David and Collet Stephan will be tried a third time after the Alberta Court of Appeal set aside acquittals Monday, finding the trial judge made errors, including his comments about a Nigerian-born doctor’s manner of speaking, which the province’s top court found led to “a reasonable apprehension of bias.”
The couple was charged with failing to provide the necessaries of life to their son, Ezekiel Stephan, who was 19-months-old when he died in 2012.
The pair have already gone through two trials on those charges; convicted in 2016 and then, after the Supreme Court of Canada ordered a new trial, acquitted in September 2019.
In his decision to acquit the couple, Court of Queen’s Bench Justice Terry Clackson made remarks the Crown argued were “abusive” and “crossed the line” about the medical examiner, a Nigerian-born doctor who speaks with an accent.
Clackson described Dr. Bamidele Adeagbo’s testimony as “garbled” and “incomprehensible.”
The appeal court sided with the prosecution in finding Clackson’s comments “were unjustified” and “would lead a reasonable and informed person to view the trial judge’s conduct as giving rise to a reasonable apprehension of bias.”
The judge in the first trial ruled the official cause of death to be bacterial meningitis.
But after the second trial, Clackson agreed with the defence’s medical expert who said the boy died from a lack of oxygen in the ambulance.
What would a reasonable parent do?
But the appeal court also sided with the Crown’s appeal arguments in finding that Clackson erred in law when he ruled the prosecution hadn’t proven the boy would have survived if he’d received more timely medical intervention.
“The Crown is not required to prove that the child’s life would or could have been saved had the parents sought medical treatment when a reasonably prudent parent would have done so,” reads the appeal decision.
“[The Criminal Code charge] is intended to protect children from risks of danger to their life or permanent health; that is the norm parents are to meet in fulfilling their duty to their child.”
Adeagbo, who performed Ezekiel’s autopsy, testified the toddler died from meningitis, which he said would have been treatable had the parents taken him to a doctor.
In acquitting the couple and siding with Dr. Anny Sauvageau, a key defence witness, the judge made comments that led to a group of legal and medical experts calling for a racism investigation.
Court addresses unconscious bias
“His ability to articulate his thoughts in an understandable fashion was severely compromised by: his garbled enunciation; his failure to use appropriate endings for plurals and past tenses; his failure to use the appropriate definite and indefinite articles; his repeated emphasis of the wrong syllables; dropping his Hs; mispronouncing his vowels; and the speed of his responses,” Clackson wrote in his decision.
Although expert witnesses can expect they may be “strongly challenged” given the impactful role they play in the justice system, the Alberta Court of Appeal wrote that courts must ensure unconscious bias “does not infect credibility assessments.”
“In our pluralistic democracy, there is no place for weighing evidence, much less determining its admissibility, based on how someone speaks the language of the proceeding,” wrote the court in its unanimous decision.
“It is inappropriate to disparage witnesses for their pattern of speech, accents or less-than-perfect command of one of Canada’s official languages. Or of any language for that matter. No witness should fear their testimony will be dismissed or discredited because of their manner of speech. All who come in contact with our justice system must be treated with respect and dignity and on a fair and equal basis.”