failing to provide necessaries of life

Court Rules New Trial for Couple Convicted in Child’s Death

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has ruled that a couple convicted of manslaughter in the suspected starvation of their two-year-old daughter should receive a new trial to put forward new evidence.

A jury convicted Sean and Maria Hosannah in October 2014 following the death of their 27-month-old daughter, Matinah, in February 2011.  Maria Hossanah was sentenced to two years in jail and her husband was sentenced to two years less a day. 

In February 2011, Matinah stopped breathing while in her mother’s arms.  Her father called 911, but paramedics could not resuscitate Matinah and she was pronounced dead in hospital.  Both of her parents, Sean and Maria Hosannah, were charged with manslaughter for allegedly failing to provide their daughter with the necessaries of life. 

Following their convictions, the Hosannahs began the appeal process and were therefore released from custody pending their appeal.

THE TRIAL

At trial, the Crown prosecution argued that the Hosannahs had failed to provide Matinah with the necessaries of life by not feeding her properly or obtaining medical attention for her. 

The jury heard evidence that Matinah was underweight and poorly developed.  She was unable to walk or crawl by the age of two.  A family doctor allegedly told the parents to take her to a specialist, however, Matinah had not received any medical attention in the last year of her life.

The Hosannahs defence was that they were good parents and were distressed by their daughter’s death.

The prosecution’s case rested largely on the evidence of Ontario’s chief forensic pathologist, Dr. Michael Pollanen.  Dr. Pollanen testified that Matinah was severely malnourished and lacked protein.  She was also found to have suffered from rickets and a blood disorder caused by vitamin deficiency.  Matinah also showed signs of chronic and severe asthma.  According to Dr. Pollanen, Matinah suffered an asthma attack while in a critical state of illness due to protein malnutrition and vitamin deficiency, which led to a lack of oxygen, shock and ultimately death.

Dr. Stanley Zlotkin, a pediatric nutritionist, testified that Matinah’s protein and vitamin deficiencies were the result of an unbalanced diet that stunted her growth.  He concurred with Dr. Pollanen that she was severely malnourished.

The defendants did not submit any evidence from a medical expert to challenge the prosecution’s expert reports. 

At the trial, the court learned that the Hosannahs maintained a strict vegetarian diet and only ate to live.  They also had an aversion to doctors, vaccinations and were suspicious that their daughter had been poisoned at birth.  Although the prosecution accepted that the Hosannahs did not want to hurt their daughter, it was argued that the choices they made led to their daughter’s death.

THE APPEAL

On appeal, the Hossanahs were allowed to present new evidence from two experts.

Fresh evidence can be entered on appeal if it is in the interest of justice, while preserving the integrity of the criminal justice process according to section 683(1)(d) of the Criminal Code. 

Dr. Michael Shkrum, a forensic pathologist, disagreed with Dr. Pollanen’s finding that asthma played a part in Matinah’s death.  According to Dr. Shkrum, there was no evidence that she suffered from protein malnutrition and he found that Matinah died of congestive heart failure due to her enlarged heart, conceivably caused by anemia and/or vitamin D deficiency. 

A second expert in pediatric bone disorders and genetics, Dr. Miller, confirmed that Matinah suffered from severe vitamin D deficiency rickets, which severely compromised her health and affected her growth. 

According to the Hosannahs’ lawyer at their appeal, Dr. Pollanen’s report relied upon a blood sample that was taken while doctors attempted to resuscitate Matinah. Matinah had more than half a litre of saline injected in her bloodstream to revive her, which may have diluted her blood and could explain her blood protein levels.

The judges of the Court of Appeal concluded that had the new evidence been admitted at trial it may have affected the verdict.

Although the jury could have concluded that reasonable parents would be aware of the absence of protein in their child’s diet and the risk that it posed, a jury could conclude that a reasonable parent may not realize that their child’s diet lacked adequate vitamins D and B12.

The proposed evidence is relevant because of its tendency to show what caused the deceased to die and, by inference, whether her death originated in any unlawful conduct by the appellants.

The Court of Appeal accepted the Hossanahs’ new reports, allowed the appeal of their convictions and ordered a new trial.

We will continue to follow the developments of this case as it proceeds to trial and will report on any updates in this blog.

In the meantime, if you are facing criminal charges or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  For your convenience, we offer 24-hour phone services.  We are available when you need us most.

Police Officer Sentenced to 12 Months in Jail for Death of Woman in Custody

Written on Behalf of Affleck & Barrison LLP

A new decision by the Ontario Superior Court of Justice, and for the first time in Canada, a police officer has been convicted and sentenced for failing to provide medical assistance to an individual in their custody.

