Court File and Parties

COURT FILE NO.: 00-CV-199551 DATE: 2019-06-05 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, Sam Rogers, and Meghan Bridges, for the Defendants, Elliot Thompson Barker and Gary J. Maier Sara Blake, Meagan Williams, and Ann Christian-Brown, for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: June 4, 2019

MEDICAL ETHICS EXPERT EVIDENCE

[1] Law, according to Justice Holmes, addresses the “material consequences” of human conduct, while ethics locates “reasons for conduct…in the vaguer sanctions of conscience”: Oliver Wendell Holmes, “The Path of the Law”, 10 Harv. L. Rev. 457, 459 (1897). There is distinction, to be sure, but the line is not always apparent to the untrained eye.

[2] The Defendants bring a mid-trial motion, which I have heard as a voir dire, to determine the admissibility of the proposed testimony of Professor Bernard Dickens and his expert reports dated April 24 and 25, 2019 (the “Reports”). Counsel for the Plaintiffs have proffered Prof. Dickens as an ethicist giving expert opinion evidence on what he calls the ethical standards of psychiatric care applicable in the 1960s and 1970s when the events at issue in this trial took place.

[3] The allegations and evidence thus far in the trial concern the treatment of the Plaintiffs, all of whom were psychiatric patients held at the Oak Ridge Division of the Penetanguishine Mental Health Centre. The Plaintiffs were all involuntary inmates in Penetanguishine, for the most part held under Lieutenant Governor’s warrants after having been found, in the language of the era, not guilty by reason of insanity. The treatment programs at issue were conducted in what was called the Social Therapy Unit (“STU”) of Oak Ridge, and were designed and implemented by two of the Defendants, Dr. Elliott Barker and Dr. Gary Maier. Both doctors were engaged in the practice of psychiatry at Oak Ridge during the relevant period, and have both written in professional journals about their treatment theories and the programs at the STU.

[4] The programs are highly contentious between the parties, although factually the descriptions provided by many of the Plaintiffs are not far from the descriptions provided by Drs. Barker and Maier in their own writings. I hasten to add, however, that at this point in the trial I have not yet heard the Defendants’ case, and I am not in a position to determine how, exactly, the materials published by the two doctor Defendants relate to the programs which the Plaintiffs were put through.

[5] To state the common denominators among the Plaintiffs (and without pre-judging any findings to be made at the end of trial), the programs included, but were not limited to, subjecting individual Plaintiffs to intense sessions for up to two weeks in a small, specially designed “capsule” enclosure with 4 or 5 others. During this time, the subjects of the treatment were kept naked or wore only a coarse sack, had no solid food and were fed liquids by means of straws through a hole in the wall, shared a single, exposed toilet with no washing facilities, were kept under constant bright lights and 24/7 observation by other inmates/patients, and were administered “combinations of hallucinogenic, delirium-producing, psychosis-producing or mind-altering drugs”: Barker v Barker, 2018 ONCA 255, at para 4. To use the most neutral terms available, the Defendants characterize the treatment as therapy while the Plaintiffs characterize it as research.

[6] Professor Dickens has been proposed by the Plaintiffs as an expert in:

(i) The applicable international and domestic ethical standards and guidelines, that governed ethical medical research on human subjects in Canada during the period that the impugned programs were run in the STU at Oak Ridge, and whether the conduct of the Defendants violated those standards of medical research;

(ii) The applicable standards of ethical medical practice in effect in Canada during the relevant period, and whether the Defendants violated those standards in the conduct they subjected the plaintiffs to at the STU in Oak Ridge; and

(iii) The ethical duties of the Province of Ontario to the Plaintiffs as patients in a government run psychiatric hospital.

[7] Prof. Dickens has, among other degrees, doctorates in law, criminology, and medical jurisprudence. He is a member of the Ontario bar and an English barrister and member of the Inner Temple. He is Professor Emeritus of Health Law and Policy in the Faculty of Law, the Faculty of Medicine, and the Joint Centre for Bioethics at the University of Toronto. He was founding chair and is a current member of the Public Health Agency of Canada’s Ethics Advisory Committee (now known as the Public Health Ethics Consultative Group). He is also chair of the Human Subjects Ethics Review Committee of the University of Toronto, and from 1995 to 1999 was chair of the Human Subjects Research Ethics Committee of the Ottawa-based National Research Council of Canada. He is currently on the editorial board of, inter alia, the Journal of Ethics and Mental Health, BMC Medical Ethics, the International Journal of Gynecology and Obstetrics, and the McGill Journal of Medicine.

