Justice Clackson and his miscarriage of justice in the acquittal of David and Collet Stephan

A couple of weeks ago, I wrote about a major case of justice denied, namely the acquittal of David and Collet Stephan in the death of their child Ezekiel, as did Clay Jones Clay Jones. Both of us concentrated on the ruling issued by Justice Terry Clackson over two weeks ago and how it was a massive and obvious miscarriage of justice. Ezekiel, you might recall, was the 19-month-old son of David and Collet Stephan. He lived in Alberta with his parents David and Collet until his death from bacterial meningitis in 2012. He was a child who very likely would have lived had it not been for the fact that his parents were (and still are) heavily into alternative medicine. After he fell ill, his parents tried to treat him with “natural remedies” (many of which were made by David Stephan’s company), his wife at one point briefly consulting with a naturopath’s office, until, by the time they sought conventional medical care, Ezekiel was in extremis, at death’s door. Basically, Ezekiel had been ill for a couple of weeks and getting sicker and sicker, but the parents didn’t seek conventional medical care until he stopped breathing, which led them finally to call an ambulance. But it was too late. Ezekiel made it to the hospital, but ultimately died. Let me describe just how bad a miscarriage of justice Justice Clackson’s ruling.

As a result, David and Collet Stephan were tried and convicted in 2016 under Section 215 of the Criminal Code which deals with “failing to provide the necessaries of life”. David Stephan was sentenced to four months in jail, and his wife was ordered to spend three months under house arrest. Meanwhile, the Stephans’ appeal went on. (Because the decision to convict hadn’t been unanimous, the Stephans’ case could automatically be appealed to the Supreme Court of Canada.) At the time, I was actually somewhat surprised at the verdict in the first trial, as courts in the US and Canada appear to give parents wide—too wide—latitude for making decisions about what is best for their children, and great deference is generally granted to parental authority and parental “rights.” It is this deference that can cause a problem in protecting children from their parents’ belief in quackery when they become seriously ill. Before the verdict was announced, I had half expected that to happen in this case, the more so because David Stephan is a prominent member of his community, belonging to a family that runs a large nutritional supplement company, Truehope Nutritional Support. Of course, Stephan’s entire business and worldview were (and still are) inextricably linked to what happened, with his belief in “natural healing” having led to Ezekiel’s unnecessary death. That’s one reason why Dr. Jones characterized explained how Ezekiel’s death was in essence a “death by world view”. It truly was just that.

Consistent with the Stephans’ world view believing in quackery, reports from the trial indicated that David Stephan tried to use Truehope supplements to treat his son. As far as David Stephan’s business goes, Health Canada had once launched an unsuccessful court case in 2004 to stop the distribution of the company’s product Empowerplus, a product that the company claimed to be able to manage mental illnesses. The case ended in 2006 when the company was found not guilty of distributing the supplement without a drug identification number. Not surprisingly, the Stephans are antivaccine, too, and that quite possibly also had a role in Ezekiel’s death, as you will see.

Unfortunately, the 2016 Stephans’ conviction was overturned on appeal based on a technicality (if you want the gory details, which involved a conclusion that the jury hadn’t been correctly instructed before deliberating, go here), the Supreme Court of Canada ordered a new trial, and on September 19 the Stephans were acquitted after a trial before Justice Terry Clackson. Clay’s and my posts two weeks ago was about the expressed justified anger, dismay, and puzzlement over the judgment of Justice Clackson. As a CBC news report put it, the Stephans will face no responsibility.

Yes, the Stephans let their child suffer for days and finally die, thanks to their medical neglect, and they’re going free, although the Crown can appeal. Even worse, after the verdict they’ll now be heroes to the alternative medicine crowd in Canada (and, let’s face it, the world), for having been “falsely accused” of child neglect, being “persecuted” by the system, but finally having beaten the charges and found to be “innocent”. Yes, they’ll be heroes. Even worse still, David Stephan can go back to doing what he does best: Grifting in the service of his company’s Truehope supplements and making money by appearing at “natural health” expos, the latter being a revenue stream that his conviction had cut into severely, as expo organizers, facing very negative publicity, dropped him like the proverbial hot potato.

