Parents in toddler death hope to appeal Alberta ruling on third trial to top court

David and Collet Stephan leave for a break during their appeals trial in Calgary, Alta., Thursday, March 9, 2017.THE CANADIAN PRESS/Todd Korol

LETHBRIDGE — A toddler's parents who have faced two trials related to his death say they want to take an Appeal Court order for a third trial to the Supreme Court of Canada.

David and Collet Stephan appeared Monday via video in a courtroom in Lethbridge, Alta.

"We are in the process of filing an application for leave to the Supreme Court of Canada in this matter," said lawyer Shawn Buckley, who is representing David Stephan.

The Stephans were accused in their earlier trials of not seeking medical attention sooner.

They testified that they were treating their 18-month-old son with natural remedies before he died in 2012 for what they thought was croup.

A jury convicted them in 2016 of failing to provide the necessaries of life. But the Supreme Court overturned that verdict and ordered a second trial. A judge hearing the case without a jury found them not guilty in 2019.

Last month, the Alberta Court of Appeal granted a request by the Crown to overturn the acquittal and ordered another trial.

On Monday, Buckley said Jason Demers, who is representing Collet Stephan, is filing an application to the Appeal Court asking for a stay of proceedings, while a request to appeal a third trial to Canada's highest court proceeds.

"We've drafted the application. The affidavit is completed. The clients have signed it. It's just being submitted to the Court of Appeal," said Demers.

The matter was set over until June 14.

"That will give us the time to make sure everything's filed and complete and maybe we'll have heard from the Court of Appeal by that time in respect to the stay," Demers said.

Over the course of their trials, the Stephans testified that they thought Ezekiel had croup, an upper airway infection, and treated him with natural remedies, including smoothies with tinctures of garlic, onion and horseradish.

They said he appeared to be recovering at times and they saw no reason to take him to hospital, despite his having a fever and lacking energy.

They called an ambulance when the boy stopped breathing.

In acquitting them at their second trial, Justice Terry Clackson accepted the testimony of a defence expert, who said the boy died of a lack of oxygen, not bacterial meningitis as reported by Dr. Bamidele Adeagbo, the original medical examiner.

Clackson noted in his decision that Adeagbo, who was born in Nigeria, spoke with an accent and was difficult to understand and called him out for his "body language and physical antics."

In ordering a third trial, the Appeal Court judges said the medical examiner's speech and body language were irrelevant, and the judge's comments gave rise to a reasonable apprehension of bias.

After Clackson's verdict, dozens of medical and legal experts filed a complaint against him with the Canadian Judicial Council alleging the comments he made about Adeagbo could be perceived as racist.

This report by The Canadian Press was first published April 26, 2021.