On a day that Alberta reported 18,243 active cases of COVID-19 and 15 additional deaths, the province also reported a record high test positivity rate.
The positivity rate climbed to 10.5 per cent, a “grim milestone and one that should concern us all,” Dr. Deena Hinshaw, Alberta’s chief medical officer of health, told a news conference Friday.
With almost 17,200 people tested, and one of every 10 testing positive, the total number of new cases in Alberta reached 1,828.
To date 590 people have died in Alberta. As of Friday there were a record 533 people in hospital, including 99 in intensive care.
“We are heading into the first weekend of December,” Hinshaw said. “In a difficult year, I know this last month may be the toughest for many. This virus can spread quickly from one to many.
“In a month usually marked by festive gatherings, we feel the restrictions more keenly. But I want to stress the seriousness of the rising case numbers that we’re seeing and how crucial it is that we reduce the spread and bend the curve back down.”
Here is how the active cases break down among the regions:
Edmonton zone: 8,578 cases
Calgary zone: 6,666 cases
Central zone: 1,251 cases
North zone: 1,012 cases
South zone: 630 cases
Unknown: 106 cases
7 deaths at care home in Edmonton’s Chinatown
The 15 deaths reported Friday included seven people linked to an outbreak at the Edmonton Chinatown Care Centre: four men in their 90s, a woman in her 90s, a man in his 80s and a man in his 100s.
Other deaths reported Friday:
A woman in her 70s linked to the outbreak at Clifton Manor in Calgary.
A man in his 80s linked to the outbreak at Capital Care Lynnwood in Edmonton.
A man in his 70s from the Edmonton zone.
Two men in their 60s from the Edmonton zone.
A man in his 50s from the Edmonton zone.
A woman in her 70s from the Central zone.
A woman in her 90s from the Calgary zone.
Contact tracing getting help
Dr. Verna Yiu, president and CEO of Alberta Health Services, told the news conference AHS is working to bolster its troubled contact-tracing system.
“As case numbers have increased exponentially in the past six weeks it has become more and more difficult for our teams to keep up with demand,” Yiu said.
“We are rapidly increasing our response to the unprecedented volume of COVID-19 cases in the province.”
The province has more than 900 contact tracers in Alberta and is on track to double that number by the end of the year, Yiu said.
“This means that we will have 36 contact tracers per 100,000 people, which will be on par or better compared to other provinces.”
Bending the curve
Albertans are now one week into the latest round of restrictions aimed at bending the curve of COVID-19 cases in the province.
Last Friday, Premier Jason Kenney ordered junior and senior high schools to close, barred indoor social gatherings and capped capacity for businesses.
Next week Albertans will find out what impact those measures are having on the virus, which is spreading faster in Alberta than anywhere else in the country.
It was the second set of restrictions issued by the premier in November.
Three weeks ago, Kenney suspended indoor group fitness programs, team sports and group performance activities, and reduced operating hours for restaurants, bars and pubs in cities.
But the curve didn’t bend and the virus has continued to surge since, setting records almost daily as it tightens its grip on the province.
The province’s contact-tracing system is struggling against demand. Alberta’s government continues to resist calls to adopt the federal contact-notification app or order a province-wide mask law.
It is also continuing to spurn calls by physicians for a two-week lockdown, or “circuit-breaker,” to drop the effective reproduction number and allow contact tracing to catch up.
WATCH | Alberta requests field hospitals from Ottawa:
The Alberta government is in talks with Ottawa and the Canadian Red Cross for help in setting up field hospitals, as the number of COVID-19 patients continues to surge. 2:42
This week, the province acknowledged it is preparing for the worst. Alberta has asked the federal government for two field hospitals, and the Red Cross for two more.
Alberta hospitals are preparing to double-bunk critically ill patients, revamp operating and recovery rooms and reassign staff to treat an expected surge of COVID-19 patients destined for intensive care units.
AHS has asked hospitals in Calgary to begin rationing oxygen.
