Thread by @JoshuaSealy

THREAD on the recent Stephan decision, and how it provides a unique lens into ostensible racism in our courts.

TL;DR: The decision—which criticizes a Nigerian witness’ accent and aggression—exhibits a suspicious racial logic warranting careful scrutiny.

albertacourts.ca/docs/default-s…

First, some background: Two parents—the Stephans—were charged with failing to provide the necessaries of life to a person under their care (their son, Ezekiel), contrary to s. 215(2)(b) of the Criminal Code (para 1).

The case turns on expert evidence. Justice Clackson acquits the Stephans because he finds that Ezekiel died from lack of oxygen, *not* meningitis, the Crown’s theory (para 4). Thus, Justice Clackson’s key role was weighing expert evidence about Ezekiel’s cause of death.

My interest is in Justice Clackson’s description of one of the key witnesses: Bamidele Adeagbo, the Nigerian doctor who conducted Ezekiel’s autopsy (para 5). Racism must be approached delicately, mindful of the subtle ways racial logic can corrupt our reasoning processes.

Dr. Adeagbo’s “hard” credentials were not meaningfully challenged (para 9). Accordingly, all that remained was “soft” criteria, e.g., highly discretionary assessments of his “partiality and bias” (para 15). Discretion, and it’s flexible exercise, is a fertile site for prejudice.

First, consider Justice Clackson’s description of Dr. Adeagbo’s communication. Justice Clackson finds that the doctor’s articulateness was “severely compromised by” his manner of speech (para 20). But what about that manner did he specifically object to?

Justice Clackson criticized Dr. Adeagbo’s: (1) “garbled enunciation”; (2) grammar; (3) improper syllabic emphasis; (4) “dropping” of Hs; (5) mispronounced vowels; and (6) pace (para 20). These facts—all related to Dr. Adeagbo’s English fluency/Nigerian accent—are racially coded.

Why? Because language—and specifically, fluency/accent—is a criterion we use to situate people in racial categories. This is why, for example, a student once commented on my “smart white accent”. Further, accents, of course, distribute unevenly between racial groups.

Second, consider Justice Clackson’s description of Dr. Adeagbo’s attitude: “calm, rational, [and] reasonable”, but also “arrogant, petulant, exasperated, combative, argumentative and angry”, both verbally and through “movements, body language, and physical antics” (paras 21-22).

This, too, is racially coded. Temperament and body movement vary culturally. Further, Black men are stereotyped as aggressive. Dr. Adeagbo may have coincidentally acted like an angry Black man. But when paired with harsh scrutiny of his accent, a suspicious racial script emerges.

Justice Clackson writes that Dr. Adeagbo was “unprofessional” (para 23). But who is the prototypical “professional”? I was, for example, advised to cut off my dreadlocks because they are “unprofessional”. There may be aesthetic and cultural subtext here.

Justice Clackson also dislikes the certainty of Dr. Adeagbo’s opinion (paras 23 and 25), and tangentially critiques the doctor’s “pet peeve” about wanting children to be vaccinated (para 28). But the boundary between confidence/ arrogance, defensible concern/pet peeve, is vague.

And this vagueness leaves room for racial logic. For example, arrogance denotes overconfidence. But was Dr. Adeagbo too confident *for a medical professional*, or too confident *for a Black man*? This is how racial logic can creep in to our analysis.

Third, consider Justice Clackson’s tone. He is sarcastic (“despite our ignorance”) and seems irritated by Dr. Adeagbo’s (unreasonable?) video link “accommodation” (para 20). Contrast this with his glowing remarks on the Stephans (paras 66-67 and 82-84).

To be fair, Justice Clackson purported to contain his reliance on these facts. He said that Dr. Adeagbo’s speech only informed the “weight” given to his evidence (paras 20 and 23). But this passes the racial buck. Does accent properly inform evidentiary weight?

Or, perhaps more importantly, *which* accents inform weight? While Dr. Adeagbo’s Nigerian accent caused “profound difficulty” (para 20), another witnesses French-Canadian accent got no mention in the reasons, while her evidence was preferred to Dr. Adeagbo’s (paras 44-53).

Fourth, Justice Clackson subtly collapses ephemeral confusion and credibility. If Dr. Adeagbo was incoherent, it is logical to reject his evidence. But Justice Clackson appears to understand all of the doctor’s evidence (paras 43-51), it was simply “challenging” (para 39).

Ultimately, Justice Clackson was “left unimpressed” by Dr. Adeagbo’s evidence (para 45), and in turn, was “left unconvinced” by the doctor’s finding supporting the Crown’s theory (para 51). These are factual findings typically warranting deference. But deference is not absolute.

Specifically, racism does not warrant deference. But let me be clear: I do not know what subjectively motivated Justice Clackson. That said, his comments, viewed collectively, leave a scent of racial logic—often, the only evidence racism leaves in its trail.

Some will say this is overly sensitive, that a witness’ comprehensibility is race neutral. But racism is amorphous. Whether it’s harsh scrutiny of an accent, or offhand remarks to students (cbc.ca/news/canada/ca…), racist logic in the judiciary always warrants careful critique.

Likewise, one might say my point on aesthetic subtext is speculative. But most defence lawyers will say that a client’s appearance is important at trial. Accordingly, it is not I who speculates about subtext, but others who doubt that racism inflects aesthetically.

Further, if judges routinely discount evidence provided by witnesses with accents, this raises systemic concerns. Our assessments of credibility are already lacking in evidentiary justification. Discounting accented voices can only serve to perpetuate racial and other prejudices.

Distilled, Justice Clackson appears to discount Dr. Adeagbo’s evidence, in part, because he found his accent, though comprehensible, frustrating to understand. This prioritizes otherwise credible white evidence over otherwise credible black evidence. This perpetuates racism.

A complaint has been filed against Justice Clackson (theglobeandmail.com/canada/alberta…). Credibility is complex, but it is where prejudice routinely compromises our legal system. Rare opportunities, like this one, where seeming prejudice is found in reasons must be carefully scrutinized.