David and Collet Stephan leave for a break during their appeals trial in Calgary, Thursday, March 9, 2017. The Canadian Judicial Council says it will not be taking further action against an Alberta judge in the case.THE CANADIAN PRESS/Todd Korol

‘A whitewash’: Judge investigated for perceived racist remarks won’t face sanctions

The Canadian Judicial Council will take no further action against an Alberta judge after people complained that comments he made about a medical examiner from Nigeria could be perceived as racist.

Dozens of medical and legal experts filed complaints against Justice Terry Clackson for comments he made in finding David and Collet Stephan not guilty of failing to provide the necessaries of life in the death of their 19-month-old son.

Clackson said in his September 2019 decision that Dr. Bamidele Adeagbo spoke with an accent and was difficult to understand. The judge also called the doctor out for his body language.

“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 called Adeagbo’s “body language and physical antics … not the behaviours usually associated with a rational, impartial professional imparting opinion evidence.”

His comments prompted Alberta’s Court of Appeal to overturn the decision and order a third trial that never happened.

The council in its report released Wednesday said it received several complaints, including a letter signed by 42 doctors, lawyers and professors, which raised concerns about Clackson’s treatment of the expert medical witness.

The case was reviewed by Christopher Hinkson, chairman of the Judicial Conduct Committee and chief justice of the Supreme Court of British Columbia.

“(Clackson) accepts that these (comments) 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,” reads the report.

“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.”

Clackson, a Court of King’s Bench justice, has consulted experts, 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, Hinkson said.

He added that he is satisfied Clackson has learned from the event and has directed that the matter be closed.

Two of the signatories to the original letter of complaint were disappointed with the council’s decision.

“I am surprised and I am disappointed in this decision of the Canadian Judicial Council,” said University of Calgary bioethicist Juliet Guichon, who helped write the letter.

Clackson acted in a way that gave the impression he had an unconscious, implicit or subconscious bias against a person who may be marginalized in society, she said in an interview.

“So that finding is consistent with a general understanding that his behaviour brings the administration of justice into disrepute, so it’s unclear why he remains in office,” Guichon said.

Dr. Ian Mitchell, a clinical professor and professor emeritus of pediatrics at the University of Calgary, said he had hoped for more from the judicial council.

“This was a whitewash. It’s a lengthy response that says nothing substantial. It says that he’s sorry for having upset people, which is not an apology … an apology is when you apologize for your actions,” Mitchell said.

“Nor does it deal with the issue that his discrediting the main witness of hard medical evidence affected the decision,” he added.

“He should not be on the bench.”

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