You might wonder why I’m writing about this case again, given that both Dr. Jones and I have covered it so recently. The answer is simple. When Dr. Jones wrote his post, Justice Clackson’s full ruling hadn’t yet been published. Now it has been, allowing me to examine in more detail the “reasoning” (such as it is) that led to what is one of the most head scratching, cringeworthy miscarriages of justice I’ve ever seen. At the time, news reports described Justice Clackson’s rationale thusly:

The judge ultimately sided with the defence’s medical experts in finding the boy had viral not bacterial meningitis and ultimately died of a lack of oxygen.

Remember now, this is a boy who at autopsy was found to have pus on his brain and an empyema (pus in the pleural cavity surrounding the lungs). You don’t get this from a virus, at least not in the brain. (You can, of course, get a bacterial pneumonia complicating a viral respiratory infection.) Also, as Dr. Jones described in an earlier post, by far the most likely diagnosis was haemophilus influenza, type B (HiB), to which, of course, Ezekiel was vulnerable because he hadn’t been vaccinated. (Indeed, although the medical examiner was unable to culture the HiB bacteria, PCR did apparently detect HiB DNA.) It’s just another indication how the parents’ world view not only predisposed Ezekiel to catch a deadly infection, but greatly diminished his chances of surviving that infection once he had caught it.

One thing that was really striking about Justice Clackson’s ruling was the language Clackson used to describe 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, which I discussed in depth a week ago. Basically, in language I’ve never seen in a ruling before, Justice Clackson expended a lot of verbiage criticizing Dr. Adeagbo’s accent and his attitude.

The Stephan retrial ruling

Now let’s look at the balance of Justice Clackson’s ruling itself in which he didn’t concern himself with how annoying he found Dr. Adeagbo’s accent and demeanor. The summary tells the tale, and it’s a horrible one:

[3] The evidence plainly establishes that Ezekiel had meningitis. The main issues in dispute are:

  • Whether he had bacterial or viral meningitis;
  • Whether his death was the result of meningitis, or the result of hypoxic injury;
  • Whether the Stephans knew he had meningitis; and
  • Whether knowing that, they ought to have sought medical intervention.

[4] I have concluded that Ezekiel did have meningitis. The Stephans did not know the 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.

Before I get into the weeds a bit more, let me simply say that the entire premise of Justice Clackson’s ruling is a steaming, heaping pile of fetid dingo’s kidneys. Basically, he’s buying into the Stephans’ nonsense that conflates the final, most proximate cause of death (hypoxia because the child had stopped breathing) with the cause of death (the meningitis that made Ezekiel so sick that he stopped breathing). How did Ezekiel get to that point? He got to that point because his parents didn’t take him to the doctor after he got very sick and instead watched him get worse. True, from previous testimony, we know that Ezekiel did make some improvements, but it’s not unusual in the case of a serious disease for the course not to be an unrelenting downward spiral. It is, however, obvious from previous court cases that Ezekiel’s course was, overall, a downward spiral, with occasional brief improvements. We can argue about how sick a child has to be before the parents have a duty to take him to a doctor, but we already knew quite clearly that not only did the Stephans at least strongly suspect that Ezekiel had developed meningitis, but that they had asked advice of a naturopath. Indeed, here’s testimony quoted in Judge Clackson’s ruling:

Q And during your conversation with Ms. Meynders, did she ever stress that meningitis was an urgent thing that you would have to take him to the doctors for immediately?

A I’m trying to recall our conversation of what she had said. I believe with the one that she was in contact with that few weeks ago was the bacterial, and she had expressed that with bacterial, it – well, if I remember right, she expressed that meningitis was hard to diagnose, and that the bacterial is more concerning than the viral. And when I was looking at the symptoms and reading on that page, it had — it said the same thing that– that she was implying.

Q And when you were reading about the page and comparing, I take it, you compared what Ezekiel was going through to what you found on the page; is that correct?

