Court hears Crown’s appeal of David and Collet Stephan’s not guilty verdict

Crown Prosecutor Rajbir Dhillon launched the appeal on two grounds.

The first is that Clackson allegedly “pre-judged” an expert witness based on their accent and speech mannerisms and discounted the evidence given based on that.

The second is for Dhillon’s belief that the judge considered irrelevant factors for whether or not Ezekiel’s parents failed to provide the necessaries of life.

Pre-judging:

Dr. Bamidele Adeagbo was called to testify as a medical examiner and a member of the team who conducted the child’s autopsy.

He is originally from Nigeria and speaks with a heavy accent. He has practiced medicine for several years in the United States and Canada.

Dhillon claims that Clackson pre-judged Dr. Adeagbo based on his “command of the language” and did not accept the evidence given due to not being able to understand him.

Clackson wrote the following in his written decision in the retrial.

“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,”

Dhillon questioned how a jury would have received these remarks if the retrial had a jury. He believed it would have sent a message to the public that people who speak English as a second language or who are not strong speakers, in general, are not welcome to participate in the court system.

Dr. Adeagbo had been testifying via video from his office in the U.S. After his first day on the virtual stand, the Crown had suggested to the judge that Dr. Adeagbo be allowed to attend court in person to make it easier to understand him.

While the Crown did not specifically mention getting an interpreter, Dhillon told the appeals court that Clackson should have understood that it was an option.

According to Dhillon, Clackson declined both of these measures at the time, yet still brought up Dr. Adeagbo’s speech numerous times in his decision.

Defense attorney Jason Demers, however, offered a different perspective on the conduct of both Justice Clackson and Dr. Adeagbo.

He recalls the judge being very patient and fair with the medical examiner.

Demers claims the only reason Clackson brought up Dr. Adeagbo’s speech mannerisms is because David Stephan had mentioned it in court and the presiding judge has an obligation to address every concern.

He told the appeals court that Dr. Adeagbo was volatile, paced back and forth, often gave long-winded answers to questions, and had to be asked on more than one occasion to calm down.

Demers concluded by stating that any arguments of bias against Clackson with “sparse evidence” are “inflammatory and improper.”

Providing the necessaries of life:

Much of the discussions in the retrial centered around whether Ezekiel Stephan had suffered from bacterial meningitis or viral meningitis, and whether timely intervention would have guaranteed his survival.

“I have concluded that Ezekiel did have meningitis. The Stephans did not know the (sic) Ezekiel had meningitis but were alert to the possibility and monitoring for symptoms. The meningitis Ezekiel had was viral, and he did not die from meningitis, but from the lack of oxygen. Therefore, I have concluded that the Stephans are not guilty of the charge,” reads a portion of Justice Clackson’s decision.

Dhillon argues that, whether the meningitis was bacterial or viral is not relevant.

He said Ezekiel’s parents had a responsibility to seek the appropriate forms of medical care as soon as he showed signs of not feeling well, adding that this is what “any reasonable parent would do.”

Even if the child had survived, the charge of failing to provide the necessaries of life could still be applied as Dhillon claims David and Collet Stephan actively put their child’s life in danger.

Defense attorney Shawn Buckley retorted that, had the Stephans believed their child was in danger, they would have sought help sooner.

He says bacterial meningitis can “often sneak up on you”, and by the time serious symptoms start to show, it can already be too late.

At the time Ezekiel had been handed over to emergency medical personnel, he had not been breathing for over 11 minutes, but Buckley states that there is no clear answer on how long an infant can be deprived of oxygen before entering the “point of no return.”

The defense believes that if the ambulance was properly stocked with supplies that could create an airway in the young patient, they might have still been a chance that he could have recovered.

Demers adds that Section 215 of the Criminal Code of Canada, which deals with the necessaries of life, is not intended to punish parents who believe they did everything they could to take care of their child.

Following the hearing, a panel of appeal court judges have reserved their decision.

by David Opinko

Court hears Crown’s appeal of David and Collet Stephan’s not guilty verdict

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