Should anti-vaxxers be sent to jail if their children die from preventable disease? Should parents be jailed when they fail to take their child to a doctor or when they die of a preventable illness? These are the questions raised in the case of R v Stephan by the defendant and the crown respectively. While this case did not directly touch on vaccines, it raises interesting questions as to the requirements of parents to seek out broadly accepted medical services, and what rights (if any) parents have to seek alternative homeopathic, naturopathic, or some other new “-pathic” that may be invented next week. The Stephans were convicted of failing to provide the necessities of life at trial, and since their appeal was dismissed as a 2-1 split, they await their appeal at the Supreme Court of Canada.
On February 27th 2016, the Stephan’s 18 month old son, Ezekiel, became ill. He developed a “fever, decreased appetite, troublesome breathing, and some difficulty swallowing”.1 The Stephans contacted a friend who was a nurse, who thought it might be croup. They gave Ezekiel fresh air and natural supplements including garlic, olive leaf extract, and Methylsulonylmethane.2 Ezekiel got a bit better, and returned to pre-school. Then he got worse. By March 12th, the nurse friend came to examine Ezekiel again, and raised the possibility of meningitis, and told the Stephans to take Ezekiel to a doctor. The Stephans discussed, but decided not to take Ezekiel to a doctor. They treated him at home with a new type of supplement. By March 13th, Ezekiel was extremely stiff, to the point that he could not sit in his car seat, and he rode in the back of the vehicle on a mattress with one of his parents. By 9 p.m., Ezekiel was no longer breathing. The Stephans called 911, but it was too late. Ezekiel showed no neurological signs of activity upon arrival at the hospital, and was blue. He died three days later in hospital.
The Stephans were each found guilty of failing to provide the necessities of life. The court (ABQB) ruled that the reasonable parent, untrained in medical knowledge, would have taken their child to a doctor, particularly when he became so stiff as to not be able to sit and was having trouble breathing.
There is no doubt that the Stephans were keen and attentive parents. They have a number of other children, who they are very close to, and in turn are close to them. They consistently cared for Ezekiel while he was sick, to the best of their beliefs. They sought advice from their nurse friend, and tried him with a variety of herbal supplements, and consulted with a naturopath. There is no doubt they loved him very much.3
However, this case highlights the question: are parents criminally responsible when they stick to their beliefs about what is best for their children? We are now living in the age of “fake news”, and it can be hard to tell fact from fiction, reality from exaggeration. Are we prepared as a society to criminalize the actions of well meaning, if horribly misguided parents?
When this case is finally heard at the Supreme Court, the answer should be a firm yes. The merits of modern medicine are no longer in question.
As part of their sentence, the Stephans were required to post the entirety of the judgement against them online, so that other can see why this sort of behaviour is not acceptable in Canadian society. Regardless of what a random internet blog might say, illnesses such as meningitis have treatments that have been tested and proven effective. It is perfectly reasonable for the courts to mandate that parents use tried and true methods when situations turn dire, i.e. when, as stated in the Criminal Code: “the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.”4 The Court (ABQB) does not say that the Stephans were wrong to treat their son with garlic and olive leaf extract. For the first two weeks of his illness the court found that while the Stephans acted in ways that are likely sub-optimal in terms of medical care provided, they do not reach criminal levels. It is only once their child became very ill, and that they failed to seek appropriate medical care that they became criminally responsible.
This is in contrast to Mr. Stephan’s characterization of the situation as "whether we have the right to vaccinate or not vaccinate", and "whether or not we have to rush our children to the doctor every time they even get just the sniffles".5 Clearly the court does not require a rush to the doctors for the sniffles. Right now, all that is required is a rush to the doctors when your infant child seems unable to breath, and is so stiff they are unable to move, and you believe they have a very dangerous illness. He does raise an interesting point: why do we say that treatment for failing to seek proper care for meningitis is criminal, yet actively refusing to vaccinate is not criminal, when this can just as easily lead to the death of a child.
Regardless of whether or not a duty to vaccinate eventually occurs, for now parents are left only with the responsibility to seek medical attention when the life/wellbeing of their child is in immediate danger. If the Supreme Court overturns the earlier rulings on this case, it will almost entirely eliminate the ability for people to be prosecuted for this crime, given that potentially any sincerely held belief could serve as an excuse for not seeking medical care.
Once a person is no longer dependant on their parents, they may treat themselves in whatever way they choose, but we cannot know what Ezekiel would have wanted. All we know is that Ezekiel is dead. Tragically, this is another case where the voice of the child has been lost.
1 R v Stephan, 2016 ABQB 353,  AWLD 3595
4 Criminal Code, RSC 1985 S215 2(b).
5 Supra note 1 at para 51.