On the morning of June 4, a team of Alberta civil servants gathered — as it had nearly every day since the COVID-19 pandemic began — to co-ordinate the province’s response to the crisis.
A few minutes into the meeting in a boardroom in downtown Edmonton, Chief Medical Officer of Health Dr. Deena Hinshaw weighed in.
The cabinet committee, to which she and the group reported, was pressuring her to broadly expand serology testing, which is used to detect the presence of COVID-19 antibodies in the blood.
The problem was that the tests had limited large-scale clinical value and Hinshaw believed it would overestimate the virus’s presence in the population.
“Honestly, after the battle that we had about molecular testing, I don’t have a lot of fight left in me,” Hinshaw said during that meeting. The province had introduced rapid molecular testing kits at the start of the pandemic to help testing in rural and remote communities. The recordings reveal some tensions about that decision.
“I think we need to draw on our experience from the molecular testing battle that we ultimately lost, after a bloody and excruciating campaign, and think about, how do we limit the worst possible implications of this without wearing ourselves down?,” Hinshaw said.
A few weeks later, Health Minister Tyler Shandro and Hinshaw announced the province would pour $ 10 million into targeted serology testing, the first in Canada to do so.
The level of political direction — and, at times, interference — in Alberta’s pandemic response is revealed in 20 audio recordings of the daily planning meetings of the Emergency Operations Centre (EOC) obtained by CBC News, as well as in meeting minutes and interviews with staff directly involved in pandemic planning.
Taken together, they reveal how Premier Jason Kenney, Shandro and other cabinet ministers often micromanaged the actions of already overwhelmed civil servants; sometimes overruled their expert advice; and pushed an early relaunch strategy that seemed more focused on the economy and avoiding the appearance of curtailing Albertans’ freedoms than enforcing compliance to safeguard public health.
“What is there suggests to me that the pandemic response is in tatters,” said Ubaka Ogbogu, an associate law professor at the University of Alberta who specializes in public health law and policy.
“The story tells me that the chief medical officer of health doesn’t have control of the pandemic response [and] tells me that decisions are being made by persons who shouldn’t be making decisions,” said Ogbogu, who was given access by CBC News to transcripts of specific incidents from the recordings.
“It tells me that the atmosphere in which decisions are being made is combative, it is not collaborative and that they are not working towards a common goal — they are working at cross-purposes.”
Ogbogu has been a staunch critic of the UCP government. In July, he publicly resigned from the Health Quality Council of Alberta, citing the potential for political interference in its work due to amendments to the Health Statutes Amendment Act.
Shandro did not respond to an interview request.
In a brief emailed statement that did not address specific issues raised by CBC News, a spokesperson for Kenney said it is the job of elected officials to make these sorts of decisions and he said there was no political interference.
Hinshaw also did not respond to an interview request.
But at the daily pandemic briefing Wednesday, as the province announced its 500th death, Hinshaw reiterated her belief that her job is to provide “a range of policy options to government officials outlining what I believe is the recommended approach and the strengths and weaknesses of any alternatives.
“The final decisions are made by the cabinet,” she said, adding that she has “always felt respected and listened to and that my recommendations have been respectfully considered by policy makers while making their decisions.”
Secret recordings reveal tension
The recordings provide a rare window into the relationship between the non-partisan civil servants working for the Emergency Operation Centre and political officials.
The EOC team, comprised of civil servants from Alberta Health and some seconded from other ministries, has been responsible for planning logistics and producing guidelines and recommendations for every aspect of Alberta’s pandemic response.
The recordings also provide context for the recent public debate about the extent of Hinshaw’s authority to act independent of government.
Even if Hinshaw had the authority to make unilateral decisions, the recordings confirm what she has repeatedly stated publicly: she believes her role is to advise, provide recommendations and implement decisions made by the politicians.
At the group’s meeting on June 8, the day before Kenney publicly announced Alberta’s move to Stage 2 of its economic relaunch plan, Hinshaw relayed the direction she was receiving from the Emergency Management Cabinet Committee (EMCC). That committee included Kenney, Shandro and nine other cabinet ministers.
