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PROCEDURE - Trial judge’s duties - Trials - New trials, grounds for

Monday, May 03, 2021 @ 9:23 AM  


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Appeal by the Crown from the respondents’ acquittals on a charge of failing to provide the necessaries of life to their infant son. The Crown argued that the trial judge erred in law in requiring the Crown to prove that medical intervention would have saved Ezekiel’s life and that the trial judge’s comments regarding Adeagbo, the forensic pathologist who conducted the child’s autopsy, gave rise to a reasonable apprehension of bias. The child died of bacterial meningitis. He had not been immunized and the parents treated his symptoms with herbal remedies. Both parents told the doctors at the hospital and the police that the child displayed body stiffness and arched back, symptoms of bacterial meningitis. At trial, the parents denied making some of the statements to hospital staff which indicated that the child was obviously very sick in the days before he stopped breathing. The trial judge found the respondents were honest and forthright in their testimony before him and that their reports to medical personnel and the police were unreliable and false. The father represented himself at trial and was permitted to cross-examine Adeagbo several days before the doctor testified. The trial judge commented several times on the doctor’s accent and language problem.

HELD: Appeal allowed. New trial ordered. The trial judge erred in law in finding that the Crown was required to prove under s. 215(2)(a)(ii) of the Criminal Code that the child’s life would have been saved with medical treatment. Section 215(2)(a)(ii) was not directed to whether death would, or even for that matter could, have been prevented with earlier medical intervention. This section criminalized endangering life, not causing death. Requiring the Crown to prove that medical intervention would or even could have saved the child’s life was inconsistent with the scheme of s. 215 of the Code. Section 215 was a duty-based offence that criminalized the failure to perform specific legal duties arising out of defined relationships. Section 215 was designed to ensure that children, amongst the most vulnerable in society, were provided with the necessaries of life by those who owed a duty of care to them which reinforced the conclusion that the section was directed to protecting children from risks of danger to their life. The text, scheme and purpose of s. 215(2)(a)(ii), as well as the relevant context, all supported the conclusion that the Crown was not required to prove that the child’s life would or could have been saved had the parents sought medical treatment when a reasonably prudent parent would have done so. The trial judge’s comments relating to Adeagbo and his evidence would lead an informed person to conclude that the trial judge did not assess his evidence fairly. That apprehension of bias produced an unfair trial. To an informed person, the trial judge effectively chastised Alberta Health Services for hiring a forensic pathologist who was, in the trial judge’s opinion, incomprehensible. The father’s manner of cross-examining the doctor was also improper and was bound to produce a chaotic impression of the witness’s evidence in the trial judge’s mind. No self-represented accused or counsel ought to be permitted to conduct unduly lengthy, unfocused examinations of witnesses. The trial judge’s criticisms of Adeagbo’s manner of speech were unwarranted and unfair. Impugning Adeagbo’s evidence on the basis he used “medical jargon” contributed to an informed person’s perception of bias.

R. v. Stephan, [2021] A.J. No. 318, Alberta Court of Appeal, C.A. Fraser C.J.A., M.S. Paperny and P.W.L. Martin JJ.A., March 8, 2021. Digest No. TLD-May32021001