Summary

Keywords

Criminal law - Courts, Judges - Criminal law — Failure to provide necessaries of life — Factors to be considered — Vaccination status — Courts — Judges — Impartiality — Reasonable apprehension of bias — Expert witness’s manner of speech — Should every Canadian who makes the free and informed choice not to vaccinate be subject to prosecution under the Criminal Code? — In a country as diverse as Canada, does judicial comment on “manner of speech” constitute bias? — Criminal Code, R.S.C. 1985, c. C 46, s. 215.

Summary

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On March 13, 2012, the 18-month-old son of the applicant Collet Dawn Stephan stopped breathing and was transported to the hospital. He had been sick for about two weeks, during which his parents treated him with herbal and naturopathic supplements. The child’s health could not be restored, and he died five days later when the life-support was removed.

On May 15, 2018, this Court quashed the applicant’s conviction for failure to provide the necessaries of life entered by a jury and confirmed by a majority of the Court of Appeal, and ordered a new trial. On the retrial, a judge of the Court of Queen’s Bench sitting without a jury acquitted the applicant of failure to provide the necessaries of life. The Court of Appeal allowed the Crown appeal, set aside the verdict of acquittal and ordered a new trial. In the court’s view, the trial judge’s comments relating to an expert witness would lead an informed person, viewing the matter realistically and practically and having thought the matter through, to conclude that the trial judge did not assess this expert’s evidence fairly, which may have coloured his assessment of the evidence, rendering the trial unfair. The court also concluded that the trial judge misapprehended the elements of the offence: the Crown is not required to prove, as an element of the offence under s. 215(2)(a)(ii), that the child’s life would have been saved with medical treatment.