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Judge's 'abusive' comments 'crossed the line,' Crown argues while appealing Stephans' acquittals

The Alberta judge who found David and Collet Stephan not guilty in the death of their toddler sent a message to people who speak English as a second language that they "shouldn't even bother participating in our courts," said the prosecutor arguing that their acquittals should be overturned. 

Alberta couple first convicted in their son Ezekiel's death, then found not guilty at retrial last year

David and Collet Stephan smile and hold hands as they leave the courthouse in Lethbridge, Alta., on Sept. 19, 2019, after the judge in a retrial found them not guilty in the 2012 death of their son Ezekiel. (Vincent Bonnay/Radio-Canada/CBC)

The judge who found David and Collet Stephan not guilty in the death of their toddler sent a message to people who speak English as a second language that they "shouldn't even bother participating in our courts," said the prosecutor arguing that their acquittals should be overturned. 

In his arguments before Alberta's top court, prosecutor Rajbir Dhillon said Court of Queen's Bench Justice Terry Clackson's remarks about a Nigerian-born doctor were "abusive" and "crossed the line."

The Alberta Court of Appeal's panel of judges has already indicated it will not be making a decision today.

The Stephans were accused of refusing to provide medical care to their dying toddler until it was too late. 

They have already gone through two trials on charges of failing to provide the necessaries of life; being convicted in 2016 and then, after the Supreme Court of Canada ordered a new trial, acquitted last September. 

The turbulent case involves two highly-charged current issues: race and the rejection of mainstream health care. 

Ezekiel Stephan, the boy at the centre of it all, would be turning 10 years old this summer. He was 19 months old when he died in 2012.

The Crown has presented two arguments in asking the province's top court to overturn the acquittals.

First, it argues the trial judge was biased, making "insulting" and "offensive remarks" about the Nigerian-born medical examiner's manner of speaking during his testimony. 

And secondly, the Crown has argued that the judge erred in making the Crown prove that timely treatment would have saved Ezekiel's life. 

The defence stuck with the position that Ezekiel did not have meningitis.

"If medical attention would not have saved Ezekiel's life, how can failing to seek it endanger him?" he posed.

After David Stephan was acquitted, he said his case "helps protect parental rights" so parents won't be held criminally liable if they choose alternative treatments for their sick children.

Ezekiel Stephan died in 2012 when he was 19 months old. Ezekiel would be turning 10 this August. (Prayers for Ezekiel/Facebook)

Differing medical opinions

In 2016, a jury convicted David and Collet following their first trial. 

At that time, the official cause of death was deemed to be bacterial meningitis.

The couple appealed the convictions all the way up to the Supreme Court of Canada, which found the original trial judge erred in his instructions to the jury. A new trial was ordered. 

A second trial presided over by Queen's Bench Justice Terry Clackson ended in acquittals in September 2019.

Dr. Anny Sauvageau, a defence witness, testified Ezekiel died from a lack of oxygen in an ambulance.

The Crown's expert, Dr. Bamidele 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.

But in acquitting the couple and siding with Dr. Sauvageau, the judge made comments that led to a group of legal and medical experts calling for a racism investigation. 

The Nigerian-born doctor speaks with an accent and the judge called his testimony "garbled" and "incomprehensible." 

"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.

In his decision to acquit the couple last year, the judge said Dr. Bamidele Adeagbo, a Nigerian-born medical examiner, spoke with an accent and was hard to understand. (CTV Calgary )

Judge's 'abusive' comments 'crossed the line'

The trial judge also implied that Alberta Health Services should not have hired the medical examiner. 

Dhillon called Clackson's remarks "insulting and improper" and "crossed the line."

"[The comments] come across as invective and abusive," said the prosecutor. 

Dhillon asked the panel what they would think if the judge made similar comments about the testimony of a domestic violence victim or if he had made those comments in front of a jury. 

The judge, said Dhillon, sent a message "telling people who speak English as a second language that they're not full participants in our court system." 

Judge ran 'completely fair trial,' says defence

Adeagbo had been qualified as an expert about 30 times in Alberta and numerous times in the United States as well. 

"[Clackson] pre-judged the evidence of Dr. Adeagbo, he declared he was incomprehensible," said Dhillon.

But Jason Demers, one of three lawyers representing the Stephans, said Clackson "ran a completely fair trial."

"His comments, in our submission, were appropriate, they were proper," said Demers.

But Alberta's chief justice pushed back on some of the trial judge's comments.

"My question is what relevance does communication style, enunciation, language, syntax, mispronouncing vowels — what relevance does any of that have to the question of admissibility of evidence?" Fraser asked. 

Over the course of the trial, the Stephans testified that they initially thought Ezekiel had croup, an upper airway infection, and treated him with natural remedies including a smoothie containing garlic, onion and horseradish.

They said he appeared to be recovering at times, and they saw no reason to take him to hospital, despite his having a fever and lacking energy.

The parents called an ambulance when the boy stopped breathing.

'He was dead when they got him'

The Stephans argued it was paramedics who caused Ezekiel's death by improperly intubating the boy.

 On Thursday, Shawn Buckley, another of the Stephans' lawyers, continued to argue the defence position that a lack of child-size supplies in the ambulance caused the boy's death.  

But Justice Peter Martin interjected, pointing out that by the time the parents got Ezekiel to paramedics, he hadn't been breathing for 11 minutes.

"He was dead when they got him," said Martin. "How can you say, in those circumstances, medical people are responsible … I'm just at a loss here."

'They put him at risk of death'

The second ground of the Crown's appeal argument presented Thursday involved the position that the judge improperly believed the Crown had to prove that medical treatment would have saved Ezekiel's life.

In his decision, Clackson found Ezekiel died of a lack of oxygen, not meningitis, but the Crown says that doesn't matter.

Once the Stephans believed Ezekiel had some form of meningitis — they did internet searches and spoke with two people about the possibility — and, with the knowledge that illness would endanger his life, they had a duty to take him to a hospital or doctor. 

"They put him at risk of death," said Dhillon.

For example, said Dhillon, if Ezekiel had cancer and the Stephans knew that and declined treatment, under the judge's formula, the Crown would have had to prove that cancer treatment would have cured him for the Stephans to be convicted. 

The proper test, said Dhillon is whether the Stephans had a legal duty to provide the necessaries of life to Ezekiel, whether they failed in that duty, whether their failure endangered the boy's life and was it a departure from what a reasonable person would do in similar circumstances. 

The Court of Appeal panel will include Chief Justice of Alberta Catherine Fraser, Justice Peter Martin and Justice Marina Paperny. 

About the Author

Meghan Grant

CBC Calgary reporter

Meghan Grant is the courts and crime reporter for CBC Calgary.

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