COURT FILE NO.: 00-CV-199551

DATE: 20190510

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: REGINALD BARKER, JEAN-PAUL BELEC, ERIC BETHUNE (formerly Jean-Jacque Berthiaume), JOSEPH BONNER, WILLIAM BRENNAN by the Estate Trustee MAXWELL BRENNAN, STEPHEN CARSON, ROY DALE, MAURICE DESROCHERS by the Estate Trustee LORRAINE DESROCHERS, DONALD EVERINGHAM, JOHN FINLAYSON, ROBERT FROST, TERRY GHETTI, BRUCE HAMILL, ELDON HARDY, WILLIAM HAWBOLDT by the Estate Trustee BARBARA BROCKLEY, DANNY A. JOANISSE, RUSS JOHNSON, STANLEY KIERSTEAD, DENIS LEPAGE, CHRISTIAN MAGEE, DOUGLAS McCAUL, BRIAN FLOYD McINNES, ALLEN McMANN, LEEFORD MILLER, JAMES MOTHERALL by the Estate Trustees DEBORAH KAREN MOROZ and JANE ALEXIS MARION, MICHAEL ROGER PINET, EDWIN SEVELS, SAMUEL FREDERICK CHARLES SHEPHERD and SHAUNA TAYLOR (formerly Vance H. Egglestone), Plaintiffs

– AND –

ELLIOTT THOMPSON BARKER, GARY J. MAIER and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Joel Rochon, Peter Jervis, and Golnaz Nayerahmadi, for the Plaintiffs

William Black, Meghan Bridges, and Sam Rogers, for the Defendants, Elliot Thompson Barker and Gary J. Maier.

Sara Blake, Ann Christian-Brown, and Meagan Williams, for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: May 10, 2019

HEARSAY EVIDENCE

[1] The Defendants bring a mid-trial motion to exclude on the grounds of hearsay certain evidence sought to be admitted by the Plaintiffs.

[2] The evidence in question has to do with the Plaintiff, James Motherall, deceased. Mr. Motherall, like all of the Plaintiffs, was an involuntary patient at the Oak Ridge division of the Penetanguishene mental-health centre during the 1970’s, and has brought this action seeking redress for what he contends are the wrongs that he experienced there. Mr. Motherall died a year ago and his claim has been continued by the co-executors of his estate. During his lifetime he was never examined under Rule 36.01 of the Rules of Civil Procedure to preserve his testimony for trial.

[3] Counsel for the Plaintiffs has called one of Mr. Motherall’s co-executors, Jane Marion, to testify. Although there was initially a challenge by Defendants’ counsel to some of Ms. Marion’s proposed testimony – specifically, to Plaintiffs’ counsel’s proposal that Ms. Marion relay to the court what Mr. Motherall told her during the last years of his life about his time in Oak Ridge – that controversy has now been resolved by agreement among counsel.

[4] Ms. Marion will only testify as to her direct knowledge of matters in issue – i.e. Mr. Motherall’s later years in Stoney Mountain Institution in Manitoba, his discharge from that facility and his subsequent life when he had a close relationship with Ms. Marion and her family. She will not relate any hearsay about what she did or didn’t hear from Mr. Mortherall about his life before she became acquainted with him.

[5] Counsel for the Plaintiffs also proposes calling a documentary filmmaker, Reginal Sherren, who in 2016 made a documentary for the CBC entitled “The Secrets of Oak Ridge”. That film featured Mr. Motherall in focusing attention on the activities at Oak Ridge during the time Mr. Motherall spent there. Mr. Sherren’s evidence would involve introducing video footage that he made in anticipation of a follow-up to his 2016 film. That footage is raw, unedited material showing an interview that Mr. Sherren conducted with Mr. Motherall the month before his death.

[6] Plaintiffs’ counsel characterizes the video footage as necessary for a number of reasons, the foremost of which is that it demonstrates Mr. Motherall’s sincerity in testifying as to what he experienced at Oak Ridge. In making this point, counsel points out that some of the expert reports that have been tendered by the Defendants go to some lengths in attacking the credibility of all of the Plaintiffs, and in particular of Mr. Motherall. Plaintiffs’ counsel submits that the videotaped interview is the best available way for Mr. Motherall to defend his own credibility from the grave, as it were.

[7] Plaintiffs’ counsel has pointed me to the expert report of Dr. Vernon Quinsey dated March 14, 2019. Although Dr. Quinsey apparently did not interview or otherwise examine any of the Plaintiffs, he makes some generalized assertions about their potential credibility. For example, he paints the Plaintiffs with the broad brush of psychosis and uses this as a means of suggesting that their veracity by discounted:

…most of the claimants have been diagnosed with psychopathy or APD. Frequent pathological lying is one of the hallmarks of psychopathy; in addition to ‘pathological lying’, another PCL-R [Psychosis Checklist – Revised] item is ‘conning and manipulative’.

[8] Dr. Quinsey then seeks to challenge Mr. Motherall’s credibility in particular by making reference to notations made in his file around the time of his entry into Oak Ridge. These observations are, of course, made by Dr. Quinsey many decades after the facts to which they relate.

