David and Collet Stephan, seen here in March, 2017, were acquitted in Lethbridge, Alta., last month on a charge of for failing to provide the necessaries of life in the death of their 19-month-old Ezekiel, who died in 2012.The Canadian Press
Alberta prosecutors are appealing a not-guilty verdict in the case of a couple who faced criminal charges for turning to natural remedies instead of seeking medical attention for their sick son.
David and Collet Stephan were acquitted in Lethbridge, Alta., last month on a charge of for failing to provide the necessaries of life in the death of their 19-month-old Ezekiel, who died in 2012. The Crown’s appeal alleges that Justice Terry Clackson erred in his reasoning and that his comments about an African-born doctor show bias.
Justice Clackson’s complaints about the medical examiner’s accent and word choice in his judgment led to several protests to the Canadian Judicial Council, including a letter signed by 42 doctors and lawyers who asked for an investigation.
The couple testified that they thought the infant had croup and tried to treat him with a smoothie made of garlic, onion and horseradish. They called an ambulance when he stopped breathing. He later died in hospital. The medical examiner, Bamidele Adeagbo, concluded the boy died of bacterial meningitis.
In his decision, the judge sided with a defence expert who said the boy died of a lack of oxygen during the ambulance ride rather than bacterial meningitis.
The appeal states that the Crown believes “the trial judge erred in assessing credibility by taking into account irrelevant considerations.”
The appeal, filed last Friday in Calgary, is the latest step in a case that has been in the courts for seven years. The Stephans were found guilty by a jury in 2016, but the Supreme Court of Canada set aside that conviction and ordered a new trial, which ended in a not-guilty decision last month.
Shawn Buckley, who represented the couple in the first trial and was Ms. Stephan’s attorney in the second, said he was surprised by the Crown’s decision to appeal: “Really, we need to go through this again?” he asked.
“Regardless of how you feel about this, it’s been seven years. They have four kids, three who didn’t exist at the time Ezekiel died. How long do you keep a family totally terrorized with legal charges holding over their heads, let alone destroying them financially with legal bills?” he added.
The Alberta Ministry of Justice declined to comment on the notice of appeal. Speaking with reporters in Calgary, Justice Minister Doug Schweitzer said he wasn’t involved in the decision to ask Alberta’s highest court to open the case for a third time. "We leave the decisions regarding certain appeals to the lawyers who are handling those files," he said.
Part of the appeal will focus on Justice Clackson’s treatment of Dr. Adeagbo. The appeal document says the “judge’s comments in the trial gave rise to a reasonable apprehension of bias.”
In his written decision, Justice Clackson said the Nigerian-born medical examiner spoke with an accent and was sometimes hard 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.
Mr. Buckley said he had not expected the backlash to Justice Clackson’s written decision. He said he thought the judge had treated every witness fairly. “The concern the trial judge was having with things like enunciation was how do you have a fair trial when people are having trouble understanding what is being said? That has nothing to do with race,” he said.
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.
Editor’s note: (Oct. 16, 2019) An earlier version of this article was unclear in stating the charge.