A Yes.

Q And how did Ezekiel stack up, if at all?

A So when looking at the symptoms, even on the viral meningitis, he just had that achy slash stiff, so, like, the tension of the flu, but he didn’t have any of the other symptoms on the viral. So in my mind, I’m thinking, Well, if it – out of the two, he would — he would be closer to have a viral meningitis rather than bacterial, but at that time, like, it was uncertain.

Q So why didn’t you take him to the doctor at that point?

A Because he didn’t really have any symptoms that was listed under the viral and the bacterial meningitis.

Then, as Dr. Jones has noted:

Two or three days later, Ezekiel was brought into the same naturopathic clinic where Dr. Tracey Tannis recommended a “tincture of echinacea.” According to a taped March 15th, 2012 interview of his father, Ezekiel was so stiff that they were unable to put him into his car seat, so they laid him flat on a mattress in the back of their vehicle for the ride to the clinic. According to more than one report, Dr. Tannis did not examine Ezekiel.

Neck stiffness is a sign of meningitis, and neck and spine stiffness so bad that the parents couldn’t put Ezekiel into his car seat should be an incredibly worrisome sign to parents that the child is very sick.

What about the issue of whether the meningitis was viral or bacterial? As Dr. Jones described in his earlier post, viral meningitis tends to be significantly less severe than bacterial meningitis and is rarely deadly in an otherwise healthy child. Even so, my first reaction was: Why on earth should it matter? Yes, bacterial meningitis is deadlier but also easier to treat because it can respond to antibiotics, and viral meningitis has to run its course. Seriously, though. It’s part of the Court’s “reasoning” based on its erroneous conclusion that Ezekiel “only” had viral meningitis that the parents weren’t neglectful in not taking him to a doctor or hospital? Judge Clackson should realize that supportive care, such as being placed in a pediatric intensive care unit (PICU), would have maximized Ezekiel’s chances to ride out the a severe case of viral meningitis, and would have allowed a bacterial meningitis to be properly treated.

The Court also ruled that the child died of “lack of oxygen”. Well, yes, that’s what we all die of! It’s basically the common final cause of every death on the planet! The real question should have been: What had caused Ezekiel to stop breathing leading to the “lack of oxygen” that killed him? It’s clear that it was bacterial meningitis! Again, Ezekiel’s death could have been prevented by putting him in the hospital, in the PICU if necessary, for supportive care up to and including mechanical ventilation if it were to become necessary plus appropriate antibiotics, assuming the meningitis was bacterial. Justice Clackson conflated the proximal cause of Ezekiel’s death with the overall cause.

Let’s look at how Justice Clackson came to the conclusion that Ezekiel had viral meningitis, as it reveals even more intellectual bankruptcy. First, he was annoyed by Dr. Adeagbo doing what any responsible doctor would do:

[23] Again, however, while concerning, distracting and unprofessional, none of those attitudes demonstrate a bias or partiality. Rather, all may be attributed to the fact that in Dr. Adeagbo’s opinion, Ezekiel so obviously died of bacterial meningitis that it is a complete waste of time to even consider anything else. Accordingly, those attitudes do not raise a realistic concern that Dr. Adeagbo is not an appropriate expert. Those attitudes are however, relevant in the Cost-Benefit Analysis.

Well, yes, the child had pus on the brain and in his pleural spaces, but, by all means, hearing the hoofbeats, Dr. Adeagbo should have looked for zebras! What do I mean? In medical jargon, a “zebra” is an unexpected, much less common diagnosis relative to the more common ones fitting a given clinical presentation. There’s a saying in medicine that goes something like this:

  • When you hear hoofbeats look for horses not zebras.
  • If you hear hoofbeats in the distance don’t expect a zebra.
  • When you hear hooves think of horses before zebras.

The idea is that common diagnoses are far more likely to explain appropriate clinical presentations than uncommon or rare diagnoses. Sure, there are times when doctors do have to go “zebra hunting“, but from the testimony from the previous trial that I’ve read (and this one), Ezekiel’s was not one of those cases, given the purulence on the brain and in the pleural cavity, plus the presence of HiB bacterial as documented using PCR. In this clinical setting, by far the most likely diagnosis was HiB pneumonia and meningitis, with viral meningitis very much less likely.

