LETHBRIDGE, Alta. — An Alberta judge rejected a defence application Thursday to dismiss the case against a couple charged in the meningitis death of their toddler.
David and Collet Stephan are on trial for a second time for allegedly failing to provide the necessaries of life to their 19-month-old son Ezekiel in 2012.
They treated him with alternative therapies before eventually calling 911, but the child died in hospital of bacterial meningitis.
The couple was originally found guilty by a jury. The Supreme Court ordered a new trial last year.
After the Crown concluded its case Thursday, defence lawyer Jason Demers applied to have the charges dismissed.
Demers said the Crown failed to prove that Ezekiel would have survived had he received earlier medical attention.
"There is no evidence before the court ... and I would invite the court to dismiss the charges against the Stephans," he said.
He reminded the court of the testimony of Dr. Shauna Burkholder, an expert on pediatric medicine who treated Ezekiel after he arrived at the Alberta Children's Hospital in Calgary.
Burkholder said the child's brain scan was one of the "most devastating" she had ever seen.
But she also said it was possible that someone with meningitis could still die after receiving treatment in hospital, said Demers.
Justice Terry Clackson noted that Burkholder had also testified that 100 per cent of people who contract bacterial meningitis and don't seek medical help end up dying. Those who get help have a 95 per cent survival rate.
The judge said a jury could infer from the evidence that Ezekiel's life would have been saved had he been taken to hospital 48 hours earlier.
"Therefore the application to dismiss the indictments is dismissed," Clackson said.
The trial previously heard from two witnesses — a family friend and a naturopath — who said they had advised the family to take the sick child to a doctor.
The case is adjourned until Monday, when the defence will have an opportunity to make an opening statement.
Court heard that David and Collet Stephan are expected to take the stand as defence witnesses.