Superior Court of Justice - Ontario

COURT FILE NO.: 00-CV-199551

DATE: 20191017

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 and Golnaz Nayerahmadi, for the Plaintiffs

William Black, Meghan Bridges, and Bonnie Greenaway, 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: October 16, 2019

EXPERT WITNESS – STANDARD OF CARE AND CAUSATION

[1] In this voir dire the Plaintiffs challenge the qualification of one of the Defendants’ proposed expert witnesses, Dr. Graham Turrall. They submit that he lacks the credibility required of a person called to give expert opinion evidence, and that in any case his evidence is not necessary for the trial.

[2] In my endorsement of October 15, 2019 with respect to another proposed expert in this trial, I reviewed the leading cases on the qualification of expert witnesses called to give opinion evidence: see Barker v Barker, 2019 ONSC 5906. I will not repeat my review of all of that law here, although much of it applies equally to this objection raised by the Plaintiffs. For the sake of time I will confine myself here to the basic principles.

[3] The Supreme Court laid out the approach to expert evidence in R v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9. The four-part test was summarized most succinctly again by the Supreme Court in White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, para 19:

To address these dangers, Mohan established a basic structure for the law relating to the admissibility of expert opinion evidence. That structure has two main components. First, there are four threshold requirements that the proponent of the evidence must establish in order for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert. Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect – a residual discretion to exclude evidence based on a cost-benefit analysis. [citations omitted]

[4] Defendants’ counsel seeks to qualify Dr. Turrall as an expert in clinical psychology, methodology and research. In producing his expert report, which I have reviewed for this voir dire, Dr. Turrall’s mandate was to address issues of the reasonableness of the programs in which the Plaintiffs participated at the Oak Ridge Division of the Penetanguishene Mental Health Centre (“Oak Ridge”) from 1965 to 1983. This includes questions of standard of care, ethics medical ethics and informed consent, and the characterization of the programs as research versus treatment (which for convenience I will refer to collectively as “standard of care” issues). Dr. Turrall’s mandate also covered causation issues with respect to certain of the individual Plaintiffs. To that end, his expert report reviews the medical records of Joseph Bonner, Donald Everingham, Terry Ghetti, Daniel Joanisse, Russel Johnson, Brian McInnes, and John Finlayson.

[5] Counsel for the Plaintiffs does not deny that all of these issues are relevant to the issues in the trial and that there is no exclusionary rule barring the admissibility of Dr. Turrall’s evidence. The Plaintiff’s objection centres on whether Dr. Terrall is a properly qualified expert and whether his proposed evidence is necessary in order to assist me as trier of fact.

[6] Dr. Turrall has relevant experience and good academic credentials. He is a practitioner in clinical psychology, with considerable experience in assessing psychopathy and other mental disorders. He has also been consulted by Peel Board of Education to assess programs for at-risk students. Early in his career he worked for the Ministry of Correctional Services at the Oakville Assessment Centre. There he helped develop a maximum security treatment centre for young people and acted as a facilitator for communication between different staff groups to establish a coordinated treatment program.

[7] Dr. Turrall was chief psychologist for the MetFor program at Clarke Institute which did risk assessment for people found to be Not Criminally Responsible. He has also been an adjunct professor and graduate student supervisor at UT/OISE. Since 1993 he has been a member of the Ontario Review Board.

[8] In terms of academics, Dr. Turrall has a doctorate in education from Boston University. He has been a member of the Ontario College of Psychologists since 1976, and has been conducting research and publishing in psychology since that time (including a number of publications in peer reviewed journals and technical reports presented at conferences or psychology symposiums). In the early 1980s he was a visiting scholar at Stanford University studying neuropsychology.

[9] Plaintiffs’ counsel’s objection is not so much to his credentials (although he complains that part of the role that Defendants propose Dr. Turrall play is to evaluate the Defendants’ use of drugs in the treatment of the Plaintiffs, and as a psychologist the prescribing of drugs is not part of his practice or expertise). For the most part, what the Plaintiffs object to is Dr. Turrall credibility as an expert witness. Specifically, they point to a number of pages in his report where the work is clearly not his own. Plaintiffs’ counsel says that this makes him unreliable as an expert on any aspect of the report, and that on this basis he should not be qualified as an expert witness.

