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The Crown appeals Justice Clackson’s brain dead ruling acquitting David and Collet Stephan

Good news in the case of Ezekiel Stephan! The Crown has decided to appeal the acquittal of David and Collet Stephan.

Things have been a bit crazy this week in that I have a lot of very early morning meetings, way more so than usual. (The joy of surgery!) This both cuts into my evening blogging time, as I need to go to bed early, and into my early morning time (when I frequently finish posts that I couldn’t finish the night before), as I’m getting up at 4:30 or 5 AM and heading to work by 6 AM. Something did happen, though, that i really have to mention, even if it’s a shorter than usual post (by my standards). Remember the tragic case of Ezekiel Stephan? He was a toddler who died a horrible death of bacterial meningitis in 2012 because his parents David and Collet Stephan chose to treat his serious illness with supplements and “natural” treatments. Ultimately, the Crown prosecuted the parents, who were convicted of failing to provide the necessities of life to Ezekiel in 2016. Unfortunately, due to a technicality, the conviction was overturned by the Supreme Court of Canada and the Stephans were granted a new trial, which occurred earlier this year. You’ll recall, too, that both parents are antivaccine and that David Stephan is the scion of the founder of Truehope Nutritional Support, a major supplement company in Canada, that makes, among other things, a product called EMPowerplus. Indeed, Truehope supplements were a major part of the Stephans’ attempted treatment of Ezekiel.

Unfortunately, the second trial, which was a trial without a jury overseen by Justice Terry Clackson, ended in a massive miscarriage of justice in which Justice Clackson found the Stephans not guilty based on some truly head-scratchingly cringeworthy reasoning (if you can call it that), along with an attack in the ruling against the Crown’s main expert witness that was undeniably tinged with racism, to the point where a formal complaint has been lodged. Truly, you have to read the actual judgment to see just how ridiculous Justice Clackson’s “reasoning” is. For instance, he concluded based on dubious testimony of the defendants’ expert witness that Ezekiel didn’t have bacterial meningitis at all, but rather had viral meningitis, never mind the puss on the brain and the empyema, all consistent with haemophilus influenza type B. He also concluded that the child died of “lack of oxygen,” which is, of course, what every single one of us will die of one day, as lack of oxygen to the brain is the common final mechanism of death for everyone, whatever the cause. After all, what led to Ezekiel’s lack of oxygen to the brain? His untreated bacterial meningitis! Justice Clackson’s conclusion was akin to concluding that that gunshot wound to the heart didn’t kill the shooting victim, but rather the lack of oxygen to the brain did.

Given how badly reasoned and downright racist Justice Clackson’s decision was, I was happy to learn yesterday that the Crown is going to appeal:

Alberta prosecutors want the province’s top court to find two parents guilty of criminal charges connected to the 2012 death of their toddler despite a judge acquitting the pair last month. David and Collet Stephan were tried this summer on charges of failing to provide the necessaries of life to their 19-month-old son Ezekiel, who was treated with natural remedies instead of being taken to a doctor. Now, the Crown has filed an appeal, alleging, among other grounds, that the trial judge displayed bias in his decision for comments made about the accent of an African-born doctor — who was a witness for the prosecution — which prompted a complaint to the Canadian Judicial Council. David Stephan says he has no comment at this time but will be publishing a Facebook post later today to address the day’s development.

The reasons:

Four grounds are listed in the Crown’s notice of appeal, including that the judge erred “in establishing a medical standard unknown to law.” The document also suggests the judge’s comments in the trial “gave rise to a reasonable apprehension of bias” and that there was further error in Clackson’s assessment of credibility when he took into account “irrelevant considerations.” Clackson came under fire for comments he made about Crown witness Dr. Bamidele Adeagbo, a forensic pathologist who speaks with a thick Nigerian accent.

