Acquittal of Stephan couple overturned
David and Collet Stephan facing new trial after panel finds bias from trial judge
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.”