Superior Court of Justice - Ontario

COURT FILE NO.: 00-CV-199551

DATE: 20191206

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: Golnaz Nayerahmadi and Adam Babiak, for the Plaintiffs Sam Rogers, 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: December 6, 2019

ADMISSIBILITY OF PLAINTIFF’S EXPERT REPLY REPORT

A new Reply Report

[1] The Plaintiffs seek to submit a new Reply Report by their expert witness, Dr. John Bradford (the (the “Bradford Reply”). Dr. Bradford has already submitted three expert reports and has testified at trial. The experts called by the Defendants have also filed reports and have all completed their testimony. The Bradford Reply is being submitted in conjunction with his being re-called by Plaintiffs’ counsel.to testify in rebuttal now that the Defendants are closing their case.

[2] Counsel for both sets of Defendants object to all, or most of, the Bradford Reply. They bring a mid-trial motion to exclude this new evidence.

[3] In a previous ruling in this trial dealing with the admissibility of Sur-Reply Reports by the Defendants’ experts, I set out the basic principles governing the question of late filed expert reports. In general, the information addressed therein must be new and must be such that could not have been anticipated by the witness when preparing their report or testifying the first time around: Barker v. Barker, 2019 ONSC 3182, para 14.

[4] There is discretion to admit this kind of new expert evidence only where “the defence has raised some new matter or defence that the plaintiff had no opportunity to deal with and which the plaintiff could not reasonably have anticipated”: Sandhu v Wellington Place Apartments, 2008 ONCA 215, para 101. Further, the new evidence must be tendered in response to evidence that arose by the opposing side’s witnesses’ testimony in chief; it is not permissible to adduce new evidence in response to something that was only elicited from an opposing witness in cross-examination: Halford v Seed Hawk Inc., 2003 FCT 141, para 15.

[5] The Bradford Reply addresses 6 questions. Plaintiffs’ counsel argues that these all pertain to new matters that arose in the course of the Defendants’ experts’ testimony and that were unanticipated.

Question 1

[6] The first question asks whether antisocial personality disorder is properly considered a “mental illness”. The Bradford Reply addresses this in order to make it clear that, indeed, antisocial personality disorder is identified as a mental disorder in the Diagnostic and Statistical Manual of Mental Disorders, 4th and 5th editions (“DSM-4” and “DSM-5”).

[7] Plaintiffs’ counsel submits that one of the Defendants’ experts, Dr. Brad Booth, addressed this obliquely in his Report of April 2, 2019 by describing these types of disorders and indicating that they no longer meet the legal test of Not Criminally Responsible. She contends that it was only in Dr. Booth’s viva voce evidence that he made the point that such disorders are not, strictly speaking, a mental illness.

[8] Likewise, another of the Defendants’ experts, Dr. Stephen Hucker, testified: “Don’t think of psychopaths as sick…. Psychopathy is a shorthand way of talking about someone with a criminal lifestyle.” Dr. Hucker had not said this in his own expert report, and so Plaintiffs’ counsel says that it came as a surprise.

[9] I must concede that Dr. Hucker’s statement also came as a bit of a surprise to me. However, it was cleared up by Dr. Booth when he was crossed-examined. In response to questions by Plaintiffs’ counsel, Dr. Booth expressly stated that antisocial personality disorder is identified as a mental disorder in DSM-4 and DSM-5. There is no need for Dr. Bradford to further clear up this point, as Dr. Booth has already conceded the point that the Bradford Reply seeks to make.

Question 2

[10] The second question asks what were the characteristics of “Behaviour Modification Programs” as understood by psychiatry in the 1970s and 1980s. Specifically, was the Social Therapy Unit at Oak Ridge, and more specifically the Motivation Attitude Participation Program (“MAPP”), a Behaviour Modification Program or was it a punitive measure?

[11] This question was specifically raised by Defendants’ expert, Dr. Gary Chaimowitz, in his expert report, where he observed: “MAPP appears to have been a strict Behaviour Modification Program”. Defendants’ counsel takes the position that Dr. Bradford has already had an opportunity to reply to Dr. Chaimowitz’ report, and that the question of how to characterize MAPP is therefore not a new or unanticipated issue.

[12] Plaintiffs’ counsel concedes that Dr. Chaimowitz did not characterize MAPP as a Behaviour Modification Program for the first time in his oral testimony. She contends, however, that it is only during his viva voce evidence that this became a serious point, and that in his written report Dr. Chaimowitz had only made the one-sentence reference to MAPP “in passing”. Her further point is that the term “Behaviour Modification Program” is a term of art and was a recognized, legitimate type of psychiatric treatment in the 1970s, whereas the Plaintiffs’ witnesses (and, for that matter, some of the Defendants’ witnesses) have characterized MAPP as strictly punitive in nature.

[13] The fact is that during the course of this trial I have heard an enormous amount of evidence about MAPP, both from the Plaintiffs’ witnesses and the Defendants’ witnesses and, indeed, from the Defendant, Dr. Gary Maier, himself. I do not need more evidence about MAPP.

[14] Dr. Chaimowitz is an expert in forensic psychiatry who was qualified in this trial to give opinion evidence on causation, not on standard of care. If he used the term Behaviour Modification Program in his report or in his testimony, it is not evidence that was part of his causation opinion; rather, it was by way of commentary or background. It does not need to be responded to by Dr. Bradford, and to do so would only open up a new area of standard of care which need not be addressed in this way.

