Court File and Parties

COURT FILE NO.: 00-CV-199551 DATE: 20200625

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

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, 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

Counsel: Joel Rochon, Peter Jervis, Golnaz Nayerahmadi, and Adam Babiak, for the Plaintiffs William Black, Sam Rogers, Meghan Bridges, and Bonnie Greenaway, for the Defendants, Elliot Thompson Barker and Gary J. Maier Sarah Blake, Ann Christian-Brown, and Meagan Williams, for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: April 29-May 7, May 16-23, May 22-June7, June 17-20, Oct. 3-23, Dec. 2-6, 2019, Jan. 27-31, 2020

E.M. Morgan J.

Reasons for Judgment

I. Introduction to the claim

II. The impugned programs

a) History and theory of the STU

b) Defense Disruptive Therapy

c) LSD

d) Total Encounter Capsule

e) Motivation, Attitude, and Participation Program

III. Informed consent

IV. Research and experimentation

V. Confinement and restraint

VI. Plaintiffs’ histories and individual causation

a) Reginald Barker

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

b) Jean-Paul Belec

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

c) Eric Bethune

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

d) Joseph Bonner

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

e) William Brennan

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

f) Stephen Carson

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

g) Roy Dale

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

h) Maurice Desrochers

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

i) Donald Everingham

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

j) John Finlayson

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

k) Terry Ghetti

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

l) Bruce Hamill

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

m) Eldon Hardy

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

n) William Hawbolt

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

o) Danny Joanisse

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

p) Russ Johnson

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

q) Stanley Kierstead

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

r) Denis LePage

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

s) Christian Magee

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

t) Douglas McCaul

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

u) Brian McInnes

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

v) Allen McMann

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

w) Leeford Miller

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

x) James Motherall

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

y) Michael Pinet

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

z) Edwin Sevels

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

aa) Samuel Shepherd

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

bb) Shauna Taylor

i) Pre-Oak Ridge and index offense

ii) Experience in the STU

iii) Post-Oak Ridge experience

iv) Causation and harm

VII. Causes of action

a) The Doctors’ breach of fiduciary duties

b) The Doctors’ intentional torts

c) The Crown’s breach of fiduciary duties

d) The Crown’s knowing assistance and vicarious liability

VIII. Liabilities and immunities of the Crown

IX. Limitations and laches

X. Summary of findings and disposition

I. Introduction to the claim

[1] The Plaintiffs were patients at the maximum-security Oak Ridge Division of the Mental Health Centre in Penetanguishene, Ontario (“Oak Ridge”), at various times between 1966 and 1983. Oak Ridge was (and its successor still is) a hospital facility for which the provincial Crown is by statute fully responsible.

[2] All of the Plaintiffs were involuntarily admitted to Oak Ridge. Some of those admissions came as a result of Warrants of Remand from the courts, penitentiaries, and reformatories, others pursuant to Warrants of the Lieutenant Governor after having been found not guilty by reason of insanity (in the terminology of that era), and still others were involuntarily committed under the version of the Mental Health Act applicable at the time.

[3] The action began its legal life in 2000 as a proposed class action, but has since been reconstituted as an individual action by the 28 named Plaintiffs. In a 2003 ruling that denied certification, Cullity J. identified the three programs at which the claim is specifically aimed: a mind-altering drug regime called Defence Disruptive Therapy (“DDT”), an isolation cell for group encounters, including hallucinogenic drug encounters, called the Total Encounter Capsule (the “Capsule”), and a strict physical disciplinary regime called the Motivation, Attitude, Participation Program (“MAPP”): Joanisse v Barker, 2003 CanLII 25791, at para 3. All three programs were carried out in the Social Therapy Unit (“STU”), a self-contained unit housed within Oak Ridge, primarily although not entirely run by either or both of the personal Defendants, Dr. Elliott Barker and Dr. Gary Maier (together, the “Doctors”).

[4] In 2018, the Court of Appeal reversed a summary judgment that had been granted to the Plaintiffs and remitted this action for trial: Barker v Barker, 2018 ONCA 255. The Court indicated that the matter was to proceed by “trial or summary trial as deemed appropriate to the Regional Senior Judge for the assignment of a trial judge”: Ibid., at para 26. As I indicated in my first trial management conference with counsel, in assigning a trial judge Morawetz RSJ (as he then was) did not pre-determine the trial procedures; rather, he noted the age of the case and emphasized the need to proceed with as little further delay as possible. He accurately stated that, “[a]ll parties recognize that this proceeding should be expedited.”: Barker v Barker, 2018 ONSC 3998, at para 4, quoting Morawetz RSJ endorsement.

