped breathing. Despite emergency medical care, the child died due to complications from bacterial meningitis. The accused were convicted by a judge sitting with a jury. The trial judge rejected an application for a stay of proceedings based upon a violation of the accused's s. 11(b) Charter rights. The evidence at trial included extensive expert medical evidence explaining the processes that led to the child's death. The accused appealed.

HELD: Appeal dismissed. The trial judge did not err in failing to limit the Crown's expert medical evidence, thereby creating a cumulative prejudicial effect. The trial judge appropriately exercised gatekeeper discretion in admitting the expert evidence regarding the different facets of the case. There was no indication during the trial that the jury did not understand the evidence. There was no error in restricting the qualification or scope of opinion evidence proffered by defence expert or lay witnesses on the child's state of health, including that of the father of the accused, David Stephan. The charge to the jury was not inadequate in summarizing the evidence, stating the elements of the offence, or articulating the principles related to the burden and standard of proof. No trial unfairness was established. In addition, the trial judge did not err in finding that no s. 11(b) Charter breach arose from the 38.5-month delay between the charge and end of trial given the ten months of delay attributable to the defence. The delay was below the presumptive ceiling and was not unreasonable given the failure by the defence to proceed reasonably and expeditiously with certain pre-trial proceedings.

R. v. Stephan, [2017] A.J. No. 1203, Alberta Court of Appeal, J. Watson, J.D.B. McDonald and B.K. O'Ferrall JJ.A., November 15, 2017. Digest No. TLD-November272017008