“What the EMCC has been moving towards, I feel, is to say, ‘We need to be leading Albertans where they want to go, not forcing them where they don’t want to go,'” Hinshaw told the group.
Hinshaw said she didn’t know if the approach would work, but they were being asked to move away from punitive measures to simply telling people how to stay safe.
More of a “permissive model?” someone asked. Hinshaw agreed.
“I feel like we are starting to lose social licence for the restrictive model, and I think we are being asked to then move into the permissive model,” she said. “And worst-case scenario, we will need to come back and [be] restrictive.”
Soaring COVID-19 rates in Alberta
As a second wave of COVID-19 pummels the province, an increasing number of public-health experts say Alberta long ago reached that worst-case scenario.
The province has passed the grim milestone of more than 1,500 new cases reported in a day. To date, 500people have died. Intensive care units across Alberta are overwhelmed, with COVID-19 patients spilling into other units as beds grow scarce.
On Tuesday, after weeks of pleading from doctors, academics and members of the public for a province-wide lockdown, Kenney declared another state of public health emergency.
However, he pointedly refused to impose a lockdown, saying his government wouldn’t bow to “ideological pressure” that he said would cripple the economy. Instead, he announced targeted restrictions, including a ban on indoor social gatherings.
WATCH | Premier Jason Kenney announces new pandemic restrictions:
Alberta Premier Jason Kenney bypassed a renewed lockdown as part of new COVID-19 restrictions, despite having more COVID-19 cases per capita than Ontario. Restaurants and retail can stay open with reduced capacity, though indoor private gatherings are banned and the school year has been altered again. 2:36
Kenney repeated many of the comments he made on Nov. 6.
Even as Alberta’s case count grew so high that the province could not sustain its contact tracing system, Kenney rejected calls for more stringent measures and downplayed the deaths related to COVID-19.
“What you describe as a lockdown, first of all, constitutes a massive invasion of the exercise of people’s fundamental rights and a massive impact on not only their personal liberties but their ability to put food on the table to sustain themselves financially,” Kenney said.
Kenney said it was projected, back in April, that COVID-19 would be the 11th-most common cause of death in the province.
“And so currently, this represents a tiny proportion of the deaths in our province.”
High evidence threshold for restrictions
A source with direct knowledge of the daily planning meetings said the premier wants evidence-based thresholds for mandatory restrictions that are effectively impossible to meet, especially in an ever-changing pandemic.
As of Wednesday, no thresholds have been designated publicly.
The source said Kenney’s attitude was that he wasn’t going to close down anything that affected the economy unless he was provided with specific evidence about how it would curtail the spread of COVID-19.
“This is like nothing we have ever seen before. So [it is] very, very difficult to get specific evidence to implement specific restrictions,” said the source who, like the others interviewed by CBC News, spoke on condition of confidentiality for fear of losing their job.
Another planning meeting source said “there is kind of an understanding that we put our best public health advice forward and that Kenney is really more concerned about the economy and he doesn’t want it shut down again.”
CBC News also interviewed a source close to Hinshaw who said she has indicated that, eight months into the pandemic, politicians are still often demanding a level of evidence that is effectively impossible to provide before they will act on restrictive recommendations.
The source said Hinshaw suggested politicians “have tended to basically go with the minimal acceptable recommendation from public health, because I actually think if they went below — if they pushed too far — that she probably would step down.”
Ogbogu said it is clear politicians, who are not experts in pandemic response, are not focusing on what matters most to public health.
“The focus needs to be on the disease, on how you stop it,” he said. “Not the economy. Nothing is more important.”
‘I may have gotten in trouble with the minister’s office’: Hinshaw
The government has often used Hinshaw as a shield to deflect criticism of its pandemic strategy, suggesting she is directing the response. The government has at times appeared to recast any criticism of the strategy as a personal attack on her.
At her public COVID-19 updates, Hinshaw has refused to stray from government talking points or offer anything more than a hint of where her opinions may diverge.