[5] In an effort to expedite matters, the trial has proceeded as a hybrid summary and full trial. Each of the Plaintiffs has testified and been fully cross-examined in court. In addition, each has submitted an affidavit and/or agreed statement of fact which has served as part of their evidence in chief. While the initial plan for the trial was to have the affidavits and agreed statements entirely replace examination-in-chief for each of the Plaintiffs, it quickly became evident that testifying as to their own personal experience of Oak Ridge and the STU programs was an important part of the trial process that could not be entirely replicated by written evidence. Accordingly, each of the Plaintiffs had an opportunity to testify at some length in chief before being cross-examined in full.

[6] Similarly, each of the expert witnesses – 2 on behalf of the Plaintiffs and 7 on behalf of the Defendants – have testified and been fully cross-examined in court. By agreement of the parties, each has submitted his or her expert report and any supplementary or reply reports into evidence and those reports represent part of their evidence in chief. Likewise, a great deal of documentary evidence, including the Plaintiffs’ medical records and Dr. Barker’s and Dr. Maier’s published writings, have been included in the documentary record by consent of the parties. A representative of the Crown, George Kytako, the chief administrator of Penetanguishene from 1986 to 2005, also testified and was cross-examined at trial, and the Defendant, Dr. Maier, testified and was cross-examined as well. Of the Defendants, only Dr. Barker did not testify at trial as he was unable to do so due to health reasons.

[7] The Defendants also called as witnesses two other medical professionals associated with Oak Ridge at the relevant time. The first of those is Dr. Douglas Tate, a psychologist who was the Unit Director of the STU from September 1976 to December 1977 and who still works at Oak Ridge’s successor, Waypoint Centre for Mental Health Care (“Waypoint”). The other former member of the Oak Ridge medical staff called by the Defendants is Dr. Vernon Quinsey, who was a staff psychologist at Penetanguishene from 1971-1975 and who in 1975 became the first Director of Research at Oak Ridge.

[8] The trial of this matter has been scheduled in two parts, the first covering all liability, causation, defense and limitation issues, and the second covering quantification of damages. These reasons for judgment cover the first part; the second part is still to be tried. If not for this scheduling accommodation, the trial would not have been able to be scheduled for at least another two years. As it is, the first portion of the trial could not be scheduled to begin until over a year after the initial trial management conference.

[9] The trial was originally set down for 6 weeks but ended up being closer to 10 weeks spread over a number of months. At the first trial management conference, it became clear in canvassing dates with counsel that fashioning a schedule to accommodate the extra time for damages experts to report and testify would have made the task so cumbersome that the trial would have been put off for an excessive amount of time.

[10] Further delay simply would not have been acceptable given the directions by the Court of Appeal and Justice Morawetz. As it is, the case was 19 years old when the trial began, and deals with events that are up to 5 decades old. Four of the 28 Plaintiffs died in the years before the trial commenced and are represented by their estate trustees. In addition, two of the Plaintiffs died during the course of the trial after they had completed their testimony, and two of the Plaintiffs died while the judgment was under reserve. As indicated, Dr. Barker was unable to testify due to age-related health issues. Any further delay would truly have been a case of justice denied.

[11] All three sets of counsel have adapted to the schedule admirably and, in my view, the trial has not been hindered by the inevitable start-and-stop nature of its scheduling. Most importantly, no one was prejudiced by the schedule or by the division of the overall trial schedule into two parts; indeed, I venture to say that the Plaintiffs and both sets of Defendants have all seen the advantage of having the matter proceed sooner rather than later, albeit with non-consecutive weeks and a lengthier gap between the first part of the trial and the second part still to come. I appreciate the fact that all counsel, after some initial difficulty in arriving at a starting date, have been flexible in making themselves available in view of each other’s busy schedules.

[12] There are a number of ways to describe the 3 impugned STU programs, depending on one’s perspective on them. In fact, it is difficult to describe them without importing some value judgment. In its ruling, the Court of Appeal, at para 2, described the Plaintiffs’ participation in the programs in the relatively benign terms favoured by the Defendants: “[t]hey were subjected to intensive therapy programs designed in part by the [Defendant] Dr. Barker for Oak Ridge’s Social Therapy Unit which he and the [Defendant] Dr. Maier oversaw”.

[13] Elsewhere in its ruling, at para 22, the Court of Appeal described the programs in the relatively strong terms favoured by the Plaintiffs: “[t]he Plaintiffs’ claim involves very serious allegations of torture and degradation of human dignity.” This more closely reflects the description contained in the Amended Second Fresh as Amended Statement of Claim which asserts, at para 173, that at Oak Ridge the Defendants subjected the Plaintiffs to “inhumane treatment and psychological and physical abuse and…experimentation.”

