September 26, 2019

Mr. Norman Sabourin

Executive Director and Senior General Counsel
Canadian Judicial Council
By email: [email protected]

Dear Mr. Sabourin:

RE: The Honourable Mr. Justice Terry D. Clackson

Introduction:

We are concerned about the conduct of the Honourable Mr. Justice Terry D. Clackson of
the Court of Queen’s Bench of Alberta in the case of R v Stephan, 2019 ABQB 715.
What follows are strictly allegations, which we appreciate must be investigated and
substantiated in the Canadian Judicial Council’s process, and to that end please take this
letter as a formal complaint and request for investigation.

The Judge’s Word Choice in the Decision:

In this prosecution, which has gained notoriety because of the tragic death of a child, the
Crown had reason to call upon a medical examiner, Dr. Bamidele Adeagbo, to testify on
the medical condition of the deceased.

Upon a voir dire, the Crown sought, successfully, to qualify Dr. Adeagbo as a medical
expert. Justice Clackson stated at paragraph 30 of his reasons that he did “not have any
realistic concerns with respect to bias, independence or impartiality,” and he accepted at
paragraph 42 “that Dr. Adeagbo is a forensic pathologist and entitled to offer opinion
evidence in that discipline.”

But in reading Justice Clackson’s reasons, he makes a number of ad hominem attacks on

Dr. Adeagbo which lack a judicial mien, and in which some may perceive racism. In
particular, 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.

For instance, at paragraph 20, Justice Clackson writes:

“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; dropping his Hs; mispronouncing his vowels; and the speed of his
 responses. In addition, 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 needed to be answered.”

Although Justice Clackson was annoyed by Dr. Adeagbo’s accent and manner of speech,
he rightly concluded that this “does not form a basis for a realistic concern that he was
biased or partial”. But Justice Clackson unfortunately concluded that, short of excluding
Dr. Adeagbo’s evidence, it should be given less weight for the reasons outlined above.
As Justice Clackson concludes at para. 20:

“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 is [sic]
evidence.”

With respect, it is hard to understand how a witness’s accent or manner of speech—the

“mispronouncing” of vowels, or laying emphasis on “the wrong syllables”—legitimately
affects credibility, reliability, and therefore the forensic weight of one’s testimony.
Whether a medical expert witness says “tom-AY-to” or “tom-AH-to”, for example, is not
probative of the weight of his evidence. Yet in attaching significance to accent and
manner of speech, which are immaterial to the substantive evidentiary or legal issues at
trial, Justice Clackson 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.

Justice Clackson also observed that the challenges of accent and manner of speech he
observed “were exacerbated by the use of a video link as an accommodation to Dr.
Adeagbo”. This may well be true, but even if so, it is neither Dr. Adeagbo’s fault, nor
reason to spotlight that he received accommodation (especially if that accommodation
was due to reasons known in human rights law).

Justice Clackson also commented, more than is prudent, on Dr. Adeagbo’s appearance.
After faulting his attitude at trial, Justice Clackson wrote at paragraph 22:

“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, impartial
professional imparting opinion evidence for the benefit of the Court.”

With respect, it is strange that a witness, whose medical expertise and qualifications the
Court has accepted, would be faulted for the appearance of his “body language and
physical antics”. The latter word especially is baffling and belittling—which “antics”?
Contrary to what he writes, Justice Clackson does not further describe the behaviours that
offended him, but he reasoned that these aspects of Dr. Adeagbo’s physical appearance

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imposed a “cost” that is “relevant to the Cost-Benefit Analysis” that the Court conducted
(see paragraphs 22 and 40).

We have no reason to question the ability of Dr. Adeagbo to testify in a manner that is
useful to the Court. He testified in the first trial of this matter, during which the jury
listened to him without apparent comment on his communication or attitude (see R v
Stephan, 2016 ABQB 319). He has also been accepted as an expert in the Alberta Court
of Queen’s Bench in other criminal matters (see R v MacLeod, 2018 ABQB 520). To the
best of our knowledge, the critiques Justice Clackson levied at him have not been cause
for previous complaint by any other judge.

Equality Concerns:

We believe that Justice Clackson’s choice of words is inappropriate, shocks the

conscience, and speaking for ourselves, undermines our confidence in the administration
of justice. Judges have a particular responsibility to the law, and to be seen upholding its
fair administration. We do not believe that responsibility was met.

In particular, s. 15 of the Canadian Charter of Rights and Freedoms protects the equality
of every individual before and under the law—including in Court—without
discrimination as to grounds of national or ethnic origin and race. We lack confidence
that Justice Clackson in his written reasons viewed or portrayed Dr. Adeagbo in the same
manner that he would a similarly qualified expert witness whose origins were pur laine
Canadian, rather than African.

Several of the principles in the Canadian Judicial Council’s Ethical Principles for Judges
appear to be relevant to this complaint. In particular, the second Equality Principle states:

“Judges should strive to be aware of and understand differences arising from, for
example, gender, race, religious conviction, culture, ethnic background, sexual
orientation or disability.”

This is clearly an example where a judge has failed to be aware of and understand
differences arising from a non-Canadian culture and ethnic background, because
differences of accent, diction, and dialect formed the basis for an ad hominem attack on
Dr. Adeagbo and questioning the weight of his testimony.

