David and Collet Stephan

By Lara Fominoff

Admissibility Arguments

Stephan trial hears arguments to determine admissibility of medical examiner’s testimony

Aug 6, 2019 | 4:19 PM

LETHBRIDGE, AB – Calling Dr. Bamidele Adeagbo’s testimony flippant and arrogant; at times defensive, rude, and unintelligible – Stephan Defense lawyer Ingrid Hess told Justice Terry Clackson those qualities are some of the concerns that should make his evidence inadmissible.

Adeagbo was the medical examiner who performed the autopsy on 19-month old Ezekiel after he died in March 2012. He concluded the child died from bacterial meningitis and a lung infection. Even though the autopsy was performed shortly after death, a final report was not completed for seven months.

The doctor, who now works in the U.S., has testified both via CCTV from Indiana, and in person in Lethbridge for a total of seven days. So far, his testimony has not been admitted into the trial proper.

Defense Arguments Against Admissibility

Hess, acting on behalf of Collet Stephan, told the court that trying to understand Adeagbo’s evidence and the way it was delivered made his testimony troubling.

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She told Justice Clackson that on a basic level – especially when testifying via CCTV – it was extraordinarily difficult to decipher certain words and explanations; not just because he has a thick accent, but because “He rambles. His use of punctuation is very challenging.”

She then cited about a dozen instances where either the judge, court reporter, or someone cross-examining him had difficulty making out sentences, words and meaning, calling some of them “hardly intelligible.”

That, Hess argued, could affect the ability of the Defense to do its job and could impact the entire trial.

Mention was also made in Adeagbo’s autopsy and cause of death reports that Ezekiel was not immunized and that his parents used herbs to treat his illness. While Hess told the court it showed a bias that he had a reason to want to advance a social goal of immunizing children, Justice Clackson questioned whether that also showed that Dr. Adeagbo was being pro-active and including the information in case it was questioned at another point in time.

Adeagbo believed the toddler died of bacterial meningitis because of his own bias towards non-immunization, argued Hess. To consider other possibilities was pointless. “He seems to rejoice it’s this classic meningitis that he expects,” she said. However, he did not provide satisfactory responses to why he didn’t test the child’s spinal fluid, empyema (lung infection) or brain materials for viruses.

Hess also told the court that the doctor’s rude, flippant, arrogant and defensive responses wholly and completely detracted from his evidence.

“For someone who testified 30 times, his professionalism is lacking,” she said.

She concluded by telling the court that just because Adeagbo testified he was objective doesn’t mean he was. It was simply not good enough. It had to be proven.

“I worry, and I ask you to worry as well.”

David Stephan also briefly argued on his own behalf that he believed Adeagbo was writing a distorted history of his son’s illness and that created a distorted bias.

He told the judge reports were written with few of the medical files, and that he was not thorough in trying to obtain the toddler’s history prior to writing his reports.

Crown Argues in Favour of Admitting Testimony

Just because Adeagbo was difficult to understand at times and he formed his opinion on Ezekiel’s cause of death quickly, does not mean he was wrong, or that his testimony should be disregarded, said Crown Prosecutor Britta Kristensen.

Adeagbo took photos, was very concerned about the child’s right lung and brain, and tested other organs including the heart and liver. He then sent those samples for further investigation which determined his initial diagnoses were correct. He also explained his choices and had the information to back up the results.

Kristensen explained that the former Calgary medical examiner had been qualified 30 times in Alberta courtrooms in a variety of cases and deaths. His qualifications and expertise made him a reliable witness, even if clarification was needed at times. At the end of the day, he made himself understood and his specialized knowledge was not diminished.

He did not blindly reject defense notions about viral meningitis and did acknowledge some similarities when questioned about the two illnesses, however his conclusion was that the child died of bacterial meningitis.

The time for extensive testimony over the course of seven days, the resources, and court costs were also something to seriously consider, she told Justice Clackson.

On the subject of bias, Kristensen said there was no suggestion that the doctor’s opinion changed as a result of personal bias. He knew the Stephans may consider themselves sovereign, or fundamentalist Mormon, however that did not play into his medical diagnosis.

“He goes where science tells him,” said the Crown.

Justice Clackson will have his decision ready Aug. 26.

Case History

David and Collet Stephan are each charged with one count each of failing to provide the necessaries of life, after their 19-month old son Ezekiel died of meningitis in March 2012.

This is the second trial for the couple, who were originally found guilty. However, they appealed the decision, and in May 2018 the Supreme Court of Canada ordered a new trial for the couple, citing incorrect instruction from the judge to the jury during their first trial. The proceedings underway now are judge-alone.