Ezekiel was 18months old when he fell ill. His daycare contacted his parents. His symptoms included fever, lack of appetite and trouble breathing. Both parents were concerned. Neither sought medical attention for their child. Instead they contacted a family friend, a nurse, by phone. They had her listen to Ezekiel’s breathing over the phone and the friend suggested that the child might have croup. Over the next several days Ezekiel got much worse. No medical attention was sought. The parents ‘treated’ Ezekiel with a number of naturopathic remedies. The nurse friend suggested that Ezekiel had meningitis and recommended that a doctor be consulted. The parents did no such thing. Instead the mother took to the internet and concluded that her child had viral meningitis not the more serious bacterial meningitis. A receptionist at the naturopathic clinic told the parents to bring their child to a doctor. The parents did no such thing. Instead their child stopped breathing at home about a week after his first symptoms appeared. It was only after Ezekiel had been revived by his father that his parents called 911. He was resuscitated again by paramedics but never regained consciousness and died 5 days later.

Both parents were charged with failing to provide the necessaries of life. A jury found them guilty. They appealed to the Alberta Court of Appeal. The majority of the appellate court dismissed the appeal: 2017 ABCA 380. Justice O’Ferrall, however dissented and would have granted the appeal. A unanimous Supreme Court of Canada agreed with Justice O’Ferrall and ordered a new trial: 2018 SCC 21.

On appeal the Stephans argued that the trial judge erred:

by failing to limit the expert evidence called by the Crown
by limiting the defence expert evidence
by failing to qualify the accused father as an expert
in rejecting the accuseds’ 11b motion; and finally
in a number of ways in the instructions to the jury

Only one gained any traction with Justice O’Ferrell and ultimately the Supreme Court; this was with respect to the trial judge’s charge to the jury.

Justice O’Ferrell concluded that:

the jury charge was confusing, misleading, and deficient in describing a key element of the offence. Furthermore, the trial judge did not properly instruct the jury on the fault element or the mens rea of the offence. The cumulative effect of the jury instructions may have been an unsafe or suspect verdict.

(…)

The instructions tended to give the impression this was a strict liability offence. That is, if a parent does not take his or her sick child to the doctor and the child dies, the parent is guilty of failing to provide the necessaries of life. Even in strict liability regulatory offences, due diligence is a consideration. Section 215 has been interpreted to require objective fault, but such fault must be assessed in terms of the reasonableness of the accused’s conduct. @213-214.

The Supreme Court held that the “learned trial judge conflated the actus reus and mens rea of the offence and did not sufficiently explain the concept of marked departure in a way that the jury could understand and apply it.” @2.

Of note, defence had no objection to the charge at the time of trial (ABCA @84). Though certainly not determinative the absence of such an objection is sometimes a helpful way for appellate courts to get the pulse of the charge in the context of the trial, but, as this case illustrates, is not always determinative.