calgary defence blog
A Defence lawyer's perspective on issues in criminal law
Please be aware that all commentary in my blog is designed to promote discourse on a variety of topics. Though I certainly do some research on the topics discussed and often offer my "two-cents", please keep in mind that nothing I say in this blog is meant to be taken as authoritative on any subject. My comments are really just me exercising my freedom of expression for the purpose of offering some insight on topics related to the practice of criminal law. As with all topics of discussion, it is important for you to be critical. If you need a defence lawyer, please call 403.452.8018 for a free telephone consultation or consult with an experienced Calgary criminal lawyer. Happy reading! Happy watching!
The Discrimination Label: Professional Responsibility and the Discrimination Card
Tagged Criminal Defence BlogSeptember 29, 2019
THE DISCRIMINATION LABEL
A “racist” is someone who feels or shows discrimination or prejudice against a person of another race or who believes a particular race is superior to another. In Canada, we pride ourselves on the notion that this Country is racially tolerant. I think there are good reasons to have some pride in this, for Canada has embraced persons of all ethnicities from across the planet.
Being labeled a “racist” (even impliedly) is serious for anybody and arguably even more so if the party labeled occupies a position in the public service. The personal and professional damage of being smeared with the racist label is obvious. Accordingly, publically labeling or even insinuating that somebody is racist, sexist, bigamist or tagging them with any other damaging characteristic should not be done lightly, with ulterior motives or carelessly.
This Calgary criminal lawyer has openly advocated for free speech protection, but of course, there are limits. Also, limitations on freedom of speech cuts both ways; for as damaging as it is for anybody to openly engage in discrimination against a person of another race, it is also very damaging to, without just cause, label somebody a racist. The discrimination label is especially damaging for a judge because judges in Canada are to act without prejudice or bias. If a judge cannot adjudicate cases without prejudice or bias, he or she cannot be a judge.
In R. v. R.D.S. the majority of the Supreme Court of Canada commented that
[e]very comment…a judge makes from the bench is weighed and evaluated by the community as well as the parties. Judges must be conscious of this constant weighing and make every effort to achieve neutrality and fairness in carrying out their duties. This must be the cardinal rule of judicial conduct.
A recent letter complaining about Mr. Justice Terry Clackson of the Alberta Court of Queen’s Bench has caught my attention. In response to the judgment in the case of R. v. Stephan,  A.B.Q.B. 715 dozens of persons associated with the medical profession lodged a complaint against Justice Clackson for his treatment of the evidence of Forensic Pathologist, Dr. Bamidele Adeagbo.
The judicial Complaint
In the view of the complainants, Mr. Justice Clackson acted “discriminatorily” in the execution of his duties. In my view, it is highly unfortunate that this accusation was leaked to the public; for the accusation was made without the benefit of the full record and as such is potentially unfair, unfounded and could have the intended effect of seeing this judge unjustly restricted in his duties or worse, constructively removed from the bench before the truth of the allegation is ever decided.
At the outset, it is clear to me that the letter of complaint penned by Professor Juliet Guichon et al (with the support of over two-dozen signatures, mostly associated with the Medical Profession) was crafted without the benefit of the full court record. In my opinion, this is unfortunate; for it is appears to me that none of these professional complainants reviewed the actual record or listened to actual testimony before lodging a potentially damaging complaint that could sewer a person’s professional career.
Let me say this again: there is no evidence that these complainants “listened” to any testimony prior to lodging their complaint.
Though I have a plethora of suspicions as to why this complaint was lodged and leaked public, I acknowledge that the Judicial Council exists, at least in part, to monitor the conduct of judges. Accordingly, the complainants had the right to complain when they did. However, lodging the complaint to trigger an investigation using clearly disparaging and damaging language, should have, at a minimum, been based on the entire record, not a couple paragraphs cherry-picked from the judgment. It is not insignificant that most of these complainants have strong ties to the medical profession, the legal profession and Alberta Health Services. These complainants were well aware of the carnage that would flow from these allegations and as such, ought to have known better than to base their discrimination-based complainant on an incomplete record. Those with legal training have less of an excuse.
In my opinion, these professionals lack professionalism. This complaint was filed in the absence of necessary due diligence.