The four grounds were listed in this story:

  • Establishing a medical standard unknown to law
  • Making comments in the trail that gave rise to a reasonable apprehension of bias
  • Taking into account irrelevant considerations
  • Placing the onus on the Crown to prove that the Stephans’ son Ezekiel would have been saved had he been taken to a doctor

All of these are definitely more than reasonable objections.

I checked out David Stephan’s Facebook page, and, contrary to his promise, he really hasn’t posted anything yet, other than a promise to post something and a repost of a video of an interview that he and his wife did with antivaxer Del Bigtree:

Not surprisingly, nearly all the comments are overwhelmingly positive and supportive or outraged against the government, the courts, and the Crown.

I’m actually pleasantly surprised that the Crown decided to appeal the decision. I had expected that likely the prosecutors would have decided that, after two trials, seven years, and all the public outcry, pursuing an appeal would be pointless. I am happy that my prediction turned out to be incorrect.

By Orac

Orac is the nom de blog of a humble surgeon/scientist who has an ego just big enough to delude himself that someone, somewhere might actually give a rodent's posterior about his copious verbal meanderings, but just barely small enough to admit to himself that few probably will. That surgeon is otherwise known as David Gorski.

That this particular surgeon has chosen his nom de blog based on a rather cranky and arrogant computer shaped like a clear box of blinking lights that he originally encountered when he became a fan of a 35 year old British SF television show whose special effects were renowned for their BBC/Doctor Who-style low budget look, but whose stories nonetheless resulted in some of the best, most innovative science fiction ever televised, should tell you nearly all that you need to know about Orac. (That, and the length of the preceding sentence.)

DISCLAIMER:: The various written meanderings here are the opinions of Orac and Orac alone, written on his own time. They should never be construed as representing the opinions of any other person or entity, especially Orac's cancer center, department of surgery, medical school, or university. Also note that Orac is nonpartisan; he is more than willing to criticize the statements of anyone, regardless of of political leanings, if that anyone advocates pseudoscience or quackery. Finally, medical commentary is not to be construed in any way as medical advice.

To contact Orac: [email protected]

36 replies on “The Crown appeals Justice Clackson’s brain dead ruling acquitting David and Collet Stephan”

Good news as justice may yet be served against these horribly neglectful parents who let their child needlessly suffer and die.

And IMO more importantly, will set a precedent and send a message about the obligation of care parents owe to their children.

Nothing will bring Ezekiel back, but if this can help prevent more children from suffering and/or dying due to neglect, it’s worth doing.

There is other good precedent in Canada.

Although the Stephan case was the first in recent history, there have been three other cases prosecuted in Alberta. In two the charges were failure to provide the necessaries of life and criminal negligence causing death. In both of those case convictions were obtained on both charges, though under Canadian law (“Kienapple principle” named for the accused in the case), if multiple convictions arise from prosecution of the same crime, only the more serious conviction “stands.” In one case the sentence has already be served and in the other an appeal has been filed. In a third case the parents were convicted of murder for failure to treat their son’s diabetes. They are serving life sentences.

One of my biggest concerns with Clackson’s ruling is that it appears to me to nullify a section of the law, as I mentioned in another comment, nearby.

Not an expert on Canadian law, but I believe they consider an appeal an extension of the same trial, not a new trial, so he isn’t being tried twice for the same thing.

@Len – The appeal and re-trial will only go ahead if the high court agrees that the trial judge made an error in law, facts or it was a miscarriage of justice. The third, miscarriage of justice, is a much rarer and harder to justify for an appeal. Here is a link to the citizens guide: https://www.courtofappealbc.ca/appeal-conviction-guidebook/step-1.2-reasons-for-appealing-your-conviction Ignore that the link goes to a British Columbia court page, as all of the provinces except Quebec follow the same jurisprudence. If the appeal was rejected, and the prosecution tried to lay the same or very similar criminal charges again, that would be double jeopardy. I do not know if the province could try and bring a civil case against them if they are acquitted again or the appeal is rejected.

