David Stephan and his wife Collet Stephan arrive at court on Thursday, March 10, 2016 in Lethbridge, Alberta. THE CANADIAN PRESS / David Rossiter

CALGARY - The Crown says an Alberta judge showed bias against a medical expert last year when he acquitted a couple on trial in the death of their ill son, but the defence says the court process was fair.

Prosecutors asked the Alberta Court of Appeal on Thursday to overturn the not guilty verdict in the case of David and Collet Stephan.

The parents were accused of not seeking medical attention sooner for 19-month-old Ezekiel, who died in 2012. The Stephans testified they thought their son had croup and that they used herbal remedies to treat him.

Last September, a Court of Queen's Bench judge acquitted them of failing to provide the necessaries of life in their second trial on the charge.

Justice Terry Clackson accepted the testimony of a defence expert, who said the toddler died of a lack of oxygen, not bacterial meningitis as reported by Dr. Bamidele Adeagbo, the original medical examiner.

Crown prosecutor Rajbir Dhillon said Clackson showed bias for a number of "insulting and improper" comments throughout the trial about the verbal skills of Dr. Adeagbo, who was born in Nigeria.

"This ground is about whether the way a witness speaks should influence the weight of their evidence or their ability to participate in our court system," Dhillon said Thursday.

"The trial judge's comments suggest that it should have an influence. But a witness should not be judged on their elocution and they should not have their evidence prejudged based on the way they speak.

"There is a reasonable apprehension that the trial judge did both of these things with regard to the evidence of Dr. Bamidele Adeagbo."

Dhillon said Clackson made it clear that he would give less weight to the evidence because he had difficulty understanding Adeagbo's testimony.

In his decision last September, Clackson noted that Adeagbo spoke with an accent and was difficult to understand.

"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,'' Clackson wrote.

The judge also called out Adeagbo for "body language and physical antics ... not the behaviours usually associated with a rational, impartial professional imparting opinion evidence."

Dhillon said those comments would lead a regular observer to think that the judge consciously or unconsciously didn't treat Adeagbo's evidence fairly.

Jason Demers, one of the lawyers representing the Stephans, told the Appeal Court that criticism of Clackson and his comments are far reaching and could potentially damage the judge, the judicial system and the multicultural community.

"Justice Clackson ran a completely fair trial. His comments, in our submission, were appropriate, they were proper," said Demers.

"To advance an argument in support of bias or an apprehension of bias with the sparse amount of evidence currently before this court is inflammatory and improper."

But Alberta Chief Justice Catherine Fraser questioned some of Clackson's comments.

"My question is what relevance does communication style, enunciation, language, syntax, mispronouncing vowels ... what relevance does any of that have to the question of admissibility of evidence?" Fraser asked.

A jury convicted the Stephans in 2016, but the Supreme Court of Canada overturned that verdict and ordered a second trial.

After Clackson's acquittal, dozens of medical and legal experts filed a complaint with the Canadian Judicial Council, alleging he made comments about Adeagbo that could be perceived as racist.

The Crown also argued Thursday that the judge erred in forcing it to prove whether timely medical treatment would have saved Ezekiel's life.

The Appeal Court reserved its decision.

This report by The Canadian Press was first published June 11, 2020

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