Alberta parents David and Collet Stephan have asked the Supreme Court of Canada to once again hear their case but must still book their third trial, a judge has ruled.
The Stephans are charged with failing to provide the necessaries of life to their son, Ezekiel Stephan, who was 19 months old when he died in 2012.
Last week, the Supreme Court of Canada opened a file but decisions on whether to grant leave to appeal typically take a couple of months from this point.
On Thursday, lawyers for the couple asked the Alberta Court of Appeal allow them to put off booking their third trial while they wait to learn if the country's top court will hear their case.
"Let's just sit back and see what the supreme court decides," said Jason Demers, a lawyer for the Stephans. "There's no harm with waiting a couple months."
But prosecutor Rajbhir Dhillon disagreed, pointing out that the Stephans had to prove they'd suffer irreparable harm if the trial was to be booked.
The judge agreed. After hearing about 30 minutes of arguments from lawyers for the Crown and Stephans, Justice Jo'Anne Strekaf rejected the defence application.
The Stephans have previously testified they initially believed Ezekiel had croup, an upper airway infection, and treated him with natural remedies, including a smoothie containing garlic, onion and horseradish.
Despite being advised to take the sick boy to a doctor, it was only when he stopped breathing that they sought medical attention.
Judge describes Nigerian-born doctor testimony as 'garbled'
The Stephans have a years-long history with various levels of the courts.
In 2016, a Lethbridge jury convicted David and Collet following their first trial.
But the supreme court ruled there were errors in how the judge instructed the jury and sent the case to a second trial.
In 2019, following a second trial, the couple was acquitted but the Alberta Court of Appeal unanimously ruled the trial judge had shown a "reasonable apprehension of bias" when he described the Crown witness — a Nigerian-born doctor who speaks with an accent — as having given testimony that was "garbled" and "incomprehensible."
Following that decision, a third trial was ordered.
A trial date is expected to be set in the coming weeks.