Behind the scenes, however, there were clearly times when Hinshaw disagreed with the political direction — although it was also evident the politicians had the final say.
In April, for instance, the government introduced asymptomatic testing in some parts of the province, and later expanded it.
Hinshaw told a May 22 meeting she had unintentionally started a conversation with Kenney in which she expressed concern about the value of large-scale asymptomatic testing as opposed to strategic testing.
Kenney in turn asked for a slide presentation that would detail the pros and cons of each approach.
“I didn’t intend to have that conversation, so I may have gotten in trouble with the [health] minister’s office today about that,” Hinshaw said at that meeting.
The presentation, she said, would include “how expensive it is to test people when we don’t actually get a lot of value, to go forward with a testing strategy that we can stand behind. So we will see if the minister’s office will allow us to put that [presentation] forward,” Hinshaw said.
The premier, she said, had asked for the presentation for June 2.
But she cautioned the team, “Not to get all of our hopes up or anything.”
A week later, Hinshaw publicly announced the province had opened up asymptomatic testing to any Albertan who wanted it. At a news conference, she said that given the impending Stage 2 relaunch, it was an “opportune time” to expand testing.
‘They don’t want us to enforce anything’
The recordings suggest a desire by Health Minister Shandro to exert control over enforcement of public health orders.
Alberta Health Services (AHS), the province’s health authority, is responsible for enforcing public health orders. It is supposed to operate at arm’s length from government.
On June 9, the same day Kenney announced the Stage 2 economic relaunch, Hinshaw told the EOC meeting Shandro’s office wanted to be informed how AHS would consult with “us” before taking any action on COVID-19 public orders.
Alberta Health lawyers, working with the EOC, were responsible for writing the Stage 2 relaunch order that would outline restrictions on businesses and the public.
Hinshaw said she needed to verify with Shandro’s office, but she thought “they don’t want us to enforce anything. [They] just want us to educate, and no enforcement.”
But the group’s chief legal advisor was adamant.
“Under no circumstance will AHS check with the political minister’s office before undertaking an enforcement action under the Public Health Act,” he said
Hinshaw said Shandro’s office wanted AHS to check with her first, so she could report back to his office.
The legal advisor challenged that, saying AHS was supposed to check with Hinshaw and a colleague “with respect to prosecutions, not enforcement generally.
“So what is going on?” he asked.
Shandro’s office was “mad that AHS has enforced things like no shaving in barber shops,” Hinshaw responded.
Hinshaw said all local medical officers of health and environmental health officers were already expected to tell her and the team about any impending orders or prosecutions.
But a week later, a senior health official told the meeting AHS was “struggling about what they should be doing” regarding enforcement.
The official said AHS had been told: “Don’t turn a blind eye but don’t issue any orders.
“And then come to us, and if push comes to shove, I think it will be up to the ministry to figure out if we are going to do something.”
In mid-September, CBC News reported that AHS had received more than 29,000 complaints about COVID-19 public health order violations since the beginning of April.
A total of 62 enforcement orders, including closure orders, were issued in that period. As recently as last week, AHS has said that “every effort” is made to work with the public before issuing an enforcement order.
In private conversations as recently as this month, Hinshaw has characterized her interactions with Kenney and cabinet as difficult, said a source close to her.
“I would say that she has used the phrase ‘uphill battle,'” they said.
The source said Hinshaw has been understanding of the reasons for the difficulty, “which I think we both see as being rooted in a completely different weighting of the risks of the disease and the risks of, for example, public-health restrictions.”
Hinshaw, however, “did allude to some of the meetings as being very distressing.”
But the source said Hinshaw worries about what could happen if she leaves her role.
“She sees her position, optimally, as trying to do the best she can from inside. And that if she wasn’t there, there would be a risk that things would be worse in terms of who else might end up taking that position and what their viewpoint was on the best direction.”
Ogbogu, the health law expert, said that while Hinshaw may be well-meaning, her willingness to allow politicians to subvert her authority is ultimately undermining the fight against COVID-19.
