CJC says judge still fit for bench after bias complaints about treatment of racialized witness

By Cristin Schmitz

Law360 Canada (January 19, 2023, 1:32 PM EST) -- The Canadian Judicial Council (CJC) has ended discipline proceedings against Alberta Court of King’s Bench Justice Terry Clackson, whose treatment of a Nigerian-born forensic pathologist and the latter’s evidence during a high-profile criminal trial in 2019, was “tainted by a reasonable apprehension of bias,” according to the Alberta Court of Appeal.

On Jan. 18, the disciplinary body for Canada’s 1,174 superior court judges issued a brief press release announcing that the chair of the council’s judicial conduct committee, British Columbia Supreme Court Chief Justice Christopher Hinkson, had “closed the matter,” following his review of complaints, including a letter signed by 42 doctors, lawyers and professors, raising concerns about Justice Clackson’s treatment in his reasons in R. v Stephan, 2019 ABQB 715, of expert Crown medical witness, Dr. Bamidele Adeagbo, a forensic pathologist.

Following that review, and “a number of actions Justice Clackson has taken since,” the CJC said “the Council has determined that the issues do not warrant any further intervention and has closed the matter.”

The council said in its announcement that the allegations against the judge “included that Justice Clackson acted in a manner that was discriminatory, and in a way that could be perceived as racist in his treatment of Dr. Adeagbo, a Nigerian-born medical doctor. It was alleged that Justice Clackson undermined the administration of justice through his use of words and apparent disregard for Dr. Adeagbo’s demeanor.”

The council said Justice Clackson told it that the language he used in his reasons for judgment were an attempt to summarize concerns and issued raised by the defence lawyers at the trial, but that “he accepts that these led to the perception that he was insensitive to the difficulties Dr. Adeagbo faced in communicating responses to questions put to him during the trial. Justice Clackson further accepts that he was insensitive to the fact that his comments could be seen as derogatory, both to the witness and to others, and has offered his sincere apology to Dr. Adeagbo as well as his assurance that he will strive to do better.”

The council said Justice Clackson also said that “he has always strived to be fair to all persons — including all who appear before him in court. He found it difficult to learn that he acted in a manner that gave the impression he had an unconscious, implicit, or subconscious bias against persons who may be marginalized in society. In his commitment to learn from this experience, he has consulted experts and has completed readings in the area of cultural sensitivity, will continue to take advantage of cultural competency courses offered by judicial educators, and has agreed to be mentored on a regular basis.”

Concluded the council, “Chief Justice Hinkson is satisfied that Justice Clackson has learned from this event and has therefore directed that the matter be closed.”

The complaints against Justice Clackson arose in the context of the high-profile judge-alone retrial of David Stephan and Collet Stephan on charges of failing to provide the necessaries of life to their 19-month-old son Ezekiel, who died of meningitis in 2012.

Justice Clackson acquitted both parents, who had been convicted by a jury at their first trial in 2016, and who had used herbal and naturopathic supplements to treat Ezekiel’s illness before seeking medical help near the end of the child’s life.

However, the Alberta Court of Appeal unanimously ordered a third trial, in part based on its acceptance of the Crown’s submissions that Justice Clackson made inappropriate comments regarding Dr. Adeagbo, who conducted the child’s autopsy, which gave rise to a reasonable apprehension of bias.

The Alberta Court of Appeal noted that “while the threshold for a reasonable apprehension of bias is high,” comments in Justice Clackson’s reasons, along with his interventions and comments at trial about Adeagbo, “when taken together and viewed in their context, would lead a reasonable and informed person to view the trial judge’s conduct as giving rise to a reasonable apprehension of bias”: R. v. Stephan, 2021 ABCA 82.

The record “confirms that, in making the comments he did about Dr. Adeagbo in his reasons, the trial judge was not merely repeating defence arguments,” the appeal court wrote per curiam.

“He began by confirming that Dr. Adeagbo’s education, training and experience qualified him to offer the relevant opinion. ... But he added that he also had to consider Dr. Adeagbo’s ‘communication and presentation’.”

“It was in this context that the trial judge made the challenged comments about Dr. Adeagbo’s manner of speaking,” the Appeal Court said. “While the trial judge indicated prior to the challenged comments that he was turning to the specifics of the defence arguments on a number of issues, including communication, it is clear from this record that the trial judge endorsed those criticisms. As stated by the trial judge, these included that the doctor’s ability to articulate his thoughts in an understandable fashion was severely compromised by his: garbled enunciation; failure to use appropriate endings for plurals and past tenses; failure to use the appropriate definite and indefinite articles; repeated emphasis of the wrong syllables; dropping his Hs; mispronouncing his vowels; and the speed of his responses.”

The trial judge also noted that even when the pathologist presented evidence in person “the problems I have identified, continued.”

“Read in context, the ‘problems’ he identified included the ones he set out regarding Dr. Adeagbo’s manner of speech,” the Appeal Court said. The trial judge expressly found that “all of those problems,” including the pathologist’s manner of speech, were relevant to both the admissibility of the doctor’s evidence and the weight to be given to it.

The Court of Appeal said this was wrong. “[E]vidence must be accepted or rejected for proper reasons,” the appeal panel admonished. “The manner of speaking of one of the witnesses is not in this category. Further, Dr. Adeagbo’s ‘communication and presentation’ had nothing to do with a core issue [raised by the defence]: whether Dr. Adeagbo was biased because he noted that Ezekiel had not been vaccinated. Not only are the trial judge’s comments about Dr. Adeagbo’s pronunciation and manner of speech irrelevant to the issues of admissibility and weight, but to an informed person, they raise a reasonable apprehension of bias,” the appeal court held. “They suggest the trial judge unfairly rejected Dr. Adeagbo’s evidence based on the form it took, including the doctor’s manner of speech, not its substance.”

If you have any information, story ideas or news tips for The Lawyer’s Dailyplease contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613-820-2794.

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