Unfortunately, Justice Clackson let Dr. Sauvageau cast doubt on that diagnosis:

[47] Dr. Adeagbo testified that a sample of the right lung tissue across the empyema noted in the pleural cavity was taken and the Gram stain process disclosed Gram negative bacilli which is consistent with bacterial infection. All of which confirmed his opinion that the meningitis had been caused by bacterial infection. He plainly believed the empyema was part of the same bacterial infection which caused the meningitis.

[48] He ignored the presence of enterovirus in the nasal swab/wash. Supposedly, chalking that up to something common in us all.

The pleural cavity is normally sterile. There should be no bacteria there. Moreover, empyema literally means pus in the pleural cavity. As for enterovirus? That’s such an obvious deflection that I think I hurt the bridge of my nose from driving my glasses into it from all the facepalming that I did.

Then there’s this:

[50] Dr. Adeagbo also confirmed his diagnosis of bacterial meningitis by the presence of certain types of white blood cells. Again, Dr. Sauvageau came to a different conclusion. Although her evidence in the 2016 trial on this subject appears less certain then she was before me, I accept her conclusion that the relative prominence of lymphocytes excludes bacteria as the agent of infection.

[51] In result, I was left unconvinced that the meningitis was bacterial.

[52] Dr. Sauvageau explanation for why the meningitis was viral is consistent with what was observed on autopsy, the history of Ezekiel’s illness, the radiology reports, and was logically compelling. As well, Dr. Adeagbo said hemophilus influenza, which is the bacterial agent he concluded had caused the meningitis, is very rare. That fact, plus the fact that the vast majority of meningitis cases are viral in origin (para 62 infra), further supports Dr. Sauvageau’s conclusion.

[53] In result, I am satisfied the meningitis was viral.

Yes, lymphocytic meningitis in the absence of bacteria (so-called aseptic meningitis) is usually viral. However, in the presence of pus on the brain, that consideration goes out the window. Moreover, that lymphocytes predominated does not rule out bacterial meningitis, as it took me all of a minute to find Googling and doing PubMed. For instance:

The CSF findings typical of aseptic meningitis are a relatively low and predominantly lymphocytic pleocytosis, normal glucose level, and a normal to slightly elevated protein level (Table 5). Bacterial meningitis classically has a very high and predominantly neutrophilic pleocytosis, low glucose level, and high protein level. This is not the case for all patients and can vary in older patients and those with partially treated bacterial meningitis, immunosuppression, or meningitis caused by L. monocytogenes. It is important to use age-adjusted values for white blood cell counts when interpreting CSF results in neonates and young infants. In up to 57% of children with aseptic meningitis, neutrophils predominate the CSF; therefore, cell type alone cannot be used to differentiate between aseptic and bacterial meningitis in children between 30 days and 18 years of age.

And it didn’t take me long to find a paper describing acute bacterial meningitis with lymphocyte predominance in 14 out of 103 cases of documented bacterial meningitis, noting that cerebrospinal fluid lymphocytosis was “significantly more common in neonates and in those without meningismus, but occurred in all ages and without any clear identifying clinical characteristics.” (Meningismus refers to the symptoms of meningeal irritation, like stiff neck.) The authors concluded, “It [CSF lymphocytosis] is therefore of little value in differentiating bacterial meningitis from viral, fungal, and tuberculous meningitis.” A review article notes that “WBC differential may be misleading early in the course of meningitis, because more than 10 percent of cases with bacterial infection will have an initial lymphocytic predominance and viral meningitis may initially be dominated by neutrophils.” The Royal Children’s Hospital in Melbourne, for instance, explicitly states that a “predominance of lymphocytes does not exclude bacterial meningitis.”