THE CASE OF DAVID AND COLLET STEPHAN
At the outset, I acknowledge that our criminal justice system has a lot of problems; indeed, it is far from perfect. Cases are investigated, prosecuted, defended and adjudicated by human beings -- all burdened by human frailty. In criminal justice, emotions can run high and overcoming emotion with reason is challenging. To be sure, the mere presence of human frailty means that the criminal justice system, by its very nature, will be far from perfect. Yes, guilty people go unpunished; yes, innocent people are occasionally convicted. It happens. To think otherwise is, in the view of this Calgary criminal lawyer, delusional. Even the most well intended lawyers, judges and witnesses will make mistakes.
Cases involving the particularly vulnerable (such as animals or children) are especially emotional. More so than many criminal cases, they tend to attract the attention of the public. In criminal law, it is difficult to soften the emotional need for retribution with principles designed to protect the presumptively innocent. Trial judges are often asked to do a very difficult job; indeed, one that requires them to harden themselves against the risk of being swayed by public sentiment.
R. v. Stephan is a case that involved the tragic death of a child. As reported by the CBC:
Over the summer, David and Collet Stephan underwent a second trial in Lethbridge on charges connected with the 2012 death of their 19-month-old son, Ezekiel.
From reviewing news reports and the judgment of Clackson J. in R. v. Stephan,  A.J. No. 1263, it is appears that the prosecution’s case hinged on the evidence of its forensic pathologist, Dr. Adeagbo. Without getting into all of details, it is sufficient to say that the accused did not agree with the Crown’s allegations or Dr. Adeagbo’s opinion. As was their right, the accused presented evidence to the contrary. That evidence came from another properly qualified expert, Dr. Anny Sauvageau -- the former Chief Pathologist of the Province of Alberta. Dr. Sauvageau did not agree with the conclusions of Dr.Adeagbo. In the end, Mr. Justice Clackson had the unenviable job of wrestling with what appears to be competing, complicated, expert-medical testimony. He found David and Collet Stephan “not guilty”.
DEFERENCE AS THE TRIER OF FACT
The Stephan case involved tangling with technical, expert medical opinion evidence.
Resolving conflicting evidence can be tricky business. This is especially so when those conflicts revolve around complicated testimony packed with clinical jargon. Though resolving conflicts is not easy, trial judges must still do it. In doing so, we expect them to craft reasons for judgment. The very nature of the job exposes their thoughts to scrutiny and criticism that others might avoid by keeping private.
Reasons for judgment are very important, for they serve to make clear the judge’s reasoning path. In R. v. R.E.M.,  S.C.J. No. 52 a unanimous Supreme Court of Canada stated:
A trial judge’s reasons serve three main functions - to explain the decision to the parties, to provide public accountability and to permit effective appellate review. Proceeding with deference, the appellate court is to ensure that, read in the context of the record as a whole, the trial judge’s reasons demonstrate that he or she was alive to and resolved the central issues before the court.
In the case of R. v. Stephan, Mr. Justice Clackson had a duty to provide reasons. This is a basic duty owed to both the State and the accused. In delivering his reasons, he had a duty to explain why he placed more weight on some evidence and less on other evidence. To that end, is it really all that surprising that any rationale person might place more weight on evidence delivered persuasively, clearly and cogently? It is noteworthy that Clackson J. found that Dr. Adeagbo “offered no opinion as to how the meningitis he discovered caused death” (see para. 92). Also, he described Dr. Sauvageau’s opinion as “compelling”. Throughout, he found that the evidence supported her conclusions.
In law, the trier of fact must assess both the credibility and reliability of evidence. When a witness testifies, words are certainly important, but they are not everything. Evaluating testimony requires the trier of fact to evaluate the entire package of evidence in the context of the case as a whole. When evaluating a particular witness, a trial judge will assess:
- inconsistencies in the evidence;
- the responsiveness of the witness to questions posed in both direct and cross-examination;
- the manner in which the witness testified;
- the quality of evidence presented;
- possible bias or prejudice; and
- the clarity of the evidence presentation.
Understanding the message communicated by a witness is critical to any case; for when evidence is warped by communication errors, the party receiving the evidence may not fully appreciate the intended message. Also, if a party consistently fails to be responsive to questions, judges are entitled to give the evidence less weight. In criminal law, it is neither unusual nor unreasonable for judges to place more weight on clear, responsive testimony replete with evidentiary connections than on unclear, unresponsive evidence with little or no evidentiary linkage. Indeed, this just make sense.