[10] In cross-examining another of the Defendants’ expert witnesses, Dr. Jonathan Freedman, Plaintiffs’ counsel highlighted for the court a marked resemblance between Dr. Turrall’s report and Dr. Freedman’s report. Entire sentences and paragraphs seemed to be identical, or nearly identical. When questioned about this at trial last week, Dr. Freedman appeared to see this for the first time and was taken by surprise by the similarities in the two reports. Upon reflection, he indicated that he had been consulted by Dr. Turrall in a previous case in which Dr. Turrall was an expert witness, and that in 2010 he had written a memo to Dr. Turrall for his use in that case.

[11] That previous case, Smith v. Barker, was commenced in the late 1990s, a year or two prior to the initial version of the present case. It entailed a claim against the present Defendants by a plaintiff who, like the Plaintiffs herein, had been a patient at Oak Ridge in the 1970s and had undergone the same programs as the present Plaintiffs. In 2010, Dr. Turrall produced an expert report in the Smith case which, as here, dealt with, inter alia, standard of care issues. In response to the cross-examination questions posed to him, Dr. Freedman surmised that Dr. Turrall must have used his 2010 memo for the Smith case as a basis for his expert report in the present case.

[12] Having heard that testimony, Plaintiffs’ counsel requested that Defendants’ counsel produce a copy of the 2010 Freedman memo, which they did earlier this week. In cross-examining Dr. Turrall, Plaintiffs’ counsel was able to demonstrate that Dr. Turrall’s expert report in Smith was based largely on Dr. Freedman’s memo to him, complete with entire unattributed paragraphs reproduced verbatim from Dr. Freedman’s 2010 memo.

[13] That pattern was then reproduced by Dr. Turrall for his report in the present trial. Plaintiffs’ counsel went to considerable effort cross-referencing passages in the report, revealing the fact that a substantial portion of Dr. Turrall’s present report is again copied word-for-word, or nearly so, from Dr. Freedman’s 2010 memo. Given the pattern of replication, it turns out that not only are substantial portions of Dr. Turrall’s 2019 report the same as Dr. Freedman’s 2010 memo, but they are identical to Dr. Freedman’s 2019 report herein.

[14] The overlap between the current Turrall report and the current Freedman report and 2010 Freedman memo is not trivial or inconsequential. For example, Dr. Turrall’s analysis of recidivism among psychopaths is borrowed word-for-word from Dr. Freedman’s analysis. Likewise, the crucial Opinion section of the current Turrall report is taken almost verbatim from Dr. Freedman. Dr. Turrall states that Dr. Barker “travelled around the world looking at programs that seemed to work before he started at Oak Ridge. That is not something he would do if he were not serious. Also, I found no indication that he tried to ‘cash in’ on his program.” Those words, and others that go on for several paragraphs that encompass nearly all of the Opinion portion of Dr. Turrall’s report, appear as a cut-and-paste from Dr. Freedman’s opinion in Smith.

[15] When pressed for an explanation of these apparent borrowings from someone else’s work, Dr. Turrall at first indicated that he and Dr. Freedman were obviously reading the same source material in doing their research. He observed that it was little wonder, therefore, that they came up with the same analysis and opinions. This was a phenomenon he referred to as “inter-reader reliability” – i.e. two scholars discussing the same subject matter and drawing from the same sources.

[16] In making this point, Dr. Turrall pointed out that the footnotes in his report are the same as those in Dr. Freedman’s report, suggesting that they were both accessing the same literature. Of course, the footnotes to which he referred were essentially the footnotes to the portions of the text copied from Dr. Freedman, and so it stands to reason that the footnotes may have been picked up and copied along with the text.

[17] That explanation, however, did not satisfy Plaintiffs’ counsel, who in cross-examination pressed Dr. Turrall a bit further with the fact that crucial passages in his report not only express ideas similar to those of Dr. Freedman, but are literally photocopied from Dr. Freedman. In response, Dr. Turrall conceded that he had used Dr. Freedman’s work as his own. His explanation for doing so was that in the Smith case he had hired Dr. Freedman as his consultant. In his view, he had, in effect, bought and paid for Dr. Freedman’s words, which now for all intents and purposes belonged to Dr. Turrall. As Dr. Turrall put it on the witness stand:

Q: These were the arguments of Dr. Freedman, the research of Dr. Freedman, and the opinions of Dr. Freedman, and you adopted them?

A: Yes, notwithstanding that he had a PhD, he was like an articling student for me.