Yet, risibly, Justice Clackson believed Dr. Sauvageau’s testimony over that of Dr. Adeagbo and even accused Dr. Adeagbo of confirmation bias:

[25] I accept that insight as a reasonable proposition which can be manifested by an expert in the steps he or she takes to defend or explain the opinion reached. In this case, I prefer to apply the label confirmation bias because the cross-examination of Dr. Adeagbo proceeded on that footing. In the cross-examination of Dr. Adeagbo, it was established that he was sure from the beginning that Ezekiel had died from bacterial meningitis. The testing done, post autopsy, was done to confirm that conclusion. There was no specific testing done to rule out viral or fungal causes for the meningitis. Despite records which could tend to support hypoxic injury and hyponatremia, no specific steps were taken to confirm or refute either possibility. These actions are consistent with Dr. Adeagbo’s assertion and attitude, that Ezekiel’s death was a crystal clear case of bacterial meningitis. He had no doubt on the subject. In that circumstance, testing for anything other than the bacteria which caused the meningitis was a waste of time. Dr. Adeagbo said, and I accept that his additional efforts to identify the bacterial agent were not done to support his opinion but done because he wanted to identify the infectious agent as he felt it was his duty to do so in the discharge of his responsibilities to the Stephans and the general public. The duty to keep them safe from a similar fate.

I’m sure any other physicians out there, especially pathologists, are laughing (or crying, or both) at this paragraph. This is how medicine is done. If clinically the case is crystal clear, as it was in Ezekiel’s case, it is a waste of time and resources to do a lot of low yield testing. Moreover, by letting himself get drawn into the “viral versus bacterial” weeds, Justice Clackson again ignored the true cause of Ezekiel’s death: The parents waited until far too late to take him to a doctor, and that’s why he died. Trying to diagnose him on the Internet isn’t enough. Seeking advice from a naturopathic quack (who didn’t even examine him) doesn’t count. At the very latest, when Ezekiel became so stiff that the Stephans couldn’t put him in his car seat, they should have taken him to the nearest emergency room.

But what about all the incriminating things that David and Collet Stephan said to police and first responders, as documented in the first trial? Judge Clackson basically made them all disappear by saying the Stephans were under stress:

[81] That is in stark contrast to the various statements they gave to police and medical staff about their observations and actions.

[82] I have concluded that I cannot rely on any of the statements to the medical staff or the police beyond what Mr. Stephan and Ms. Stephan told 911 Dispatch, the paramedics and Dr. Clark. All of those recorded exchanges are consistent with the circumstances I have just described and the Stephans’ evidence before me.

[83] I do not have evidence as to why honest people commit themselves to false facts, but the case reports confirm it can occur.

[84] Perhaps, as the defence has argued, the combination of stress, suggestion, confusion, lack of sleep, lack of nourishment and the overpowering urge to help save their child, all contributed to the content of the statements they made, in those fateful six days. In any event, I am of the view that those statements are not reliable.

How convenient for the Stephans. Not only did Judge Clackson buy their false narrative and let their obfuscations lead him astray, but he basically magically waved away all their self-incriminating previous statements to police and others about how sick Ezekiel had been.

Reading through the transcript, I got the distinct impression that Clackson had decided that he really didn’t like Dr. Adeagbo and didn’t want to accept his testimony, preferring that of Savageau instead. There are whole sections on voir dire and “cost-benefit” analysis in which he came up as many dubious reasons to discredit and discount Dr. Adeagbo as possible. Why? Was it racism? Possibly. It could also have possibly been because her testimony wasn’t technically beyond his ability to comprehend or because he just didn’t like Dr. Adeagbo’s manner, which he made abundantly clear in a way that stands out strikingly. This ruling is so bad that I really do think that Justice Clackson was not unbiased; he bent over backwards to find a way to rule for the defendants.

This isn’t the only time Justice Clackson has come under fire, either. He has been the subject of media attention and criticism since 2018, when the Supreme Court ordered a retrial after finding that Justice Clackson had relied on rape myths and stereotypes when acquitting a stepfather of sexual abuse charges:

The man, known only by the initials A.R.J.D. ( his name and his stepdaughter’s were under a publication ban) had initially been acquitted at trial by Alberta Court of Queen’s Bench Judge Terry Clarkson.