If the government is not following scientific advice, if it is not interested in measures that will effectively control a pandemic that is killing Albertans, then Hinshaw “owes us the responsibility of coming out and saying, ‘They are not letting me do my job,'” Ogbogu said.
“And if that comes at a risk of her job, that is the nature of public service.”
At the planning meeting on June 4, a civil servant told the team there was concern the province wasn’t giving businesses much time to adjust to shifting COVID-19 guidance.
“I’ve been advocating everywhere I can to move it up, and they moved it back,” Hinshaw replied.
“So you can see I have a lot of influence,” she said sarcastically. “But I will keep trying.”
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Earlier this month, the Alberta government announced it would change drug coverage for approximately 26,000 residents in an effort to save a significant sum of money — approximately $ 380 million over the next four years.
At issue is coverage for Albertans who have diabetes, rheumatoid arthritis and Crohn’s disease.
Those individuals have until July 1, 2020 to make a switch from biologic drugs to biosimilar drugs. Residents who are on private drug plans or are paying out of pocket won’t be affected. The change also won’t apply to children or pregnant women.
The change has provoked anxiety among Albertans who worry that the health impacts they struggled with for years prior to trying a drug like Remicade might return when they switch medications.
“The Remicade, it was fantastic — that’s why I’m so adamant and very apprehensive about losing this,” said Tom Rechenmacher, 58, who has been on the drug for five years. “It took so darn long for me to get back to normal and I don’t want to regress.”
Rechenmacher voted for the United Conservative Party but is upset by the government’s plans.
“To say I’m disappointed is an understatement,” he said.
“I’ve been a conservative my whole life. But for them to start getting involved with my life and other peoples’ lives, well, I don’t know.”
‘It’s not fair at all’
Having taken Remicade for eight years, Edmonton resident Annalee Heidl, 32, is also worried about how her body will react to a new drug.
“You can’t put a price on your health. The government is trying to save money but, at the end of the day, how would they feel if it was turned around on them and they were sick?” Heidl said. “It’s not fair at all.”
The government has told those concerned about the upcoming switch that medical experts were consulted and evidence from Europe has indicated that switching is safe.
In addition, any patient whose doctor shows a valid clinical reason against a switch to biosimilars will be granted an exception, the government said.
“I sympathize with patients who are naturally anxious about the change, they deserve good information,” reads a statement provided to CBC News, attributed to Alberta Health Minister Tyler Shandro. “Biosimilars are safe and appropriate; they’re equivalent to biologics.”
The government has also pointed to the example of British Columbia, which is currently in the process of transitioning patients on biologics to biosimilars.
‘Patients are going to get sick’
Critics of the move, like the non-profit Crohn’s and Colitis Canada, agree that biosimilar drugs are safe and effective.
However, they emphasize that switching from biologics to biosimilars for non-medical reasons is “not in the best interest of patients.”
“We have evidence that showcases that some of these patients are going to get sick,” said Mina Mawani, president and CEO of the non-profit. “If you think about getting sick, you’re thinking about more visits to emergency, more hospitalizations, more surgeries. That’s going to cost the health-care system.”
Though the government has offered exemptions, Mawani said the system currently in place was not capable of ensuring everyone will get the support they need.
“What I heard in the [Dec. 12] press conference was that, ‘Everyone [in British Columbia] who needs an exemption is being exempted,'” Mawani said. “That’s not true. We actually have patients who said, I’ve not been exempted. They just came back and said no.”
British Columbia experience
Debbie Aschwanden, 42, is a resident of Williams Lake, B.C.
She said she was diagnosed with Crohn’s disease and colitis in 2010 and was so sick that she could hardly function.
“When I started taking Remicade, it was life-changing. I was so sick, and when I started taking that, it was totally life-changing,” she said. “It was working good. I was on it for 10 years.”
As part of British Columbia’s transition to biosimilars, Aschwanden said she was switched off Remicade in September.
