With a grant deadline and other tasks fast approaching, I didn’t have time to construct my usual 2,000+ word magnum opus for today. However, last night I became aware of a new development in the case of Ezekiel Stephan, who in my opinion died of medical neglect and whose parents were tried for tha neglect but acquitted in a head-scratchingly bad and cringeworthy decision that I just had to comment on briefly. As you recall, I discussed the case a week ago, specifically the horrible ruling that is so wrong on both the evidence and science. Well, the ruling is out now, and it’s even worse than I had described based on the news accounts. Because I don’t have time to delve in detail into the horribly bizarre reasoning by Justice Terry Clackson’s decision. I reserve that for (probably) my not-so-super-secret other blog on Monday. In the meantime, let’s take a look at Clackson’s characterization of the Crown’s expert witness, Dr. Bamidele Adeagbo, a former medical examiner in Calgary who testified that Ezekiel’s autopsy showed Ezekiel had died from bacterial meningitis. It was so bad that there was a complaint of racism:
A group of professors has sent a six-page letter to the body that oversees federally appointed judges, saying language used in a recent ruling that acquitted two parents in the death of their toddler could be perceived as racist.
“We believe that Justice (Terry) Clackson’s choice of words is inappropriate, shocks the conscience, and speaking for ourselves, undermines our confidence in the administration of justice,” says the letter to the Canadian Judicial Council and signed by 42 professors of medicine and law from across Canada.
Yes, Dr. Adeagbo is African, Nigerian specifically:
In his ruling, Clackson devotes an entire section to complaining about the way Adeagbo spoke. He says that he is, in part, summarizing the concerns the defence had about Adeagbo’s expertise as a witness but also that he had concerns with the doctor’s garbled enunciation, dropping his Hs and mispronouncing vowels, and his failure to use the appropriate definite and indefinite articles and correct endings for plurals and past tenses.
“Justice Clackson harshly mocked Dr. Adeagbo’s manner of speech and accented English, and thereby inappropriately implicated his national or ethnic origin as a person of African roots,” say the professors in their complaint. “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…”
While Clackson concludes, in the end, the way Adeagbo spoke had no real effect on his credibility as a witness, the letter’s signatories say the judge “formed an inappropriate view that one’s spoken expression, as rooted in one’s national or ethnic origin, is relevant to the weight of one’s testimony.”
If Dr. Adeagbo’s accent as a non-native speaker of English was “irrelevant” to how Justice Clackson viewed his credibility as a witness, then why did Clackson spend so much verbiage basically snarking on his accent? Let’s go to the ruling itself:
Dr. Adeagbo’s evidence was replete with technical medical jargon. His vocabulary was extensive. 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; his dropping his Hs; mispronouncing his vowels; and the speed of his responses. Inaddition, his answers were not always responsive and he would on occasion embark upon a mission to educate the parties and the Court. As a result, there were many instances when it was necessary to have Dr. Adeagbo: repeat his answers; slow down his delivery; focus on the question asked; and accept that, despite our ignorance, the question asked need to be answered. The Transcripts of his testimony are replete with many examples of the foregoing. All of this was exacerbated by the use of a video link as an accommodation to Dr. Adeagbo. However, even when present in person, as he was the final two days of his testimony, the problems I have identified, continued. Nevertheless, the profound difficulty all the participants experienced in comprehending Dr. Adeagbo’s evidence, does not form a basis for a realistic concern that he was biased or partial. In my view, all of those problems are best considered in the Cost-Benefit Analysis and, if his testimony is admitted, in the weight to be given to his evidence.
How nice of Clackson to conclude that his difficulty with English doesn’t mean that Dr. Adeagbo was biased. In any event, does anyone think that Justice Clackson would have written a paragraph like the one above if Dr. Adeagbo were white and had trouble with English because he came from a European country and English was his second language?
Dr. Clackson doesn’t stop there, though:
 Dr. Adeagbo demonstrated all of the following behaviours and attitudes over the six days of his testimony. He was calm, rationale, reasonable, arrogant, petulant, exasperated, combative, argumentative and angry.
 Those attitudes were demonstrated not just verbally but also in Dr. Adeagbo’s movements, body language and physical antics. Again, these behaviours were more prevalent during the video-link presentation. Unfortunately, the Transcript does not adequately capture some of the behaviours I have described. Suffice to say that they were not the behaviours usually associated with a rational professional imparting opinion evidence for the benefit of the Court.
Look, I get it. Dr. Adeagbo might not have been the best witness on the stand. I also feel for him. I’m sure being cross-examined by David and Collet Stephan’s lawyers was painful, given how they’ve tried to twist the science and evidence into pretzels of pseudoscience and conspiracy theories. I’m also puzzled. Dr. Adeagbo was a medical examiner. Surely he must have testified in dozens or even hundreds of cases. That’s part of the job of a medical examiner, to be the Crown’s expert witness on the cause of death. Has any other justice ever complained about him like this before? In any case, I can totally understand why he might have gotten frustrated, but obviously wish he hadn’t. Even so, I have a hard time not strongly suspecting that Justice Clackson is racist, given how much verbiage he expended snarking on Dr. Adeagbo’s difficulty with English and his “uppity” manner and how he believed the risibly ridiculous testimony of the defense’s primary expert witness, Dr. Anny Savageau, instead. Not coincidentally, she is white.
Once I get a chance to go through the whole ruling, I’ll post a more detailed analysis of it next week, either here or on my not-so-super-secret other blog. Justice Clackson’s “reasoning” (if you can call it that) is even worse than I described last week. It’s so bad that I really have to wonder if Justice Clackson was biased either for the Stephans or against Dr. Adeagbo in some way.