Also in that vein, the first Equality Principle states:

“Judges should carry out their duties with appropriate consideration for all
persons (for example, parties, witnesses, court personnel and judicial colleagues)
without discrimination.”

We are of the view that Justice Clackson acted discriminatorily. Canada is a diverse,
multicultural society, and home to many persons of foreign origin whose dialects of
English are not “standard” Canadian, so to speak. It is hard to imagine that if Dr.

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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 of
“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”.

It is striking that Justice Clackson did not levy similar critiques against the opposing
medical expert in the case, Dr. Anny Sauvageau, who is Québécoise and who in public
addresses speaks with a French Canadian accent (see https://youtu.be/S2XTT3tdIKQ).
Having accepted that both Dr. Adeagbo and Dr. Sauvageau were qualified medical
experts, it is difficult to avoid the inference that Justice Clackson in his written reasons
treated a witness with a French Canadian accent more favourably than a witness with an
African accent. This is troubling, when of course every person appearing before a court
of law deserves to be treated with respect.

Request:

We please ask the Council to conduct an appropriate investigation, and to apply

proportionate disciplinary measures if warranted.

Of course, we leave it to the Court of Appeal, if it is called upon, to decide whether

Justice Clackson’s approach gives rise to an appealable error.

Respectfully submitted,
(names in alphabetical order; contributing authors are denoted with a *)

Dr. Pauline Alakija (University of Alberta, Forensic Pathologist, Clinical Professor,

Faculty of Medicine)

Professor Michel Alary (University of Laval, Faculty of Medicine)

Professor Amir Attaran* (University of Ottawa, Faculty of Law & Faculty of Medicine)

Professor Reed Beall (University of Calgary, Cumming School of Medicine)

Dr. Laurence Bernard (University of Ottawa, Faculty of Medicine)

Dr. Susan Bornemisza (University of Calgary, Faculty of Medicine)

Mr. Pierre-Alexandre Cardinal (McGill University, Doctor of Law Candidate)

Professor Gideon Christian (University of Calgary, Faculty of Law)

Professor James A. Dickinson (University of Calgary, Department of Family Medicine

and Community Health Sciences)

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Dr. Anne Doig (Past President, Canadian Medical Association)

Professor Christopher James Doig (University of Calgary, Cumming School of Medicine)

Dr. Catherine Dubé, (University of Ottawa, Faculty of Medicine)

Professor David Evans (University of Alberta, Department of Medical Microbiology &

Immunology)

Dr. Angel M. Foster (University of Ottawa, Faculty of Health Sciences)

Professor D. B. Gregson (University of Calgary, Departments of Pathology and

Laboratory Medicine, and Medicine)

Professor Juliet Guichon* (University of Calgary, Cumming School of Medicine)

Professor Omar Ha-Redeye (Ryerson University, Ted Rogers School of Management)

Mr. Adam Houston* (University of Ottawa, Doctor of Law Candidate)

Dr. Kimberley Kelly (University of Alberta, Faculty of Medicine and Dentistry)

Dr. Jeff Kwong (University of Toronto, Faculty of Medicine and Dalla Lana School of
Public Health)

Dr. Noni MacDonald (Dalhousie University, Professor of Paediatrics - Infectious

Diseases)

Dr. Janine McCready (University of Toronto, Faculty of Medicine)

Professor Allison McGeer (University of Toronto, Faculty of Medicine)

Professor Matthew S Miller (McMaster University, Faculty of Health Sciences)

Dr. Ian Mitchell (University of Calgary, Cumming School of Medicine, Professor

Emeritus)

Dr. Srinivas Murthy (University of British Columbia, Pediatric Intensive Care, BC

Children's Hospital)

Professor Delphine Nakache (University of Ottawa, Faculty of Law)

Professor Chidi Oguamanam (University of Ottawa, Faculty of Law)

Professor Obiora Okafor (York University, Osgoode Hall Law School)

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Ms. Brieanne Olibris (University of Ottawa & University of Adelaide, PhD Candidate)

Professor Darren O’Toole (University of Ottawa, Faculty of Law)

Professor John Packer (University of Ottawa, Faculty of Law, and Director of the Human
Rights Research and Education Centre)

Dr. Stacey Page (University of Calgary, Department of Community Health Sciences,

Cummings School of Medicine)

Dr. Samara Perez (Clinical Psychologist, Founder and Clinical Director, Mont Royal
Psychology)

Ms. Katline Racine (University of Ottawa, LLM Candidate)

Professor Harriet Richardson (Queen’s University, Queen's Cancer Research Institute)

Dr. Susan Richardson (University of Toronto, Department of Laboratory Medicine and

Pathobiology, Professor Emeritus)

Dr. Margaret L. Russell (University of Calgary, Cumming School of Medicine,

Department of Community Health Sciences)

Dr. Anthony Schryvers, (University of Calgary, Cumming School of Medicine,

Department of Microbiology, Immunology & Infectious Diseases,)

Dr. Marc Steben (Montreal, Clinique Médicale)

Professor David Sweanor (University of Ottawa, Faculty of Law, Adjunct)

Professor Brian J Ward (McGill University, Faculty of Medicine)