The appear hearing will go ahead unless the Crown decides to drop it. The appeal court does not normally hear any evidence but looks at matters of law and what is on the record from the trial that prompted the appeal. Some appeals at the provincial level are only heard if leave is granted, but that only seems to be in relatively minor matters. The Court can certainly dismiss the appeal, but that happens after the appeal hearing. The hearing is a pretty short affair where the lawyers for each side make time-limited oral presentation to the panel of judges who then ask them questions they would rather not have to answer. I was not favorably impressed with the performance of any of the lawyers in the original Stephan appeal in terms of their ability to think on their feet.
The Court of Appeal can alter a verdict or sentence without returning the matter to the court below. Sometimes it sends the case back to the court below for a change in sentence without ordering a new trial. An appellant contesting the length of a sentence might succeed in getting the sentence reduced but also risks having the sentence increased. If a new trial is ordered, then it all starts over from square one.

An appeal can be made to the Supreme Court of Canada as the next step after an unsuccessful appeal at any appellate court below. In a criminal case, there is automatic right to be heard by the SCC if there was a dissenting finding at the lower court of appeal. Otherwise, an application for leave to appeal must be made. The SCC dismisses the vast majority of applications for leave (and never says why).

Here’s hoping that the Stephans get what they deserve at the re-trial, and that Justice Clackson takes the hint and retires. We can do with a few less dumb-asses.

While I find the original ruling appalling, “theoretically” in the U.S. the prosecution can’t appeal a case. The basis is “theoretically” to protect citizens against the powers of government. Otherwise, government with unlimited resources could literally hound someone. I say “theoretically” because due to our separate Federal and State laws and courts, we still prosecute people found not guilty. While in Civil Rights cases this has allowed the Federal government to convict clearly guilty people who were found not guilty by a local jury, at the same time, if one follows what is happening, the few cases that got what they deserved has just added to the overreach and breaching of our liberties and protections by our government.

We are, perhaps, the only nation that “theoretically” tries to limits governments legal powers, though not in reality, so, appealing this case is morally right; but I question whether it is worth giving government so much power.

If a justice screwed up and made an error that benefited the crown, wouldn’t it be fair to appeal? That is what they are appealing, perceived, or real, errors made by the trial judge. It keeps things fair for everyone involved. You are correct that the state has far more resources then a private citizen, but it still has to prove an error by the judge to be able to get a re-trial. Simply disagreeing with the verdict is not grounds for a successful appeal, by either side.

@ Anonymous Pseudonym

You obviously miss the point, Once government has a power it is easy to abuse as has been shown over and over again. Yep, there are cases that clearly were wrongly decided; but, though trained as an epidemiologist I have devoted quite a bit of time reading history of criminal justice, etc. and prosecutors/police can always find something. And, if they don’t, they just try the person on another crime. Having lived in several different nations, I’ve never seen so many charges leveled against an individual as in U.S., making it difficult, if not impossible, for a defense to counter all of them, and allowing a conviction for something. In the U.S. we have 5% of world’s population and almost 25% of imprisoned. A conservative estimate is that approximately 100,000 a totally innocent, others convicted of minor crimes given draconian sentences. There is even something called an Alford Plea. When evidence clearly indicates an innocent person, the prosecution threatens to retry the case. The person, having already spent years in prison, not sure how a jury will decide, takes an Alford Plea, essentially, stating that, though innocent, the evidence at the time warranted a conviction, which, of course, regardless of the type of evidence, e.g., false labs, withholding of exculpatory evidence, etc., protects the prosecution and police from criminal charges and lawsuits. One more example of the overreach of government. So, yep, there are overwhelmingly obvious cases where a jury or judge was wrong; but, given the history of our criminal justice systems, giving them one more power just isn’t wise.