[8] In addition to all of that, Prof. Dickens has in the past been a member of the Human Experimentation Committee for the Hospital for Sick Children and for University of Toronto, by virtue of which he also served in the 1980s as a member of the Human Experimentation Committee for the Clarke Institute of Psychiatry. He was in the Working Group of the Medical Research Council of Canada, the Social Sciences and Humanities Research Council of Canada, and the Natural Sciences and Engineering Research Council of Canada, and in that capacity is one of the authors of the Tri-Council Policy Statement on Ethical Conduct for Research Involving Humans (1998) (the “Tri-Council Policy”). The Tri-Council Policy contains the ethical guidelines for Canada’s three major research funding agencies.

[9] Prof. Dickens is a frequently cited scholar in the ethics of medical research and treatment. His rather lengthy list of publications is not just aimed at academic colleagues and researchers, but also includes numerous studies entitled “Bioethics for Clinicians” which address various aspects of medical practice. He is a Fellow of the Royal Society of Canada and an Officer of the Order of Canada.

[10] Counsel for the Defendants submit that Prof. Dickens is not trained as a physician, has never practiced as a psychiatrist or psychologist, and is therefore not qualified to give expert opinion evidence on the standards applicable to the Defendants’ treatment of the Plaintiffs. Defendants’ counsel also submit that his Reports stray into – indeed, are primarily composed of – legal analysis. They contend that whatever the strength or weakness of Prof. Dickens’ legal arguments might be, they are not properly the subject of an expert report.

[11] Prof. Dickens has consulted, researched, and written extensively in the medical ethics field – his C.V. lists more than 450 separate publications, including over 50 dealing specifically with issues surrounding informed consent. He testified that his teaching has focused on issues of consent of vulnerable individuals (infants, geriatric patients, etc.) to medical treatment, which is a topic that is highly relevant to the Plaintiffs’ claim. He has served on numerous ethics review boards and committees charged with approving experimental treatments and medical and psychiatric research projects involving human subjects. In addition, he has for many years taught courses on medical ethics not only in the law school but in the medical school at the University of Toronto. In this capacity he has been training students to achieve the very degree qualification that Defendants’ counsel say would make him more acceptable as an expert here.

[12] I have no hesitation in saying that Prof. Dickens’ credentials qualify him for the task at hand. The fact that he is not a physician by profession does not mean that he does not have the expertise necessary to give evidence on the ethical aspects of medical practice; indeed, there are doubtless few others in Canada who would be equally qualified. Prof. Dickens is not being asked to evaluate the medical efficacy of any given procedure, any more than he is asked to do so on the various hospital ethics and research committees on which he sits. Rather, he is being asked to provide an ethical assessment and an evaluation of the ethical protocols involved in the treatment programs implemented by the Defendants.

[13] If there is any cause for concern with respect to Prof. Dickens’ Reports, it is not with respect to his credentials. They are quite stellar and directly on point for the issues in this trial. Rather, the question that needs to be addressed here is with respect to the contents of the Reports, and specifically whether they stray into law.

[14] The Supreme Court of Canada observed in R v Mohan, [1994] 2 SCR 9, 24, that “an expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury.” Accordingly, “…questions of domestic law…are not matters upon which a court will receive opinion evidence”: Canada (Board of Internal Economy) v Canada (Attorney General), 2017 FCA 43, at para 18. It is not an expert’s role to provide opinion evidence on questions of Ontario or Canadian law. Counsel will play that role. Well-credentialed as Prof. Dickens may be, as trial judge I do not need his input into the law.

[15] Defendants’ counsel submits that it is obvious that Prof. Dickens cannot provide expert evidence on the non-legal issues arising in this case, as he is not a psychiatrist and the Plaintiffs’ claim raises issues of psychiatric care. In the Defendants’ view, there are legal issues and medical care issues in this case, and no third area in which Prof. Dickens might be qualified. They say that if he is not making legal arguments in the guise of expert opinion, he must then be purporting to give expert evidence in the relevant psychiatric standards of care. They go on to say that Prof. Dickens cannot possibly give evidence on standards of psychiatric care as he is in the wrong profession to provide that evidence.

[16] In making this point, Defendants’ counsel rely on Galalae v Kingston (Police Services Board), 2013 ONSC 5153 for the proposition that in cases of professional negligence, the expert’s professional field and the Defendants’ field must match. At para 28 of Galalae, the court indicated that, “to support allegations of negligence…by a physician, the plaintiff must lead expert evidence of a physician practicing in that area of medicine attesting to the defendants’ failure to meet the standard of care required in such circumstances. These expectations apply equally in actions dealing with allegations against psychiatrists.”