Mr. Motherall was first admitted to Oak Ridge on a Warrant of Remand in 1973. Clara Schmitz, case historian, noted that Mr. Motherall had no school problems and no drinking or drug problems but that ‘Patient was also said to be a chronic liar, often without motive.’

[9] I understand why Plaintiffs’ counsel would want to bring the strongest form of evidence at his disposal to counter these suggestions by Defendants’ expert. Without commenting further on Dr. Quinsey’s report – I will presumably be hearing Dr. Quinsey testify later in the trial and will reserve any assessment of his report until that time – it seems to me that Plaintiffs’ counsel may be exaggerating the importance of these credibility challenges. Dr. Quinsey’s description of psychosis may or may not pertain to Mr. Motherall or any of the other patients; what is certain is that the original medical records of each of them has been preserved as is in the record of evidence before me. I do not really need a doctor who has not examined the patients to read their files some 40 years later and tell me what he sees there.

[10] Moreover, Dr. Quinsey’s specific observations about Mr. Motherall are not only hearsay, they are triple hearsay. He relies on notes written by a ‘case historian’ that will apparently not be called as a witness, who herself uses the passive voice in describing Mr. Motherall – “patient was also said to be…”, thereby revealing that she herself relied on the information relayed to her by others. The admissibility of this report, or certain statements in this report, is not in issue in this motion. However, even if it is admitted into evidence, it is no great challenge to counter triple hearsay of this nature.

[11] I have not seen the video footage of Mr. Motherall’s interview shot by Mr. Sherren. However, I note that it is not an interview that was conducted in particularly reliable circumstances as we understand that term in the law of evidence. Mr. Motherall was not sworn and was not cross-examined on his statements. He was asked to relate his experiences without any means of testing the veracity of his comments.

[12] Furthermore, the interview was conducted in the context of a follow-up piece to a well-known documentary film which had a clear advocacy slant. The name of the film says it all – it’s not quite “The Cabinet of Dr. Caligari”, but it’s close. While the raw interview footage at issue here is not actually from “The Secrets of Oak Ridge”, Mr. Motherall was very familiar as a featured interviewee in that film and understood that this new interview was being conducted by the same filmmaker.

[13] In saying that the reliability of the proposed video is suspect, I do not in any way mean to impugn Mr. Sherren’s work as a documentary filmmaker. Plaintiffs’ counsel has gone to some lengths in describing the sophistication and respectability of his work, and I have no reason to doubt it. My comments are certainly not offered as a criticism of Mr. Sherren’s journalistic integrity. But a good, credible documentary is not the same as good, credible testimony in court. While it is perfectly legitimate for a film to have a prejudicial effect on one side or other of a story – award winning documentary films are often made with this very purpose in mind – that is not the case for trial evidence.

[14] As the Supreme Court of Canada indicated in R. v Khelawon, 2006 SCC 57 at paras 42, 47, hearsay is presumptively inadmissible unless it is shown on a balance of probabilities to meet the criteria of necessity and reliability under what is called the principled approach. The party intending to introduce the hearsay bears the onus demonstrating that the criteria of necessity and reliability are met: R. v. Chretien, 2014 ONCA 403, at para 45. Mr. Sherren’s evidence and the video footage of his interviews with Mr. Motherall do not meet these criteria.

[15] More to the point, hearsay evidence is admissible where it is the “best available form” of the evidence: R v Couture, 2007 SCC 28, at para 79. In the instant case, the best available form is not unsworn film footage but rather is the sworn testimony given by Mr. Motherall at discovery. He was examined on December 19, 2014, for what I understand was the better part of a day, at a time when he was in good health. There is a 264 page transcript which goes into great depth with respect to Mr. Motherall’s experiences at Oak Ridge, and which, under oath and tested by questioning from opposing counsel, provides the best available narration of Mr. Motherall’s first hand experiences.

[16] Combined with the transcript of discovery is a sworn affidavit prepared by Mr. Motherall in support of a summary judgment motion brought earlier in these proceedings. That affidavit not only summarizes much of the narrative on which his claim is based, but it appends as exhibits the bulk of Mr. Motherall’s medical file and records from Oak Ridge. Under the circumstances, the sworn affidavit and the transcript of the examination for discovery are far more reliable than anything else that has been proposed as evidence on Mr. Motherall’s behalf.

[17] In order to be admissible, a hearsay statement must be sufficiently reliable to overcome the dangers that arise from the fact that it was made in circumstances which do not allow it to be tested at trial: R v Post, 2007 BCCA 123 at para 47. The circumstances of the hearsay evidence challenged in this motion – specifically, the video footage of Mr. Motherall’s interview – give me pause in this respect: see R v. Bradshaw, 2017 SCC 57 at para 28.

[18] I find that Mr. Sherren’s proposed testimony and the video footage he made of an interview with Mr. Motherall are not admissible at trial.

Morgan J.

Date: May 10, 2019