In November 2019, London Police Constable Nicholas Doering (“Doering”) was convicted of criminal negligence causing death and failing to provide the necessaries of life in the death of Debralee Chrisjohn (“Chrisjohn”).

THE FACTS

On September 7, 2016, Chrisjohn, while in police custody, died of a heart attack as a result of having consumed a toxic level of methamphetamine.

A video of Chrisjohn being taken into the Ontario Provincial Police detachment showed her to be limp, silent and demonstrating no signs of movement.  She was witnessed to being dragged into a cell.  At that point, EMS was called, however, by the time they arrived they were unable to save her life.

Chrisjohn was in the custody of Constable Doering, who had arrested her for an outstanding OPP warrant, and transferred Chrisjohn to OPP custody. 

At his trial, Constable Doering testified that he did not believe that Chrisjohn required medical attention and was simply suffering from the effects of methamphetamine.  According to the defence, Constable Doering made an error in judgement that was reasonable based upon his experience with methamphetamine users and his conversation with an EMS supervisor early on in her detention.  Doering denied that he deliberately misled OPP officers.

The following facts were admitted by Constable Doering at his trial:

  • Chrisjohn was unable to provide herself with the necessaries of life while in the custody of Constable Doering;
  • Methamphetamine is a powerful stimulant drug and users often experience confused cognitive function, paranoia, elevated sensory stimulation and agitation and restlessness;
  • Medical treatment is available for those who have ingested methamphetamine, which typically includes monitoring and treating the user’s symptoms in a hospital until the effects have dissipated;
  • Medical treatment is not always warranted for those who experience side-effects from using methamphetamines;
  • If treatment or intervention is required, the sooner treatment is received the better;
  • On September 7, 2016, Chrisjohn required medical treatment due to the effects of using methamphetamines at the time of her transfer to the OPP;
  • Chrisjohn was in a critical state and required urgent medical intervention from the time of her arrival at the Elgin OPP detachment and onwards;
  • The delay in providing Chrisjohn with medical treatment impacted her chance of survival.  If she had received medical attention prior to the arrival of EMS at the Elgin OPP detachment, she may have survived.

THE ALLEGATIONS AND CRIMINAL OFFENCES

At trial, Crown prosecutors alleged that Constable Doering knowingly provided false and incomplete information regarding Chrisjohn’s medical condition to the OPP when he transferred custody and told OPP that she had been medically cleared.  Thus, demonstrating a wanton and reckless disregard for her life and providing the elements of criminal negligence causing death.  Furthermore, it was alleged that Constable Doering’s behaviour was a marked and substantial departure from the standard of care of a reasonable and prudent police officer.

Section 215 of the Criminal Code outlines the offence of failing to provide the necessaries of life.  According to the law, where a person is in charge of another, he/she has a duty to provide the necessaries of life.  The standard is not of perfection. The Crown prosecutor must prove that there was a marked departure from that of a reasonably prudent person having charge of another, in circumstances where it is reasonably foreseeable that a failure to provide the necessaries of life would lead to a risk of danger to the life of the victim.

Section 219 of the Criminal Code outlines the offence of criminal negligence.  This offence requires proof that the accused did something or failed to do something that was his/her legal duty to do that demonstrates a wanton and reckless disregard for the lives and safety of others.  The offence also requires that the accused’s conduct was a marked and substantial departure from the standard of care that a reasonably prudent person would observe in the circumstances.

Justice Pomerance, in her reasons for judgement, stated:

The evidence in this case suggests that stereotypes and generalized assumptions played a role in the events leading to Ms. Chrisjohn’s death.  …

In short, Cst. Doering had pre-conceived notions about drug users and he held fast to those notions when dealing with Ms. Chrisjohn.  Rather than moulding his theory to fit the facts, he seems to have moulded the facts to fit his theory. …

I am satisfied that a reasonably prudent police officer would have appreciated the need for medical assistance at the time of the transfer to the OPP, if not before, and would have been aware of the risk that failure to obtain such medical assistance would endanger Ms. Chrisjohn’s life. 

Justice Pomerance found that Constable Doering failed to provide Chrisjohn with the necessaries of life and in providing erroneous and incomplete information about Chrisjohn’s medical condition to OPP demonstrated a wanton and reckless disregard for her life, thus contributing to Chrisjohn’s death.  He was therefore found guilty of criminal negligence causing death.

Justice Renee Pomerance sentenced Constable Doering to 12 months in jail.  In her sentencing decision, she stated:

The sentence must convey the irrefutable message that Ms. Chrisjohn’s life was valued and valuable. … [I]n some cases, loss of life will, practically and symbolically, command the most significant form of penalty. This is one of those cases.