[17] In further support of this submission, Defendants’ counsel point to Ter Neuzen v Korn, [1995] 3 SCR 674, paras 57-58, where the Supreme Court described the case as containing “difficult, uncertain, highly technical scientific questions requiring information not ordinarily expected of a practising gynaecologist or obstetrician”, and concluded that, “[i]n light of this characterization…the standard of care was not one which the jury could decide without the aid of expert evidence.” In the present case, Defendants’ counsel state that the Plaintiffs’ other expert witness, Dr. John Bradford, is a practicing psychiatrist and is the only expert produced by the Plaintiffs who is appropriately qualified to speak to the standard of care issues that arise in respect of the medical treatment engaged in by the Defendants. They contend that Prof. Dickens, as a legally trained professional, cannot play this role.

[18] With respect, Defendants’ counsel can only make this point by mischaracterizing the issues to which Prof. Dickens’ Reports are addressed. The Reports do not analyze the standard of care in psychiatric treatment applicable in the relevant era; rather, they analyze the ethical standards applicable at the time to the Defendants’ treatment of the Plaintiffs. To that end, Prof. Dickens focuses on such matters as the nature of informed consent for vulnerable patients, the application of international standards such as the Nuremberg Code and Helsinki Declaration of the World Medical Association on medical experimentation and human subjects, and the voluntary withdrawal of a patient from treatment. He does not focus on the medical effect of the programs designed and implemented by the Defendant doctors, although he does mention in passing that the doctors in their publications characterize the results as speculative. In the main, he focuses on the Defendants’ adherence to applicable ethical guidelines.

[19] Further, although the Nuremberg Code and Helsinki Declarations may be legal instruments in the soft law sense used in international discourse, see, e.g. Jan Klabbers, The Redundancy of Soft Law, 65 Nordic J. Int’l L. 167, 168 (1996); and Tadeusz Gruchalla-Wesierski, “A Framework for Understanding ‘Soft Law’”, (1984) 30 McGill L.J. 37, Prof. Dickens’ treatment of them is restricted to the ethical standards that they set rather than the legal consequences of their breach. Justice Horace Krever – who Prof. Dickens noted was his academic mentor when he first came to Canada several decades ago – noted in his Report of the Commission of Inquiry into the Confidentiality of Health Information (Ontario, 1980) (the “Krever Report”) that in the context of disclosure of medical records there is a practical overlap but a conceptual distinction between the ethical and the legal obligations of a physician: see McInerney v MacDonald, [1992] 2 SCR 138, citing 2 Krever Report 469. It is this line that Prof. Dickens treads in his Reports.

[20] In effect, Prof. Dickens addresses in the Reports the very types of questions he has been asked to evaluate in his capacity as a member of the experimentation and research boards of Sick Kids Hospital and the University of Toronto. Those boards, Prof. Dickens has explained, are composed of a combination of ethicists and physicians, with each addressing the question of medical procedures on human subjects from his or her own professional vantage point.

[21] Ethical issues of this nature are not entirely legal issues nor are they entirely medical issues, although they are obviously related to both. Ethics, and in particular medical ethics, comprises a discipline of its own. The Court of Appeal came to this conclusion in Teskey v Canadian Newspapers Co (1989), 68 OR (2d) 73, at para 45, where it opined that “the trial judge erred in holding that the expert’s views on the Rules of Professional Conduct should be treated as conclusions of law. Professional standards of conduct are not rules of law…”

[22] Moreover, contrary to Defendants’ counsel’s position, an expert in professional ethics – unlike an expert in professional standards of care – need not be a practitioner of that profession. In Stirrett v Cheema, 2018 ONSC 2595, the Plaintiff was the estate of a patient who died while participating in a medical research project. At para 33, Dow J. observed that “[t]he plaintiff called a professor of philosophy, Arthur Schafer, whose career has focused on ethical issues particularly in the medical field. He was tendered to give evidence as an ethicist… He admitted in cross-examination on his qualifications that he had no medical expertise”. Justice Dow then went on, at para 34, to conclude that “[h]is evidence was valuable in putting into context the procedures to be followed when conducting medical research on humans.”

[23] Where ethical protocols are front and centre in the litigation, illuminating them for the court can be a multidisciplinary exercise. In Stirrett, the appearance of a metaphysician rather than a physician as expert witness may have allowed the court to gaze directly into the soul of the case.

[24] Perhaps even more significantly, the Stirrett judgment goes on in para 34 to explain that, “As stated in the Tri-Council Policy it is necessary to protect a participant’s dignity and safety. This is also why research ethics boards exist…The decision on whether such research can proceed must be made by bodies independent of the group proposing the research…” As indicated, Prof. Dickens is a member of several such boards, which are composed of a multi-disciplinary group of professionals independent from the doctors carrying out the proposed program. Justice Dow concluded, at para 34, that this kind of expertise was highly relevant to the court’s analysis: “The requirements for conducting research on humans are detailed in the Tri-Council Policy Statement and Professor Schafer opined that [the doctor in Stirrett] failed to comply with the…requirements”.