It isn’t entirely clear to me because of the language he used in his ruling, but it appears that Clackson essentially nullified the whole medical care requirement as a necessity of life under the applicable law. If my interpretation is correct, then I would say that it is absolutely essential that the Crown appeal.

“The goverment” in the usual sense, really isn’t a player in this sort of thing unless the government is actually named in the case, one way or the other. Of course the courts, including the prosecutors, are paid for by the government(s), but the courts do not do the governments’ bidding. Supporters of the Stephans try to make out that it is a government vendetta and David’s brother has suggested that the original prosecution was because of some successful action in which David was involved that riled the government. It is the usual load of yappage-without-evidence rubbish from such types.

You are correct that in the US the prosecution would not be able to appeal a not-guilty verdict. But that does not mean that civil remedies could not be pursued. (In cases like this one there is the question of who would have standing to pursue a civil remedy, but that is a separate issue.) For example, OJ was acquitted of murdering his girlfriend, but her family won a civil judgement against him. This is entirely possible because standards of proof differ: in a civil proceeding preponderance of evidence is sufficient, but in a criminal trial guild must be proven beyond all reasonable doubt, and in OJ’s case the LAPD’s attempt to frame him made it impossible for the prosecution to meet the latter standard.

But in this case Canadian law, not US law, applies. I suspect the US is unusual in prohibiting a prosecution appeal of a not-guilty verdict, at least among countries where a nontrivial fraction of criminal trials result in acquittal. (In some countries the question does not arise because more than 99% of criminal trials result in conviction.) I have heard of other cases where a non-US prosecution has appealed a not guilty verdict, e.g., the Amanda Knox case in Italy.

“LAPD’s attempt to frame him”

That’s a bit of revisionist history. From the available evidence it’s clear that OJ actually did it, he even wrote a book “If I did it.” He was the only person with the motive to enact or cause to enact the crime. When the civil trial proceeded minus the political aspect and with a lower, civil standard of proof he lost despite having for more legal resources than the plaintiffs.

I agree that U.S. may be only, or one of very few, nation that prohibits prosecution from appealing verdict. As for civil lawsuits, I have mixed feelings. There have been cases where persons who were innocent lost lawsuits and where guilty; but found not guilty have lost lawsuits. The problem with lawsuits is the evidentiary requirements, requirement only majority of jurors, and no legal requirement guaranteeing legal representation. People have been sued who went bankrupt defending themselves when they did nothing wrong. In fact, Monsanto sues independent farmers for using their genetically modified seeds. Even if totally innocent, farmers, after spending 100s of thousands of dollars on legal fees, give up, lose. In U.S. anyone can sue anyone if they can find a lawyer willing to either take a chance of a contingency fee or draining the clients funds, regardless of if they have a viable case.

An excellent book that shows U.S. legal system, both criminal and civil, is not one of the better systems in world is UC Berkeley Professor Robert Kagan’s “Adverarial Legalism.”

There is an old joke: A single lawyer in a small town starves, two lawyers results in a good living for both. We have probably more lawyers per capita that almost all other nations and according to history books, Colonial Americans would rather sue than eat breakfast. And lawyers end up with most of it.

One last point. Companies have been put out of business by huge losses on lawsuits, in some cases, justified; but in other cases, later evidence showed them totally innocent. Juries can do whatever they want, including ignoring and/or not understanding scientific testimony. An excellent book is Marcia Angell’s (former Editor of New England Journal of Medicine): “Medicine on Trial”.

I watched the video of David Stephan’s interview with Del Bigtree and couldn’t tolerate his voice or demeanor for more than 20 minutes ( and as you know, I can tolerate loads of recorded woo and mendacity):
he says he has 5 children: does that include the late Ezekiel? Photos show him and Collet with 3 young girls. Have they had more children since their child’s death? They have children in their care. They are allowed to care for real, living children?
Just amazing!

