David and Collet Stephan were accused of not seeking medical attention sooner for 19-month-old Ezekiel, who died in 2012, in a June 11, 2020 story. (Photo by THE CANADIAN PRESS)

Judges to hear Alberta Crown appeal of couple’s acquittal in toddler death

Trial judge’s comments under scrutiny

CALGARY — An Alberta Crown appeal of a couple’s acquittal in the death of their son is to be heard in Calgary today.

David and Collet Stephan were accused of not seeking medical attention sooner for 19-month-old Ezekiel, who died in 2012. The couple testified they thought their son had croup and that they used herbal remedies to treat him.

Last September, a Court of Queen’s Bench judge found them not guilty of failing to provide the necessaries of life. Justice Terry Clackson accepted the testimony of a defence expert, who said the toddler died of a lack of oxygen, not bacterial meningitis as reported by the original medical examiner.

The Crown is arguing that Clackson committed a number of errors and made negative comments about the medical examiner that gave rise to a reasonable apprehension of bias.

In his decision, Clackson noted that Dr. Bamidele Adeagbo, who was born in Nigeria, 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 judge also called out Adeagbo for “body language and physical antics … not the behaviours usually associated with a rational, impartial professional imparting opinion evidence.”

The Crown said in its appeal notice that Clackson took into account “irrelevant considerations.”

“The trial judge’s comments in the trial gave rise to a reasonable apprehension of bias,” the Crown wrote.

A jury convicted the Stephans in 2016, but the Supreme Court of Canada overturned the verdict and ordered a second trial.

After Clackson’s verdict, dozens of medical and legal experts filed a complaint with the Canadian Judicial Council against him, alleging he made comments about Adeagbo that could be perceived as racist.

The judicial council acknowledged receiving the complaint but hasn’t gone ahead with an investigation as the case is still before the courts.

David Stephan said he had hoped to attend the appeal hearing in person, but the shutdown of the courts due to COVID-19 requires him to watch the proceedings via a video link.

This report by The Canadian Press was first published June 11, 2020.

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