Calgary Herald

Acquittal of Stephan couple overturned

David and Collet Stephan facing new trial after panel finds bias from trial judge

- KEVIN MARTIN Kmartin@postmedia.com On Twitter: @Kmartincou­rts

The province's top court has overturned the acquittals of an Alberta couple in connection with the death of their toddler son.

In a written decision released Monday, a three-member Alberta Court of Appeal panel said the prosecutio­n was the victim of a reasonable apprehensi­on of bias by trial Justice Terry Clackson over comments he made about their medical expert.

Clackson acquitted David and Collet Stephan on charges of failing to provide the necessarie­s of life for their 19-month-old son, Ezekiel, who died in 2012.

Crown prosecutor Rajbir Dhillon argued last June that Clackson showed a reasonable apprehensi­on of bias for “insulting and improper” comments throughout the trial about the verbal skills of Dr. Bamidele Adeagbo, who was born in Nigeria.

The three Court of Appeal judges — Chief Justice Catherine Fraser, Justice Marina Paperny and Justice Peter Martin — agreed.

In his reasons for acquitting the Stephans, Clackson said Adeagbo spoke with an accent and was difficult to understand.

“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.

The Court of Appeal noted, “The Crown submits the trial judge's criticisms of Dr. Adeagbo's manner of speech was unwarrante­d and unfair.

“It points out that (defence witness) Dr. (Anny) Sauvageau too spoke with a strong accent, shared many of the same speech characteri­stics as Dr. Adeagbo, spoke too quickly and used `medical jargon.' Yet, as the Crown argues, only Dr. Adeagbo was criticized for speaking in this way; Dr. Sauvageau's manner of speaking passed without comment,” the appeal court said.

“In our respectful view, the comments about Dr. Adeagbo in the reasons were unjustifie­d.”

The appeal judges also said Clackson improperly let David Stephan, who was self-represente­d, cross examine Adeagbo for four days.

“The Stephans had alleged Dr. Adeagbo was biased against them because they had not immunized their child, an observatio­n the doctor included in the autopsy report. We pause here to observe that the fact Ezekiel had not been vaccinated was a highly relevant considerat­ion for a pathologis­t diagnosing a cause of death that would almost certainly have been avoided if the subject had been vaccinated. In other words, Dr. Adeagbo's conclusion that Ezekiel died from complicati­ons associated with bacterial meningitis … would be suspect if Ezekiel had been vaccinated.”

 ?? THE CANADIAN PRESS FILES ?? While acquitting David and Collet Stephan, above, Justice Terry Clackson said Dr. Bamidele Adeagbo, the Crown's medical expert, spoke with an accent and was difficult to understand.
THE CANADIAN PRESS FILES While acquitting David and Collet Stephan, above, Justice Terry Clackson said Dr. Bamidele Adeagbo, the Crown's medical expert, spoke with an accent and was difficult to understand.

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