[25] Plaintiffs’ counsel pointed out in argument that Professor Schafer, the expert witness in the Stirrett case, was a scholar who had read the Tri-Council Policy and was considered qualified to explain and apply its ethical standards. Plaintiffs’ proffered expert witness, Professor Dickens, is not just a scholar who has read and familiarized himself with the Tri-Council Policy, he is one of its authors. If Prof. Schafer had the requisite expertise to apply the Tri-Council Policy to the question of medical practice at issue in Stirrett, then Prof. Dickens certainly has the expertise to apply that policy to the programs at issue in Oak Ridge.

[26] The Court of Appeal has stated definitively that “the appropriateness of a proposed medical treatment for a particular patient is ‘not purely a medical concept’”, and that “[a] physician’s determination about whether treatment is appropriate includes not only medical facts like the projected chance of success but also ethical considerations”: Flora v Ontario Health Insurance Plan (2008), 91 OR (3d) 412, 2008 ONCA 538, at para 75. For this reason, an ethicist is an equally appropriate expert to testify here and provides a perspective as valid as that of a physician in the field.

[27] In the same way, an ethical evaluation of a particular medical or psychiatric project (whether characterized as treatment or research) is not a purely legal concept. Unlike a comparative legal exercise, an ethicist such as Prof. Dickens does not purport to survey the legal terrain to identify something like “an international global standard of constitutional law”: Board of Internal Economy, at para 21. Instead, he seeks to illuminate the factual and normative basis for the legal analysis to be provided by counsel at the end of trial. This is not legal analysis or interpretation, but rather is evidence necessary to “situate [the law’s] interpretation […] within its proper context”: Ibid, at para 25.

[28] In Daniels v Canada, (2013), 357 DLR (4th) 47, 2013 FC 6, an indigenous rights case, the Federal Court similarly accepted expert evidence to provide context essential to a proper understanding of the applicable law. Contextual evidence such as how the Oak Ridge programs fit into the Nuremberg and Helsinki paradigms is not itself a matter of law, but is ”of a more general nature and aim[s] to establish the purpose and background of [the law]”: Board of Internal Economy, at para 27. As Plaintiffs’ counsel put it in their submissions, the ethical standards opined upon by Prof. Dickens will provide the factual basis on which to assess liability, but are not directly applicable as liability rules.

[29] The best illustration of this is in the fact that Prof. Dickens discusses the ethical norms of the Nuremberg Code and Helsinki Declaration without any analysis of whether those international instruments are formally in force in Ontario or Canada. It is, of course, a matter of first principles in Canada that an international convention must be legislatively enacted by the relevant tier of government before it has domestic legal force: Attorney-General for Canada v Attorney General for Ontario (Labour Conventions case), [1937] AC 326. The reason for this omission by Prof. Dickens is that he is out to establish what he characterizes as universal ethical rules, not jurisdiction-specific liability rules. The former are appropriate for an expert ethicist to identify as a “sanction of conscience”, to use Justice Holmes’ phrase. The latter, on the other hand, will no doubt be argued by counsel at the end of the trial in an effort to identify any fiduciary duties which rest on the ethical findings.

[30] In yet another example, counsel for Ontario asked Prof. Dickens in cross-examination whether he had looked into questions of Crown liability and Crown immunity as part of his evaluation of the government’s ethical duties at Oak Ridge. He responded that he had not examined these questions as he was not concerned in the Reports to address strictly legal issues. Ontario counsel submitted that in ignoring the ramifications of Crown liability and immunity as set out in s. 5(1) of the Proceedings Against the Crown Act, RSO 1990, c. P.27, Prof. Dickens’ Reports are of no value to the court.

[31] To the contrary, I would say that Prof. Dickens’ ignoring of the Proceedings Against the Crown Act proves the Plaintiffs’ very point. There is a distinction, albeit a fine and sometimes imperfect one, between law and ethics. It takes an expert to elucidate the ethics side of the case in order to provide a proper factual footing on which counsel can mount the legal analysis.

[32] The Defendants’ motion to exclude the evidence of Professor Bernard Dickens is dismissed. Prof. Dickens’ is qualified to give evidence as an expert in medical ethics, as more specifically detailed in the three sub-topics identified in para 5 above. His two Reports are admissible in evidence and he may be called as an expert witness at trial.

Morgan J. Date: June 6, 2019