[18] Oddly, Dr. Turrall also insisted in his testimony that in writing his 2019 report he had no access to a copy of Dr. Freedman’s 2010 memo and did not know that Dr. Freedman had himself written a 2019 report for the present trial. The 2019 Turrall report contains a lengthy list of literature reviewed in preparing it, and among the entries is a report authored by Dr. Freedman “circa 2018”. This reference causes some confusion. Dr. Freedman authored a 2010 memo for the Smith case and a 2019 expert report for the present case, but he did not write any such report in 2018. Dr. Turrall seemed perplexed about that; ultimately, he could not really say which Freedman report he had relied on in copying Dr. Freedman’s words and inserting them as his own in his present report.

[19] Counsel for the Defendants was forthright in clarifying that point. She explained that Defendants’ counsel had indeed sent Dr. Turrall a copy of Dr. Freedman’s 2010 memo in the package of reading material they prepared for him in advance of his writing his report for this trial. Accordingly, much of what appears in the standard of care section of the 2019 Turrall report was originally written by Dr. Freedman for his 2010 memo. Much of the same material also found its way into the 2019 Freedman report since Dr. Freedman relied on his own prior research and analysis.

[20] I am therefore confronted with two very similar – indeed, partially indistinguishable – expert reports. One of them, Dr. Freedman’s, was entirely written by its named author and has already been adduced into evidence and made an exhibit at trial. The other, Dr. Turrall’s, is the subject of this voir dire. It was written in important parts by someone other than its named author – i.e. it was written by Dr. Freedman – who has already been qualified as an expert with respect to the standard of care issues that it covers. One such report will suffice for this trial; I do not need two reports addressing the same standard of care issues in identical language.

[21] Accordingly, Dr. Turrall’s report on standard of care issues does not pass the necessity test. I already have Dr. Freedman’s report and testimony covering the same ground. Contrary to the threshold requirements in Mohan, Dr. Turrall’s opinion evidence on these issues is not necessary to assist the trier of fact.

[22] Although Dr. Turrall has written only one expert report for use in this trial, it is in fact divided into two parts. The first part is substantially borrowed from Dr. Freedman, while the second part deals with causation issues with respect to seven individual Plaintiffs and does not borrow from Dr. Freedman’s work. The second half of the report is based on Dr. Turrall’s review of the medical records of those seven people, and contains his assessment of whether any of the were caused harm by the Oak Ridge programs in question. Dr. Freedman did not opine on any causation issues and did not examine the medical records of any individual Plaintiffs.

[23] As a clinical psychologist with some 40 years experience, Dr. Turrall is qualified to give expert opinion evidence on the causation issues he has addressed. The Defendants have divided up the work so that each of the Plaintiffs is the subject of one of their experts on causation. I have little hesitation in stating that this expertise is both relevant and necessary to assist me in my role as trier of fact. The causation part of Dr. Turrall’s 2019 report has not been specifically challenged by the Plaintiffs, except for the argument that the flaws in the standard of care portion of the report undermine Dr. Turrall’s credibility at large.

[24] I agree that Dr. Turrall was confused about how and when he relied on Dr. Freedman’s reports. In the result produced a report whose opinions with respect to standard of care-related issues are not useful.

[25] That said, I do not view his credibility as having been undermined in a general sense. I see the problems with his report as stemming from confusion and undue reliance on what he thought was someone else’s research commissioned for his own use, and not from any devious or stealthy motive. The first half of Dr. Turrall’s report submitted here is useless to me, but not in a way that impacts on my ability to hear and permit into the record the second half of that report.

[26] In this hybrid trial, each expert witness’ report is being submitted into evidence as an exhibit and forms the bulk of each expert’s evidence in chief. Since the causation issues are addressed separately from the other issues, I will admit the 2019 Turrall report into evidence insofar as it addresses those issues alone.

[27] I understand that Dr. Turrall will not be testifying until next week, which leaves time for him and Defendants’ counsel to edit and re-fashion his report. Dr. Turrall’s expert report is not to be added to, but it would be convenient if it were revamped it so that it contains only the causation portion of the report – that is, only the portion of the report that addresses the causation of harm to the seven individual Plaintiffs whose records Dr. Turrall has examined. The entire standard of care portion of the report should be excised from this new version. Once Dr. Turrall’s expert report is in a form that is limited to the causation issues, I will be prepared to have it adduced into evidence at trial.

[28] Dr. Turrall is hereby qualified to testify at trial as an expert in clinical psychology. His opinion evidence is to be limited to issues of causation with respect to Joseph Bonner, Donald Everingham, Terry Ghetti, Daniel Joanisse, Russel Johnson, Brian McInnes, and John Finlayson.

Morgan J.

Date: October 17, 2019