“The first dosage when I had the first biosimilar was OK but then, as soon as two hours after the treatment, I got a whopper of a headache for seven solid days,” she said. “The same thing the second round. Then this time, I got super sick, like having Crohn’s. I had a big flare and it didn’t go away for seven complete days.”
Aschwanden said her doctor took her off the biosimilar, but she will have to try a second biosimilar before being allowed to go back on Remicade.
“Right now, I’m in limbo and I’m waiting to get approved for the second biosimilar to see how it will affect me or work for me,” she said.
Aschwanden said she was frustrated because things had been going so well on Remicade, and now her “life has been turned upside down.”
“I get that it’s saving money, but it’s not really, because then we’re in and out of the doctors, trying to find ways to cope with it,” she said. “We go through enough with the disease, let alone adding all this extra stress.”
Mixed medical opinions
Dr. Remo Panaccione, an expert in inflammatory bowel disease (IBD) and professor at the University of Calgary, says individual patients respond to the medication in different ways, regardless of how similar it is.
He also said not enough time has passed to determine whether or not the switch has been effective, as rheumatological and dermatological indications only began in B.C. in May, and at the end of September for patients with IBD,
“It’s early days,” Panaccione said. “If the minister of health in British Columbia or Alberta has data that these patients are being followed systematically and they’re doing fine, we’d love to see that data.”
In support of its plan, the Alberta government has also cited statements from Crohn’s and Colitis UK and the European Crohn’s and Colitis Organization. But Panaccione said the latter also recommended any decision to switch to biosimilars should be directed by national guidelines.
“If we default to that position, we do have a national guideline. It was published in September,” he said. “It says no problems [with biosimilar drugs], but we’re against a non-medical switch.”
In its statement to CBC, the government also said claims that patients are at risk stem mainly from a paper by five Alberta physicians.
“All five disclosed past payments from Janssen, the maker of Remicade,” the email reads. “That doesn’t mean their work can’t be valid, but it’s a reminder that this issue involves a company trying to hold onto a lucrative market and avoid competition.”
Panaccione acknowledged he had received payments from Janssen, but added he received payments from the company who made biosimilars as well.
“We disclosed it in the paper and it’s part of our academic appointments. We have disclosures on file at the university and with Alberta Health Services that we update annually,” he said. “We’re not conflicted one way. Unfortunately, we’re broadly conflicted. But that’s the nature of what we do.”
Panaccione said more than a dozen gastroenterologists in Alberta sent letters of concern to the minister of health arguing against the policy.
“If they don’t want to take that, because maybe we have skin in the game, there are gastrointestinal leaders and IBD experts across the country that have sent personal correspondences to the minister warning of the risk,” he said.
Charles Bernstein at the University of Manitoba and Eric Benchimol at the University of Ottawa confirmed to CBC that they had sent correspondences to the Alberta government warning against the switch.
John Marshall at McMaster University and Alain Bitton at McGill University also sent correspondences, Panaccione said.
Dispute over research paper
The paper in question, written by Panaccione along with four other professors at Alberta universities, asserts that the evidence to support the safety of non-medical switching in patients with IBD is of “low to very low quality; in fact, existing data suggests a potential risk of harm.”
The paper also says a non-medical switch policy is expected to cause more than 60 avoidable surgeries in Alberta.
In his email, Shandro said the paper was unpublished and has not been peer-reviewed and was therefore not a validated source of evidence, but Panaccione disagreed.
“The paper actually has been peer reviewed and has been accepted for publication [in the Journal of the Canadian Association of Gastroenterology],” Panaccione said. “The people that have been involved in that paper, three of us have masters of epidemiology from Harvard. So I think we know what we’re doing.”
The government has pushed back against that paper, saying it initially took its findings seriously.
“I asked for it to be reviewed by the Institute of Health Economics,” Shandro wrote. “The CEO of IHE, Dr. Chris McCabe, described the paper as systematically flawed and said its conclusions were meaningless.”
In an interview with CBC, McCabe said the evidence currently in the public domain does not provide any reason to believe there is any difference in the effectiveness or safety of biosimilars compared to the original products.