Clarkson let him go based on his assessment the stepdaughter didn’t do enough to avoid being alone with A.R.J.D, and didn’t display any changes in behaviour such as experiencing nightmares or losing interest in school.

Why is Justice Clackson still a judge?

During my previous discussion, I discussed the worship of “parental rights” that leads to tolerance of medical abuse and and antivaccine neglect. We can see this misguided deference to “parental rights” writ large in Justice Clackson’s decision:

[100] It is perhaps helpful to explain this result somewhat differently. Ezekiel was sick. Section 215 of the Criminal Code does not impose a duty to seek medical attention for every sick child. For that duty to arise there must be a risk to the child. In this case, the risk is particularized as a risk to Ezekiel’s life. The cause of that risk is further particularized as resulting from meningitis.

[101] The evidence before me does not establish that the viral meningitis Ezekiel had constituted a risk to his life. Therefore, the duty to seek medical attention did not arise.

[102] Did the duty to seek medical attention arise because Ezekiel had meningitis and his parents were aware that it was possible he had some type of meningitis and aware that some meningitis can be life threatening?

[103] One suspects that many parents when faced with the scenario which presented itself to the Stephans on March 12 would have been perfectly justified in feeling their child needed medical attention.

[104] However, as I said when addressing what the Crown must prove in Element 6, this is not a civil action. The objective analysis of what prudent parents in the circumstances would have done are captured in the other elements of this offence. The duty to act only arises on this charge, as framed, if medical intervention would have saved Ezekiel’s life. That it could have saved his life was not, in my view, sufficient.

This time, the facepalming not only bruised my nose, but it broke my glasses. I wonder if I can bill Judge Clackson for a replacement pair.

Note the argument, though. Justice Clackson seems to be saying that if there was any doubt that getting a child to a doctor would have saved his life, then that’s “reasonable doubt” and that Crown has failed to prove its case. I would counter: There is no reasonable doubt that failing to take Ezekiel to a doctor dramatically lowered his chances of survival to near zero. Even though I’m not a lawyer, even I get the feeling that Justice Clackson’s verdict appears to have been made on a matter not before the court, death as a result of negligence, not the actual charge of failure to provide the necessaries of life.

Also, the law does not impose a duty to seek medical attention for every sick child? Perhaps not—but only if the illness is obviously minor to a reasonable layperson. That was clearly not the case here. Ezekiel was, as we say in the biz, sick as snot and circling the drain. Not to take him for medical evaluation and to opt for treating him with witchcraft was child abuse at its most naked, in my not-so-humble opinion. As for the claim that Ezekiel died of oxygen deprivation because the first ambulance didn’t have the right equipment, it was pretty clear from the medical evidence that it almost certainly wouldn’t have mattered if it had. By the time the parents called EMS, Ezekiel was almost certainly too far gone to be saved. Even if he could have been saved, what about the suffering and long-term sequelae he would have suffered from bacterial meningitis treated too late?

The bottom line is that Justice Terry Clackson issued an utterly nonsensical judgment so divorced from science, medicine, and reality that I would laugh at it if the consequences weren’t so horrific. He believed the testimony of an unqualified doctor who never actually did the autopsy on Ezekiel and used only the autopsy report and the audio recordings of the 911 call and the EMS response over that of a forensic pathologist to acquit David and Collet Stephan. His ruling will both allow David Stephan to continue his grift peddling his useless supplements, which are promoted to treat real diseases and whose use are likely to lead to preventable deaths, and, worse, will likely demoralize child protective service officials and prosecutors, who are likely to think twice prosecuting medical neglect. There will be blood on Justice Clackson’s hands.

I hope that the prosecutors appeal. This ruling must be appealed. Unfortunately, I fear that the prosecutors will look at the multiple legal proceedings, the fact that it’s now seven years since Ezekiel’s death, and public opinion, and decide it’s not worth it.

And how is it that Justice Clackson is still a judge again?