In R. v. Stephan, though it seems clear that Mr. Justice Clackson struggled to comprehend Dr. Adeagbo’s testimony, it appears equally clear that he understood it. It seems clear that he took the time and effort to work through evidence potentially plagued by communication deficiencies.
Our common law has established that a trial judge must be afforded substantial deference to make findings of fact. Housen v. Nikolaisen,  S.C.R. 235 supports this proposition:
…the principle of deference promotes the autonomy and integrity of the trial proceedings….. [T]his principle recognizes the expertise of trial judges and their advantageous position to make factual findings, owing to their extensive exposure to the evidence and the benefit of hearing the testimony viva voce.
Unlike those who lodged their complaint to the judicial council, Mr. Justice Clackson was actually present during the entirety of the trial. He listened to all of the evidence, including the entire testimony of Doctors Adeagbo and Sauvageau. To borrow the language of the Supreme Court in Housen supra, he had “extensive exposure to the evidence”.
With this in mind, it is my view that rather than launching a discrimination complaint against this judge based upon one or two cherry-picked paragraphs isolated from his judgment and without the benefit of the entire court record (including FTR sound recordings), the complainants ought to have conducted a more comprehensive investigation of their own before smearing him as discriminatory or a racist. As professionals, they owed the courtesy of necessary due diligence.
UNUSUAL TRIAL PROCEDURE
From reading the judgment it is clear that Clackson J. was wrestling with an unusual procedure caused in part by the fact that there was an unrepresented litigant. It appears that the litigants agreed to the procedure. In his words:
The procedure adopted in this trial was unusual. The voir dire as to qualification and the evidence that would have been given if qualified, were all rolled into one. Therefore, by agreement, I heard the entirety of Dr. Adeagbo's testimony in direct, cross and redirect on the subject of his expertise and the substance of his opinion all as part of the voir dire. That procedure was necessary because the Stephans' advised that they would be challenging Dr. Adeagbo's impartiality and his reliability and intended therefore to cross-examine him on his opinion as well as his qualifications.
What is important about the “unusual procedure” is that Clackson J. was forced to address arguments by the defence concerning Dr. Adeagbo’s presentation in court. Though I am not arguing that “two wrongs make a right”, that a litigant exposed the issue arguably required the judge to address it.
In the letter of complaint, paragraph 20 of the judgment was largely singled out as an example of an ad hominem attack by the trial judge against Dr. Adeagbo. That paragraph reads as follows:
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. 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 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 is evidence.
The complainants failed to properly contextualize this part of Clackson’s decision. Specifically, they failed to mention paragraph 19, where the judge stated (emphasis added):
I turn to the specifics of the defence arguments. Those arguments may be summarized as arguments respecting communication, arguments respecting attitude, arguments respecting credibility, and arguments respecting noble cause or confirmation bias.
In my opinion, the complainant’s characterization of Clackson J.’s judgment being an hominem attack on Dr. Adeagbo lacking “judicial mien” is potentially misplaced and unfounded. There was a judicial purpose underpinning his treatment of “arguments respecting communication”.
Argumentum ad hominem typically refers to a fallacious and potentially dishonest argumentative strategy whereby a position is attacked for reasons independent of the substance of the argument. To my mind, ad hominem usually involves a personal attack against one’s opponent (or the other side) that is disconnected from the position of the party. For example, if I say, “I prefer X’s argument over A because A is stupid” that is ad hominem. In this case, my view of A’s intelligence doesn't necessarily have anything to do with the quality of A’s argument. On the other hand, if I say, “I prefer X’s argument over A because A’s argument is incomprehensible”, that is not necessarily ad hominem. In this example, preferring X over A because X is comprehensible (or more comprehensible) is not a position clearly independent of the substance of the argument.
With respect to Dr. Adeagbo, it appears that though Clackson J. (and others) had “profound difficulty” comprehending his evidence, it was ultimately comprehended. That said, it also appears the defence argued that Adeagbo’s opinion should not be admitted due to communication issues. The trial judge was thus asked to address this problem directly, which he did. He highlighted the evidence of Dr. Adeagbo’s communication problems but nevertheless apparently rejected the defence request to have his opinion excluded from evidence. The trial judge ultimately preferred to consider Dr. Adeagbo’s evidence as capable of being weighed along with other evidence in the case. In my view, this was judicious.
