Complaint over Alberta judge's comments about Nigerian-born medical expert's accent moving ahead
Dozens of medical and legal experts filed complaint against Justice Terry Clackson
A complaint alleging an Alberta judge acted in a "discriminatorily" fashion and "harshly mocked" a Nigerian-born medical examiner's accented speech at a trial is now before a member of the Canadian Judicial Council's conduct committee.
Dr. Bamidele Adeagbo was a Crown witness at two trials for David and Collet Stephan, who were accused of failing to provide the necessaries of life in the death of their toddler, Ezekiel, who was 19 months old when he died in 2012.
The Stephans were accused of refusing to provide medical care to their dying toddler until it was too late. They testified they thought Ezekiel had croup and were treating him with natural remedies before he died.
A jury convicted them in 2016, but the Supreme Court of Canada overturned that verdict and ordered a second trial, which was heard only by Court of Queen's Bench Justice Terry Clackson in 2019.
At the second trial, Adeagbo, who performed Ezekiel's autopsy, said the toddler died from meningitis, which he said would have been treatable had the parents taken him to a doctor sooner.
The judge instead accepted the testimony of a defence expert who said the boy died of a lack of oxygen, not bacterial meningitis.
Among other things, Clackson wrote that Adeagbo's ability to "articulate his thoughts in an understandable fashion" was severely compromised by his garbled enunciation.
That prompted 42 doctors, lawyers and professors to file a complaint to the judicial council against Clackson, saying some may have perceived racism in the judge's reasons for acquitting the Stephans at their second trial.
"We are of the view that Justice Clackson acted discriminatorily," reads the complaint. "Some may perceive racism."
The letter said the judge made several comments about Adeagbo's accent, and "inappropriately implicated his national or ethnic origin as a person of African roots."
The Canadian Judicial Council put a review of the complaint on hold because the Crown was appealing the acquittals.
Crown prosecutor Rajbir Dhillon arguing before Alberta's top court that the judge's comments were "abusive" and "crossed the line," and that Clackson sent a message to people who speak English as a second language that they "shouldn't even bother participating in our courts."
On Monday, the Alberta Court of Appeal set aside the acquittals and ordered a third trial, finding that Clackson made errors, including his comments about Adeagbo's manner of speaking, which the court said led to "a reasonable apprehension of bias."
"No witness should fear their testimony will be dismissed or discredited because of their manner of speech," wrote Chief Justice Catherine Fraser, adding the comments were irrelevant to issues of evidence and admissibility.
She added a reasonable person would view Clackson's conduct as giving rise to a reasonable apprehension of bias.
"In these circumstances, a new trial is the only available remedy."'
The Canadian Judicial Council spokeswoman Johanna LaPorte said the review of the complaint over Clackson's comments can now proceed after the acquittal.
Juliet Guichon, a University of Calgary medical ethicist who signed the complaint, said the judge's comments on Adeagbo's accent were unnecessary.
"The judge disregarded the medical evidence and it appears he disregarded it because he favoured the opinion of a Canadian-born forensic pathologist over the opinion of the medical examiner who happened to have been born in Nigeria but who actually did the autopsy," said Guichon.
The complaint reads, "We believe that Justice Clackson's choice of words is inappropriate, shocks the conscience, and speaking for ourselves, undermines our confidence in the administration of justice."
Clackson "harshly mocked" Adeagbo's manner of speech and accented English, the complaint reads.
Here is a passage from Clackson's decision:
"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."
Although Clackson wrote that Adeagbo's accent "does not form a basis for a realistic concern that he was biased or partial," the complainants say the judge gave the doctor's evidence less weight because of the perceived speech problems.
For more stories about the experiences of Black Canadians — from anti-Black racism to success stories within the Black community — check out Being Black in Canada, a CBC project Black Canadians can be proud of. You can read more stories here.
With files from Meghan Grant