“The paper is based on an inappropriate meta-analysis of two studies and the extrapolation of the results of that in ways that are not consistent with best practice,” McCabe said.
Though Panaccione’s research was accepted into the Journal of the Canadian Association of Gastroenterology, McCabe said it did not change his interpretation of the paper.
“There’s a lot of flawed research out in the peer-reviewed literature. Peer review is an imperfect system but we haven’t come up with a better one yet,” McCabe said. “The limitations I’ve identified are identified from a different skill set than a clinician’s skill set. They’re to do with the skills required to appropriately synthesize data.
“Most clinicians do not have advanced training in these areas, so mistakes are likely to be made.”
Dr. Paul Moayyedi, a gastroenterology professor at McMaster University who has published more than 150 peer-reviewed articles and is one of the authors of the Canadian statement on biosimilars, said he has not accepted money from industry and therefore has no conflicts.
“[This debate] is complex, that’s for sure. But I do feel that B.C. and Alberta’s position, which I understand as essentially forcing a switch, it’s not the best way to go about it from a clinical perspective,” he said.
“I can certainly see why they’d want to do it … but I’m really focused on evidence and we don’t have the evidence yet to make sure it’s safe to do that. As such, I’d really prefer for a more thoughtful, gradual switch.”
Moayyedi said he’s further concerned due to the fact that Janssen, the makers of Remicade — one of the biologics for Crohn’s patients impacted — said it had reached out to the government to offer the product at a cost comparable to biosimilars.
Moayyedi said his opinion may change as more evidence accrues — but that at this juncture, he is advising against the government’s current strategy.
“The government clearly has an agenda, which is to save money, and they believe this is the right way to do it,” he said.
“Of course, they want patients to get better as well. But to me, it’s important to have a proper dialogue that’s respectful, really takes both of these things into account and heavily involves patients.”
Alberta prosecutors want the province’s top court to find two parents guilty of criminal charges connected to the 2012 death of their toddler despite a judge acquitting the pair last month.
David and Collet Stephan were tried this summer on charges of failing to provide the necessaries of life to their 19-month-old son Ezekiel, who was treated with natural remedies instead of being taken to a doctor.
Now, the Crown has filed an appeal, alleging, among other grounds, that the trial judge displayed bias in his decision for comments made about the accent of an African-born doctor — who was a witness for the prosecution — which prompted a complaint to the Canadian Judicial Council.
David Stephan says he has no comment at this time but will be publishing a Facebook post later today to address the day’s development.
In his decision last month, Court of Queen’s Bench Justice Terry Clackson sided with the defence’s medical experts in finding the boy had viral, not bacterial, meningitis and ultimately died of a lack of oxygen.
Days before the deadline, the Crown filed notice asking the Alberta Court of Appeal to either substitute a guilty verdict or order a new trial, which would be the couple’s third.
The Stephans were originally found guilty by a Lethbridge jury in 2016. While the Alberta Court of Appeal upheld the conviction, the Supreme Court of Canada ordered a second trial after ruling the first judge erred in his instructions to the jury.
Judge erred, Crown alleges
Four grounds are listed in the Crown’s notice of appeal, including that the judge erred “in establishing a medical standard unknown to law.”
The document also suggests the judge’s comments in the trial “gave rise to a reasonable apprehension of bias” and that there was further error in Clackson’s assessment of credibility when he took into account “irrelevant considerations.”
Clackson came under fire for comments he made about Crown witness Dr. Bamidele Adeagbo, a forensic pathologist who speaks with a thick Nigerian accent.
The judge called Adeagbo’s enunciation “garbled.”
A complaint filed with the Canadian Judicial Council asks for an investigation into Clackson’s comments, which “could be evidence of racism.” The complaint was signed by 42 doctors, lawyers and professors.
After he and his wife were found not guilty on Sept. 19, Stephan said his case “helps protect parental rights” so that parents won’t be held criminally liable if they choose alternative treatments for their sick children.