Constable Doering has been suspended from his duties with the London Police with pay and is currently appealing the decision. 

We will continue to follow this criminal case as it makes its way through the appeal process and will report any developments in this blog.

If you are facing a drug related charge or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947.  We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

Re-Trial Underway for Couple Charged in Son’s Death

Written on Behalf of Affleck & Barrison LLP


The re-trial for David and Collet Stephan has begun in Lethbridge Provincial Court, in Alberta.  The couple are each facing one count for failing to provide the necessaries of life to their 18-month-old son Ezekiel, who died of bacterial meningitis in 2012.

WHAT HAPPENED?

The Stephans were found guilty of failing to provide the necessaries of life to their son at trial in 2016.  David Stephan was sentenced to four months in jail.  His wife, Collet, was sentenced to three months of house arrest.  She was only to be allowed to leave her home for medical appointments and to attend church.  They were also to be on probation for two years, and were ordered to complete 240 hours of community service.

The couple had used natural remedies to treat their son rather than take him to a doctor when he had become severely ill.  They made smoothies out of hot pepper, ginger root, horseradish and onion.  The Stephans finally called for medical assistance once their son stopped breathing.  Ezekiel was rushed to a local hospital, but died after being transported by air ambulance to a Children’s Hospital in Calgary. 

We have previously blogged about the outcome of the Stephan’s appeal to the Alberta Court of Appeal.  On appeal, the Stephans argued that their convictions should be overturned because the trial judge erred by allowing too many Crown experts to testify, the medical jargon used during the trial confused the jurors, and the defence expert’s testimony was restricted.

At that time, the majority of the Appeal Court dismissed all grounds of appeal, including the position that the Stephans’ Charter rights had been violated because of the unreasonable delay between the time they were charged and the date they were convicted.

However, Justice Brian O’Ferrall did not agree with the majority of the Appeal Court and wrote a dissenting opinion in favour of a new trial for the Stephans.  It was Justice O’Ferrall’s opinion that the trial judge’s charge to the jury was confusing and misleading. 

The Stephans were granted an automatic right to have the Supreme Court of Canada hear their appeal as one of the three judges on the appeal panel dissented. 

WHAT HAPPENED AT THE SUPREME COURT OF CANADA?

In an unusual practice, the Supreme Court of Canada, after hearing all arguments on appeal, provided an immediate ruling from the bench.  On behalf of the highest court in Canada, Justice Michael Moldaver ruled that the trial judge did not properly instruct the jurors and therefore allowed the appeal, quashed the convictions and ordered a new trial.

PRE-TRIAL PROCEEDINGS

Prior to the commencement of their new trial, the Stephans filed an application requesting $1 million to cover their past legal expenses and $3 million to be placed in trust for any future defence fees.  The Stephans claimed that they had liquidated their assets, owed money to their previous lawyer, and did not have the funds necessary to receive a fair re-trial. 

The couple also filed applications to have certain statements withheld from the re-trial.  All of these applications have been denied. 

During the couple’s pre-trial hearing, they attempted to have statements exempted that they made to police, hospital staff and child welfare workers at the Alberta Children’s Hospital.  They argued that they were tired, stressed and felt pressured by the presence of the police when they made those statements.  Justice J.D. Rooke denied these applications as well as he could not find any breaches of the Stephans’ rights.

The Stephans also submitted additional applications to delay their re-trial.  These requests were denied by the judge and the re-trial was ordered to proceed as scheduled on June 3, 2019. 

Prior to the commencement of the pre-trial, David Stephan posted a video on his Facebook page stating:

The deck is stacked against us huge.  … I don’t have high hopes.  I anticipate that we may just find ourselves again before the Supreme Court of Canada and hopefully find some justice there like we did the last time.

COUPLE SENTENCED IN A SIMILAR DECISION

Last fall, a jury found Jeromie and Jennifer Clark guilty of criminal negligence causing death and failing to provide the necessaries of life to their 14-month-old son, John.  They failed to seek medical attention until the day before he died from an infection in November 2013.

The boy was found to be malnourished and died from a staph infection. 

The Crown requested a sentence of four to five years for the couple, while their lawyers recommended a more lenient sentence in the range of probation to eight months in jail.

Earlier this month, the couple were each sentenced to 32 months in prison.  Justice Paul Jeffrey stated:

A period of incarceration is necessary to deter other parents who may similarly recklessly forgo proper and timely medical care for their child.

We will continue to follow the developments in the Stephans’ court case and will provide updates in this blog as they become available.

In the meantime, if you are facing charges or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  For your convenience, we offer 24-hour phone services.  We are available when you need us most.