Complaint over Alberta judge’s criticisms of medical expert to proceed

A complaint against an Alberta judge who criticized a Nigerian-born expert witness’s accented speech as he dismissed charges against two parents in the death of their son will proceed now that an appeal in the case is over.

The Canadian Judicial Council shelved the complaint against Justice Terry Clackson, who criticized a medical examiner in a 2019 ruling as he dismissed charges against David and Collet Stephan. They were accused of failing to provide the necessaries of life for old son, Ezekiel, who died in 2012.

Earlier this week, the Alberta Court of Appeal ordered a new trial in a decision that concluded Justice Clackson’s comments about the medical examiner, Bamidele Adeagbo, were inappropriate and showed bias.

Johanna Laporte, director of communications for the Canadian Judicial Council, which investigates complaints against judges, said in an e-mail the complaint against Justice Clackson was postponed during the appeal. It has now been assigned to a member of the council’s judicial conduct committee, which is made up of judges, who will review it and decide what happens next.

“I can assure you that it is in both the public interest and in the interest of the judge to deal with this matter expeditiously,” she wrote.

Justice Clackson could not be reached to comment on the complaint.

The Stephans were accused of waiting too long to seek medical attention after their son became ill in 2012. A jury convicted the couple in 2016, but the Supreme Court of Canada overturned that verdict. Justice Clackson oversaw the second trial.

One of the issues at trial was Ezekiel’s cause of death. Dr. Adeagbo concluded Ezekiel died of bacterial meningitis and the Crown agued the couple should have known that but did not seek medical attention.

The Stephans testified that they initially thought Ezekiel had croup and they treated him with natural remedies, including a smoothie with garlic, onion and horseradish. They called an ambulance when he stopped breathing.

Justice Clackson concluded the boy had viral meningitis and he accepted the testimony of a defence expert witness who said he died of a lack of oxygen while in the ambulance.

In rejecting Dr. Adeagbo’s findings, Justice Clackson wrote in detail about the medical examiner’s manner of speech, body language and attitude.

The judge wrote Dr. Adeagbo’s ability to communicate was “compromised” by garbled speech, a failure to use appropriate endings for plurals and past tenses, failing to use definite and indefinite articles properly, and emphasis on incorrect syllables, as well as his tendency to drop the “H” sound and the speed of his speech.

He also criticized Dr. Adeagbo’s “movements, body language and physical antics,” which he wrote “were not the behaviours usually associated with a rational, impartial professional imparting opinion evidence.”

A group that included more than three dozen lawyers, doctors and researchers filed the complaint shortly after the decision. The complaint said Justice Clackson’s attacks on Dr. Adeagbo could be perceived as racism: “It is hard to imagine that if Dr. Adeagbo, who is of African origin, had spoken in a typically American, Australian, British or other more familiar accent, Justice Clackson would have been so scathing.”

Juliet Guichon, who teaches about health, law and ethics at the University of Calgary’s medical school and signed the complaint, said she was surprised to read the judge’s comments about the medical examiner.

She also pointed out the appeal court’s decision to overturn Justice Clackson’s ruling could mean a costly third trial that will be distressing for everyone involved.

“The justice system depends upon the public’s confidence in it,” she said. “The judicial system works hard not to be brought into disrepute because it relies upon the confidence that the public has in its proceedings.”

With a report from The Canadian Press

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