And here’s a picture of them from a 2014 blog post with a boy that’s too old to be Ezekiel.

http://helpdavidandcollet.blogspot.com/2014/06/long-overdue-update.html?m=1

Piecing together various pictures I found makes me think the oldest child was a boy of about five when Ezekiel was born or seven in 2012, that their second child is a boy born about a year before Ezekiel (2009); now around 14 and 10, and that all three girls were born after 2012. No picture of a girl seems to be as old as seven.

Thanks, Christine Rose, for those images and stories. So, six children..

Looking over the article about Stephan’s late mother, I see similarities to stories I’ve heard from woo-meisters/ anti-vaxxers who report that a family member was harmed or killed ( in their view) by SBM/ pharma. After an unsuccessful treatment or death, a family member then rejects medical science totally and substitutes woo, nature worship or even religion as cures. This family incorporated all three and even developed a business out of their tragedy that has led to additional tragedy.

Now, not everyone who has a person die/ worsen despite medical care/ psychological care rejects SBM: how are potential woo-meisters/ anti-vaxxers different? What sets them apart from most people? Personality? Distrust of expertise? Lack of critical thinking skills? Unfortunately, there may be many of them

At the original trial there was a court order issued requiring that the other children be see (periodically??) by a physician, but I presume that order was terminated or expired somewhere along the way.

Another (mild) bit of good news: Al Sharpton’s National Action Network has cancelled an upcoming antivax event in Harlem that was to star RFK Jr.

“In 2019 the antivaccine ringleaders targeted the Orthodox Jewish community to flood them with a phony pamphlet, hold teleconferences, robocalls, and town hall meetings with fake information about vaccines,” Peter Hotez, professor of pediatrics at Baylor College of Medicine, told BuzzFeed News by email. “Now they have their sights set on Harlem to ignite an even bigger measles epidemic on the African American community there. Why Rev Sharpton would attack his own community in this way defies common sense or explanation.”

Asked about NAN’s decision to cancel the event on Tuesday, spokesperson Rachel Noerdlinger said: “When it was ascertained that it wasn’t enough of a cross-sector to have a balanced conversation on both sides, it was pulled.”

http://buzzfeednews.com/article/azeenghorayshi/al-sharpton-vaccine-forum-cancelled

Cue the antivax rumor-conspiracy mill. Big Pharma has gotten to Al Sharpton!!!

Sharpton got his via organized crime. He never changed, just moved on to bigger grift. There was no moral issue here, just lack of adequate benefit for Al Sharpton, and probably some private disjunction between Mafia veteran Sharpton and spoiled-child Bigtree & co.

Yeah, except sharpton was never in the mafia. He’s a lot of things, but former mobster isn’t one of them.

The comments on the CBC article announcing the appeal have been overwhelmingly negative toward the Stephans. A trio of dim-bulb anti-vaxxers has shown up, trying to claim that the case is really to pave the way for mandatory vaccination. The same three show up in the comments on any article to do with vaccination. David’s brother has also shown up.

Hope for justice at last for the child this odious couple killed. My hope is for a real sentence this time rather than the mild rebuke they got at the first trail, and that their other children are taken to a place of safety, as its clear they would kill their other children in the same manner under similar circumstances that they killed Ezekiel.

Have to admit to being more than a little surprised the Crown is continuing to pursue them, but very glad they are.

I am very curious about the details of “establishing a medical standard unknown to law” and “taking into account irrelevant considerations.” I suspect the latter is primarily regarding the fact that Clackson seemed to be treating the case as if it were criminal negligence causing death, where obviously death is a key element, whereas it is not even a necessary element in the charge that was before the court. Associate Chief Justice Rooke made if very clear in his remarks in his ruling on pre-retrial motions from the Stephans that they were focusing on the wrong things with regard to determination of criminality on the actual charge.

Oh, my god, the comments. They make my brain hurt.

Someone actually had the gall to say, “Obviously as you and your wife are NOT GUILTY now the search must be on for WHO IS!”

FFS

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