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David and Collet Stephan are seen in Calgary, in a March 9, 2017, file photo.Todd Korol/The Canadian Press

The Crown is asking the Alberta Court of Appeal to overturn the acquittal of a couple charged in the death of their son.

David and Collet Stephan were accused of not seeking medical attention soon enough 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 necessities of life in their second trial on the charge.

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 Bamidele Adeagbo, the original medical examiner.

Crown prosecutor Rajbir Dhillon told the Appeal court Thursday that Justice Clackson showed a reasonable apprehension of bias for “insulting and improper” comments throughout the trial about the verbal skills of Dr. Adeagbo, who was born in Nigeria.

“This ground is about whether the way a witness speaks should influence the weight of their evidence or their ability to participate in our court system,” Mr. Dhillon said.

“The trial judge’s comments suggest that it should have an influence. But a witness should not be judged on their elocution and they should not have their evidence prejudged based on the way they speak.

“There is a reasonable apprehension that the trial judge did both of these things with regard to the evidence of Dr. Bamidele Adeagbo.”

Mr. Dhillon said Justice Clackson made it clear that he would give less weight to the evidence because he had difficulty understanding Dr. Adeagbo’s testimony.

In his decision last September, Justice Clackson noted that Dr. Adeagbo 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,” Justice Clackson wrote.

The judge also called out Dr. Adeagbo for “body language and physical antics … not the behaviours usually associated with a rational, impartial professional imparting opinion evidence.”

Mr. Dhillon said those comments would lead a regular observer to think that it is more likely than not that the judge consciously or unconsciously did not treat Dr. Adeagbo’s evidence fairly.

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

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

Mr. Dhillon said the judge also erred in forcing the Crown to prove whether timely medical treatment would have saved Ezekiel’s life, instead of the fact the couple failed to act.

“They put him at risk of death,” he said.

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