The judge's bizarre remarks in the Ezekiel Stephan case signal a miscarriage of justice

In deciding that Collet and David Stephan were not guilty of failing to provide the necessaries of life in the 2012 death of their son, Ezekiel, Justice Terry Clackson ​​​​​​issued a written decision that, in our view, improperly focused on the medical examiner's accent, and not on the medical evidence. Such focus is suspect, and could be evidence of racism.

The main questions in determining Ezekiel's parents' culpability were whether they failed to provide medical attention, endangering his life, and whether such failure constituted a marked departure from what reasonably prudent parents would do in similar circumstances.

In our view, these were not difficult questions to answer. Justice Clackson heard expert testimony from the medical examiner on Ezekiel's case —  Dr. Bamidele Adeagbo, who happened to be of Nigerian descent — who testified that his autopsy showed the 19-month-old boy died of bacterial meningitis and a lung infection. 

Justice Clackson, however, rejected this opinion, and made extensive unrelated observations about Dr. Adeagbo's accent, pronunciation and conduct. Then he accepted the opinion of another forensic pathologist, who testified that Ezekiel likely had viral meningitis and croup. 

In accepting this determination, Justice Clackson decided that the Stephans did all they could have done given the circumstances, and that they were not guilty of failure to provide the necessaries of life.  

Ezekiel's last weeks

Remember what we know about this case: Ezekiel contracted meningitis and died at just 19 months old. For weeks, he suffered without proper medical treatment —  with fever, unwillingness to eat, moaning, decreasing responsiveness and engaging in behaviour such as tugging on his diaper and rubbing his face — yet his parents treated him with natural "remedies" instead of taking him to a medical doctor or hospital.

The parents acknowledged in their testimony that on March 13, 2012, Ezekiel had an appearance of discomfort when they were on their way to run errands to Lethbridge, Alta., one hour from their rural home. The grocery store they went to had a walk-in medical clinic, but the parents did not take Ezekiel there.

That evening, Ezekiel stopped breathing, and his parents called 911. He was eventually transported to Alberta Children's Hospital, where he was later taken off life-support.

Dr. Adeagbo's testimony

That is where the expert testimony from medical examiner Dr. Adeagbo comes in. In conducting Ezekiel's autopsy, Dr. Adeagbo had the professional duty to examine Ezekiel's body to determine what caused his death, and to review the circumstances to determine the manner of death.  

He found that the little boy's brain and spinal column were full of pus and that the sac that held the right lung also contained pus. His professional opinion was that Ezekiel's death was the result of meningitis.

But Justice Clackson not only rejected Dr. Adeagbo's opinion, he also noted Dr. Adeagbo's alleged inability "to articulate his thoughts in an understandable fashion" because of "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."

Justice Clackson also wrote that Dr. Adeagbo was "calm, rational, reasonable, arrogant, petulant, exasperated, combative, argumentative and angry," and that the physician's attitudes were demonstrated not just verbally but also in his "movements, body language and physical antics." 

Antics? Justice Clackson did not explain why he chose to use this descriptor for an expert witness.

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Dr. Adeagbo founded his conclusion squarely on the extensive medical evidence (which included his professional observations, microbiology tests, tissue tests, DNA tests, photographs, x-rays and CT scans). He stated the obvious: Ezekiel died of a condition that could have been treated with antibiotics had the parents taken Ezekiel to the doctor.  

The written decision in this case leaves us with questions:

Why did Justice Clackson comment extensively on the expert's Nigerian accent, and not on the French-Canadian accent of the opposing pathologist?   

And why did Justice Clackson choose to disregard statements that the parents made to medical staff and police back in 2012 when Ezekiel was on life support? Among other things, the parents said that Ezekiel's body became so rigid that he could not sit in his car seat, which suggests that they observed symptoms of meningitis. Justice Clackson said he could not rely on those statements and accepted instead claims made in court seven years later. Why?

Justice Clackson did not accept the opinion of a highly-qualified physician with a black face, who relied upon extensive medical evidence — who actually looked into Ezekiel's body and told the court what he saw. Instead, the judge criticized him for his speech and "antics."

Dozens of lawyers and medical professionals have filed a complaint with the Canadian Judicial Council over Justice Clackson's remarks — an act in which we participated. We believe Justice Clackson's unnecessary and arguably prejudiced remarks might explain why the judge rejected his medical evidence. They bring the administration of justice into disrepute, and might very well have led to a miscarriage of justice.

Juliet Guichon is a legal scholar, Ian Mitchell is a pediatric respirologist; both are faculty members of the Cumming School of Medicine, University of Calgary. Pauline Alakija is a forensic pathologist and Clinical Professor of the University of Alberta Faculty of Medicine.

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