Sometimes, as Charles Dickens wrote, “The law is an ass – an idiot.”
The acquittal of David and Collet Stephan, who were found not guilty of failing to provide the “necessaries of life” to their 19-month-old son, Ezekiel, seems like a striking example.
The basic elements of the case have been well reported. Ezekiel fell ill with what initially looked like croup but grew much worse, to meningitis. His parents, believers in so-called alternative medicine, decided to treat Ezekiel with garlic and horseradish smoothies, and consult a naturopath rather than a medical doctor.
Over two weeks, his condition waxed and waned. But in March, 2012, when the boy’s health deteriorated to the point where he stopped breathing, the family called an ambulance and then blamed paramedics for failing to save his life.
The polarizing case has been dragging on since Ezekiel’s death. There was a jury trial, a conviction, an appeal, a re-trial ordered and then a trial by judge alone.
That last trial was overseen by Justice Terry Clackson of the Court of Queen’s Bench of Alberta. And in his 34-page ruling issued last week, he found that while most parents with a child as sick as Ezekiel would have thought it prudent to seek medical help, “section 215 of the Criminal Code does not impose a duty to seek medical attention for every sick child. For that duty to arise there must be a risk to the child.”
In Justice Clackson’s view, the case revolved around four issues: whether Ezekiel had bacterial or viral meningitis; whether his death was the result of meningitis or lack of oxygen to the brain; whether the Stephans knew the boy had meningitis; and whether, knowing that, they ought to have sought medical intervention.
“I have concluded that Ezekiel did have meningitis. The Stephans did not know that Ezekiel had meningitis but were alert to the possibility and monitoring for symptoms. The meningitis Ezekiel had was viral and he did not die from meningitis but from the lack of oxygen. Therefore, I have concluded that the Stephans are not guilty of the charge,” the judge wrote.
Hold on a second.
The central question is not what ailed Ezekiel or whether or not he could have survived, but whether he was given a fighting chance. He wasn’t.
David Stephan has argued throughout this saga that the case was about “parental rights” and “medical choice.”
Actually, it’s about parental responsibility. Surely, the obligation to seek medical care kicks in before a child stops breathing multiple times and goes rigid, a telltale sign of life-threatening meningitis.
Unfortunately, the judge in this case allowed himself to be bamboozled by a manure pile of irrelevant arguments.
Let’s take the cause of death.
An autopsy conducted by the medical examiner, Bamidele Adeagbo, found that Ezekiel had bacterial meningitis; despite the judicial ruling criticizing his “garbled enunciation" and grammatical flubs in the courtroom, and calling him “arrogant, petulant and argumentative,” Dr. Adeagbo’s conclusion itself doesn’t change. A veteran pediatric intensivist who treated the boy arrived at the same result, based on symptoms.
But the defence brought in an expert witness – one who the Alberta government had previously called “obstructionist, confrontational and disrespectful” – who, after reading the medical examiner’s report and listening to the boy’s breathing on a recording of a 911 call, concluded that he stopped breathing because of complications from croup.
The evidence showed the Stephans were told by a nurse that Ezekiel likely had meningitis, then did internet searches of the symptoms of meningitis and then purchased a product from a naturopath for treatment of possible cases of meningitis.
Yet, Justice Clackson, who has his own eyebrow-raising judicial history on sexual-assault cases, concluded they didn’t know the boy had meningitis, saying the Stephans’ statements felt like “false confessions."
Really?
Much was made of the fact that the ambulance that picked up the boy was not equipped with child-sized equipment, so he may have been deprived of oxygen. That is a travesty, but it doesn’t change the fact that Ezekiel was deathly ill before real medical help was sought.
David and Collet Stephan have spent years blaming everyone else for their son’s death – paramedics, physicians, the courts, the media, Big Pharma – but they have never taken an iota of responsibility. After the acquittal, Mr. Stephan even had the gall to speak in biblical terms of “those who have trespassed against us.”
It’s probably too late for justice for Ezekiel. But maybe it’s not too late for the justice system to save a bit of face by sending a message that, yes, parents have rights – but they also have responsibilities.
The Crown would be wrong to not appeal this appalling verdict.
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André Picard