The former Alberta couple accused of failing to seek medical help for their dying toddler are considering ditching the jury for their re-trial, which will take place sometime next year.

David and Collet Stephan were convicted in 2016 of failing to provide the necessaries of life after their 19-month-old son died from bacterial meningitis.

But last month the country's highest court agreed with the Stephans' legal team that the original trial judge erred in instructions to the jury, who in 2016 convicted the couple in the death of their toddler son.

Defence lawyer, Karen Molle, had argued that due to the significant "polarization of evidence" and "overabundance of medical evidence," the trial judge's instructions to jurors did not give them the tools they needed to properly decide the case.

A new trial date was supposed to be set in Lethbridge court on Monday, but lawyers indicated they were considering a re-election to a judge-alone trial this time around, rather than involving a jury. They will be back in court in July to settle on a new trial date.

Instead, a pre-trial was scheduled to begin in February. Defence lawyers Karen Molle and Heather Ferg indicated the hearing will focus on the admissibility of six experts' evidence.

Couple treated dying boy with hot peppers, garlic

The Stephans were living in Lethbridge when their 19-month-old son Ezekiel died in 2012.

Jurors heard evidence the couple treated the sick boy with hot peppers, garlic, onions and horseradish — even though a family friend who was a nurse told them she thought Ezekiel had meningitis.

The trial also heard the little boy was too stiff to sit in his car seat and had to lie on a mattress when Collet Stephan drove him from their rural home to a naturopathic clinic in Lethbridge to pick up an echinacea mixture.

The Stephans never called for medical assistance until Ezekiel stopped breathing. He was rushed to a local hospital but died after being transported to a Calgary hospital.

The couple, who now live in Nelson, B.C., were convicted of failing to provide the necessaries of life following the trial in 2016.

Last November, the Alberta Appeal Court upheld the convictions. But because Justice Brian O'Ferrall, one of the three judges, disagreed and found the couple should have been granted a new trial, the Stephans had automatic leave to ask the Supreme Court to hear arguments.