David and Collet Stephan leave for a break during an appeal hearing in Calgary on Thursday, March 9, 2017. Alberta Crown prosecutors have stayed charges against the Stephans who were facing a third trial in the death of their toddler. THE CANADIAN PRESS/Todd Korol

LETHBRIDGE, Alta. - Crown prosecutors have stayed charges against parents who were facing a third trial in the death of their toddler in southern Alberta.

Shawn Buckley, a lawyer for David and Collet Stephan, said Tuesday he received a letter from the Crown about the decision.

"The Crown dropped the charges," Buckley told The Canadian Press.

"Obviously they're very relieved that the Crown is not proceeding against them to try and convict them."

A copy of the letter from Chief Prosecutor Shelley Bykewich directs the Lethbridge court to stay charges of failing to provide the necessaries of life against the Stephans.

The Alberta Crown Prosecution Service said it made the decision after a careful review of all of the available evidence that determined it did not meet its standard for prosecution.

"It has been more than nine years since the child passed away and the available evidence has deteriorated since the previous two trials," the service said in an email late Tuesday.

"The available evidence is no longer sufficient to meet the standard for prosecution and a reasonable likelihood of conviction no longer exists."

The service said senior prosecutors reviewed the evidence, transcripts of the previous proceedings, and input from prosecutors who previously handled the file. It said their assessment was further reviewed by a team of prosecutors including those with expertise in the area of child protection files.

David Stephan said it has been nine years since his son Ezekiel died and it was eight years ago he and his wife were charged.

"It has been absolutely life consuming," Stephan said in an interview.

"It's somewhat of a relief in relation to not going back to trial again although there was a part of me as well that would have liked to go back to trial and been able to dig in more to the missing evidence and all that we still haven't had provided to us eight years into it."

Stephan successfully represented himself at the second trial.

The Stephans were accused of not seeking medical attention sooner for 19-month-old Ezekiel, who died in 2012.

Over the course of their trials, the Stephans testified that they initially thought Ezekiel had croup, an upper airway infection, and treated him with natural remedies, including a smoothie with tinctures of garlic, onion and horseradish.

They said he appeared to be recovering at times and saw no reason to take him to hospital, despite his having a fever and lacking energy.

They called an ambulance when the boy stopped breathing.

A jury convicted them in 2016, but the Supreme Court of Canada overturned that verdict and ordered a second trial. A judge hearing the case without a jury found them not guilty in 2019.

The Alberta Court of Appeal granted a request by the Crown earlier this year to overturn the acquittal and ordered a new trial.

Buckley said the Crown's decision caught him off guard and the matter isn't over.

"Actually it's a little surprising because we still have an application for leave to appeal to the Supreme Court of Canada," Buckley said.

"Both David and Collet want to proceed with that because they think it's very important for the law to be clarified so that other parents don't face the type of uncertainty that they have been facing."

David Stephan said he's not expecting to celebrate.

"I think it's a little early to celebrate now," he said.

"We're still involved in the battle. We're still moving forward to the Supreme Court and it's still going to be a bit of an uphill journey."

Stephan said he will also seek to be repaid by the courts for the "tremendous amount of money" they spent over the past eight years.

The report by The Canadian Press was first published June 22, 2021.

— By Bill Graveland in Calgary.

News from © The Canadian Press, 2021