In my opinion, to insinuate that Justice Clackson implicated Dr. Adeagbo’s “national or ethnic origin as a person of African roots” based on paragraph 20 of his judgment, without consideration of whole of the case, including the unusual procedure and argument made by the defence, was irresponsible. To be clear, I am not arguing that the complaint necessarily lacks merit. I simply don’t know enough to conclude one-way or another. Rather, I am saying that these professionals had a professional responsibility to consider the entirety of the record (including listening to it) prior to levelling the discrimination card and making it public.
Interestingly, it is arguable that the complaint against Mr. Justice Clackson labeling him as biased (or racist) is actually ad hominem. I say this because Justice Clackson’s comments concerning Dr. Adeagbo’s manner of communication was triggered by a litigant’s argument, the substance of which was more aligned with the subject of evidentiary cogency than ethnicity. In fact, it is not insignificant that the only parties to mention Dr Adeagbo’s ethnicity were the complainants. Indeed, Dr. Adeagbo’s ethnic origins were not referenced in the judgment at all.
YOUTUBE VIDEO OF DR. SAUVAGEAU
It is noteworthy that the complainant’s included a YouTube video of Dr. Anny Sauvageau speaking at a conference. This was clearly highlighted to demonstrate Dr. Sauvageau’s manner of communication.
I found it striking that the complaint failed to include any video relating to Dr. Adeagbo.
Though I have never heard Dr. Adeagbo speak, and thus can offer no personal or practical insight into his manner of communication, I have had the opportunity to listen to Dr. Sauvageau. Though Dr. Sauvageau has a noticeable Quebecois accent, she speaks clear and comprehensible English. It is also noteworthy that she speaks clearly in the video presented by the complainants.
You be the judge.
Interestingly, to use Dr. Sauvageau as an example in support of the argument that the trial judge must be acting discriminatorily is also arguably ad hominem. For to insinuate that the trial judge must be discriminating against Dr. Adeagbo because he declined to highlight the accent of Dr. Sauvageau fails to appreciate that Dr. Sauvageau might have spoken with perfect (or near perfect) clarity in delivering her evidence at trial. From reading the judgment, it doesn’t appear that any concerns were raised with respect to Dr. Sauvageau’s manner of communication. The same cannot be said for Dr. Adeagbo.
Whatever the case, I prefer not to wade any deeper into these waters. To be clear, I am not saying that the complaint is incorrect or lacks merit. Rather, I am saying that, at the very least, more responsibility ought to have been taken to obtain the complete record prior to lodging a damaging complaint against this judge.
Perhaps it is worth asking this wicked questionable question: if an expert is incomprehensible because of a language impediment, is it not the responsibility of the court to point it out? Criminal trials rely on witnesses. Effective witnesses are comprehensible. Experts have a special place in a criminal trial. In R. v. Mohan,  2 S.C.R. No. 9 the Supreme Court recognized that technical expert evidence can overwhelm the fact finding process. As stated in Mohan:
Logically relevant evidence may be excluded if its probative value is overborne by its prejudicial effect, if the time required is not commensurate with its value or if it can influence the trier of fact out of proportion to its reliability. The reliability versus effect factor has special significance in assessing the admissibility of expert evidence. Expert evidence should not be admitted where there is a danger that it will be misused or will distort the fact-finding process, or will confuse the jury.
With that in mind, if Dr. Adeagbo was not communicating clearly, didn’t the judge have duty to highlight his communication issues for the purpose of addressing the reliability versus effect factor? If expert evidence can confuse the trier of fact, isn’t it proper for a trial judge to address communication issues that could impact evidentiary clarity? In the Stephan case, given that the trial judge had a duty to craft reasons for judgment, wasn’t he required to use words in his judgment to explain circumstances that might have impacted the clarity of evidence? In the big picture of criminal justice, is it not more worthwhile for an expert with communication issues to be made aware of them so that the issues might be corrected in future proceedings? Shouldn’t the Crown take this seriously as well?
It strikes me that all parties to the litigation lose out if a witness -- especially an expert -- delivers an unclear message.
As human beings we sometimes have to hear things we don’t want to hear or that we don’t like. Telling somebody that they have a communication issue is not necessarily racist or discriminatory at all; it might just be a cold, hard fact.
David Chow is a criminal defence lawyer in Calgary, Alberta. David is a full service Alberta criminal lawyer with his main office located at 212, 4616 Valiant Drive N.W.. David is a Calgary DUI lawyer, Calgary drug lawyer and Calgary domestic violence lawyer of choice. Call for a free consultation.
Return to Blog