Question 3

[15] The third question asks whether lengthy exposure to solitary confinement is likely to cause harm to patients with antisocial personality disorder as opposed to patients with schizophrenia. Both Dr. Chaimowitz and Dr. Booth suggested in their testimony that the former group were less likely to suffer ill effects from segregation or solitary confinement than the latter group. The Bradford Reply is tendered in order to counter this suggestion.

[16] While it is the case that two of the Defendants’ expert witnesses raised this in their oral testimony, they specifically raised it in the course of responding to a published article by Dr. Stuart Grassian to which Dr. Bradford had referred extensively in his own report. Indeed, in the Bradford Reply he now does little more than confirm what he said in his initial report of January 8, 2019. In that report he spent some time explaining that he agrees with Dr. Grassian’s analysis and findings. There is no reason for him to have to do so again at this stage.

Question 4

[17] The fourth question asks whether segregation or solitary confinement in a prison setting is substantively different from, or will have a different impact than, segregation or solitary confinement in a hospital setting.

[18] Counsel for the Defendant, the government of Ontario, submits that while Dr. Chaimowitz did opine that segregation in a hospital setting would have a very different impact on a person than segregation in a prison setting, that opinion was also offered in response to Dr. Grassian’s article. She argues that since the Dr. Grassian article is already part of Dr. Bradford’s report and would not have been brought up by Dr. Chaimowitz on his own, this is not a proper subject to be addressed in a new report by Dr. Bradford. She contends that the real problem here is that Plaintiffs’ counsel simply did not like Dr. Chaimowitz’ answer.

[19] I am not certain that Dr. Chaimowitz’ expression of opinion in this regard was purely reactive. Counsel for the personal Defendants specifically asked him in his examination in chief: “How do you reconcile that opinion [about confinement in MAPP] with your opinion about solitary confinement?” Dr. Chaimowitz then answered that he sees the two as being quite different. He explained that in prison this practice was a matter of isolating problematic inmates without treatment, while the MAPP was intended to be part of a program that would make them well and better functioning.

[20] In my view, this is a new opinion that has not been squarely addressed before. Dr. Bradford may testify in response to Dr. Chaimowitz’ expressed view about the difference between segregating and confining a person within the two settings. This portion of the Bradford Reply may be submitted into evidence as an expert report, with the exception of para. 29. That paragraph mentions some new statistical data which is untested and for which the Defendants will not have an opportunity to respond, and so should be struck out.

Question 5

[21] The fifth question asks whether patients with antisocial personality disorder are less vulnerable to harm than the average person when it comes to humiliating, degrading, and sexually abusive experiences. Plaintiffs’ counsel submits that this issue comes up in response to Dr. Booth’s Sur-Reply Report, which added some new material that had not been delivered before Dr. Bradford’s testimony.

[22] In my ruling of October 4, 2019, I allowed Dr. Booth’s 3-page Sur-Reply into evidence because it is narrowly focused on answering previously unanticipated criticisms of his earlier report. This was not meant to prompt yet another Sur-Reply to the Sur-Reply creating an endless feedback loop. In the course of his Sur-Reply, Dr. Booth referenced Hervey Cleckley’s 1946 book The Mask of Sanity which describes that era’s understanding of psychopaths. The Bradford Reply now wants to respond by showing that, “We have come a long way since then in our understanding of personality disorders and trauma.”

[23] It is not necessary for Dr. Bradford to make that point. I already know that scientific and medical knowledge in late 2019 has come a long way from 1946.

[24] Plaintiffs’ counsel also submits that this question is aimed at addressing the specific question of how vulnerable individuals might have been harmed by the programs in issue in this trial. This question is addressed by Defendants’ expert, Dr. Graham Turrall, in his report. It could have been, and was, responded to in Dr. Bradford’s earlier Reply Report. Indeed, the Bradford Reply before me now addresses this question with the preface: “As I have described in my previous reports and testimony in court…”

Question 6

[25] The sixth question asks whether treating physicians would be expected to produce clinical records indicating that they accept and agree with the patient’s self-report of harm caused by prior trauma. The Bradford Reply is adduced to explain that while modern hospital accreditation requirements speak about the need for “trauma informed care”, this requirement is more honoured in its breach. Dr. Bradford seeks to opine that he would not expect a doctor to trace contemporary symptoms to decades-old trauma in the ordinary course of medical practice.

[26] Defendants’ counsel indicate that this appears to be an attempt to respond to a point that all of Drs. Booth, Bourget, Chaimowitz, and Turrall made with respect to their review of Plaintiffs’ medical records in an effort to discern evidence of harm. It is a brand new factual assertion in this regard that would itself require further response from Defendants’ experts.

[27] In my view, it also sets up a straw figure for Dr. Bradford to knock down. Defendants’ experts were looking for evidence of harm by seeing whether the Plaintiffs showed psychological or psychiatric symptoms that manifested and were treated later in their lives. They were not asking whether any treating doctors actually made a definitive causal link to the Plaintiffs’ experiences in the 1970s at Oak Ridge. Dr. Bradford’s input on this question is not necessary.

Disposition

[28] In the result, only Question 4 and its response (absent para. 29) is admissible as a new report by Dr. Bradford. He may testify at this point only with respect to the comparison between the effects of segregation or solitary confinement in a mental hospital setting as compared with a prison setting.

Morgan J.

Date: December 6, 2019