Findings of Expert Credibility: Not What You Say, But How You Say It? R v Stephan
Updated: 2 days ago
Author: L Bendkowski
Decision in R v Stephan.
“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”.[1]
“Dr. Adeagbo demonstrated all of the following behaviours and attitudes over the six days of his testimony. He was calm, rational, reasonable, arrogant, petulant, exasperated, combative, argumentative and angry.”[2]
“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.”[3] [emphasis added]
“As foreshadowed, when I addressed the question of Dr. Adeagbo's qualifications, I was left unimpressed by his evidence.”[4] “I would have real concerns had I been sitting with the jury as to their ability to comprehend what Dr. Adeagbo was saying. As well, as I said in the course of trial, I had real concerns about the Accused's ability to cross-examine and make full answer in defence, when the Doctor's evidence was unintelligible.”[5]
These are the salvos of a judge consistently discrediting an expert witness and siding with opposing counsel’s expert. Arguably pursuant to the remarks above, the judge disagrees with the conclusions reached by Dr. Adeagbo about the cause of death of Ezekiel Stephan. Concern and alarm was immediately raised about these remarks including 42 lawyers, doctors, and professionals signing a complaint to the Canadian Judicial Counsel requesting an investigation into the judge’s remarks.[6]
The Crown has now appealed the decision, including on the grounds of reasonable apprehension of bias and that the judge assessed credibility on irrelevant considerations.[7] These grounds will be discussed at the conclusion of this post after addressing the concerns and problems with the approach taken in this decision.
“Judges, as arbiters of truth, cannot judge credibility based on irrelevant witness characteristics. All witnesses must be placed on equal footing before the court.”[8] The judgment itself raises questions and concerns about systemic biases in judicial reasoning – what raises graver concerns is the possibilities that judges are privy enough to think these types of thoughts but not record them in their reasonings. The idea of a prejudicial judge is not outside the realm of possibility. The discriminatory thoughts could remain private and unstated, the judge having already made his/her mind up – all that would be required is a reverse reasoning process of finding other grounds for discrediting or disregarding the evidence about which they’ve already decided on. Though this cynicism may be a stretch and is certainly not applicable of all judges, concern must be raised given the rebukes contained in the Stephan judgment.
Each of us has our own mannerisms and styles of delivery, as varied and replete as the day is long. Nevertheless, the judicial system would become a failure if findings of credibility and fact during the course of a trial turned on our ability, or inability, to meet the satisfaction of the trier of fact’s preferences and desires. Credibility is determined by the content the individual delivers, not necessarily the form in which they deliver it. Some of us speak quickly, some of us speak meekly, some of us overly rely upon hand movements and gestures; there are many possible permutations to our stylistic choices of delivery, but these should not prove to be determinative factors of the weight of what it is we’re saying. Granted there may be an inadequacy on the record to properly convey these mannerisms, but it would be a large and unfair stretch to maintain that the record’s inability to demonstrate these unique tendencies ought to serve to find the content non-credible. Undoubtably no one would want to be a part of or have confidence in a justice system that delivered determinations of credibility and fact-finding based on accents or pronunciations.
Charter Considerations
Section 15 of the Canadian Charter of Rights and Freedoms provides for every individual to be treated equal before the law and “without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”[9] Notably, there is ambiguity about the scope of the application of the Charter to the judicial system.[10] However, the values that underly the Charter provide an illuminating guideposts for the expected conduct of the judiciary. There may be unequal treatment/discrimination in the witnesses in the Stephan case from the fact that Dr. Adeagbo was of Nigerian descent and this may have been an impediment to his English being below the judge’s desires; however, the expert witness called by defendant’s was from Quebec and had a French accent.[11] This latter accent was never commented on or given any attention within the judge’s reasons in comparison to the extensive emphasis and focus on Dr. Adeagbo’s delivery. What appears to be looming large in both the background and the foreground of the reasoning for findings of credibility is discrimination based upon an individual’s ethnic background and race.
Grounds for Appeal and the Standard Therein
As for the grounds of appeal the Crown has filed for, reasonable apprehension of bias is a difficult threshold to overcome.[12] The test itself is twofold: “the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case” and this reasonable person is informed of all the relevant circumstances.[13] For irrelevant findings of credibility there must be a “palpable and overriding error” or otherwise stated as ‘“clearly wrong”, “unreasonable” and “not reasonably supported by the evidence”’.14 This entails that the judge is granted significant deference for their findings and that the matter must be clear and patently incorrect or wrong. Given this high watermark, both grounds of appeal will present a difficult task for the Crown’s appeal to be successful if the matter is decided on these grounds (the Crown has also presented three other grounds of appeal).
The appeal moving forward may provide a foothold for the recognition of racial bias within judicial reasoning and credibility findings. We may still dream of a time where all witnesses are held to be on equal footing and given equal weight before the judicial system regardless of the uniqueness or idiosyncrasies of their presentation or background, but the Stephan decision demonstrates we are not at that idealized juncture yet.
Endnotes:
[1] R v Stephan, 2019 ABQB 715 at para 20.
[2] Ibid at para 21.
[3] Ibid at para 22.
[4] Ibid at para 45.
[5] Ibid at para 38.
[6] Meghan Grant, “Racism investigation urged for Alberta judge who ruled parents not guilty in son's death”, CBC News (26 September 2019), online:<https://www.cbc.ca/news/canada/calgary/justice-terry-clackson-canadian-judicial-council-investigation-complaint-stephans-racism-1.5298752>[https://perma.cc/9E4W-W6VE]
[7] CBC News Alerts, “From the court documents: Here are the grounds upon which the Alberta Crown intends to seek an appeal in the case of a toddler who died after his parents failed to seek medical care in time.” (15 October 2019 at 8:26) online: Twitter <https://twitter.com/CBCAlerts/status/1184128941671493633>[https://perma.cc/GA55-U4CV]
[8] R. v. S. (R.D.), [1997] 3 S.C.R. 48 at para 20, Major J, dissenting [SRD].
[9] Canadian Charter of Rights and Freedoms, s 15(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[10] RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at pg 600.
[11] Supra note 5.
[12] SRD, supra note 7 at para 158, Cory J.
[13] Ibid at para 111, Cory J.
[14] H.L. v. Canada (Attorney General), 2005 SCC 25 at para 110.