[14] The evidentiary record is voluminous – counsel for the Doctors advise that the data bank of documents, separate from the transcripts of the 38 witnesses that testified at trial, comprises some 120,000 pages. The programs at Oak Ridge were well documented, and most of the Plaintiffs’ Clinical Records from the period in question have been located and have found their way into the evidence. Further, the STU programs were written about and publicized by each of the Doctors, and various television crews and documentary filmmakers were given access to the facility over the years and have produced a video record of what they encountered there. Much of that media coverage is in the evidentiary record as well, and some of the documentary videos were played at trial. I described the extensive evidence and productions in a ruling addressing a mid-trial pleading amendment by the Plaintiffs, and concluded: “It is difficult to imagine a more thorough discovery process”: Barker v Barker, 2019 ONSC 3015, at para 5.

[15] The fact-finding process has been a lengthy one, but it is well documented in the evidentiary record. With only a few exceptions, the Clinical Records and other evidence establishes which of the 3 programs each of the Plaintiffs experienced, when the programs were used, which of the Doctors or other medical staff were involved in each Plaintiff’s treatment, and how each individual Plaintiff responded at the time. The clinical evidence also addresses, with help from expert opinions, the specific impact of the programs on each Plaintiff over the long and short terms.

[16] The central question posed by the Plaintiffs’ claim is whether, in subjecting the Plaintiffs to one or more of the 3 STU programs, the Doctors and the Crown breached fiduciary duties owed to them as Oak Ridge patients. To answer this question, it is necessary to explore not only what was done to them in the programs, but why it was done to them. Were the DDT, Capsule, and MAPP professionally acceptable treatment, or were they non-therapeutic and callous experimentation? In other words, how can we characterize the impugned programs that the Plaintiffs were put through in the decade and a half beginning in the mid-1960s: were they medicine or were they abuse?

II. The impugned programs

[17] As indicated, each of the named Plaintiffs testified at trial. Each, as would be expected, has their own story to tell about how they came to Oak Ridge, which, if any, of the 3 programs they experienced there and how they subjectively experienced them. They also each relate what, if any, harm they suffered as a consequence. In fact, it was on the basis that the claim entailed individualized narratives that Cullity J. refused to certify it as a class action.

[18] Justice Cullity viewed the Plaintiffs’ experiences as a matter of their own personal histories, and he perceived the causation question as turning on their individual medical pasts and their lifetime trajectories. Most crucially for the central claim of breach of fiduciary duties, he concluded that as between the doctors who ran the programs at issue and the patients who experienced them, he was “not satisfied that degrees of power imbalance and vulnerability can be determined otherwise than on an individual basis”: Joanisse, at para 49.

[19] Having said all that, the programs themselves can be described as essentially the same for each of the Plaintiffs. They were all patients in the same maximum-security institution, they were each at some point in the STU where the 3 programs in issue were carried out, and they were all or nearly all, patients of either patients Dr. Barker or Dr. Maier or both. Those for whom Drs. Barker and Maier were not involved in their treatment were treated or directly impacted and caused harm by the work of three other Oak Ridge medical staff mentioned in the Plaintiffs’ pleading but not named as Defendants: Dr. Barry Boyd, Dr. Douglas Tate, or Dr. Julia O’Reilly.

[20] The claims here are not based on the theory and design of the impugned STU programs, but rather for their direct, individualized operation by the Defendant on each of the Plaintiffs. However, to best understand the operation of the programs and the impact on each patient, it is helpful to first review the programs at a higher level of generality.

[21] Drs. Barker and Maier published articles describing their psychiatric theories. In addition, Dr. Maier and Dr. Tate testified at trial and described the purpose and operation of the 3 programs first hand. Although Dr. Barker has medical issues that made him unable to testify at trial, his affidavit filed in support of the 2003 certification motion before Cullity J. is in the evidentiary record and also it reviews much of this ground. Finally, a number of experts put forward by both sides testified as to the overall nature, effectiveness, ethics, and rationale for the STU programs.

[22] The STU programs were unique – Dr. Maier himself aggrandized them as the “greatest experiments in psychiatry” while one of the expert witnesses, Dr. Stephen Hucker, diminished them as “a blip in the history of psychiatry”. But, either way, they were not like more familiar, and accepted, psychiatric methods. It is worthwhile understanding them in general before delving into their operation on the Oak Ridge patients.

a) History and theory of the STU

[23] Although Oak Ridge/Waypoint is part of a state-run psychiatric hospital, until the 1960s it played what was essentially a custodial function for inmates/patients who were relegated there for life. The institution focused on reducing violence among its population. As described by Dr. Barker, any treatment that was administered consisted for the most part of sedatives, tranquilizers, electro-shock therapy, and in some cases, psychosurgery. Dr. Barker deposed that prior to 1960, the institution was not designed to treat patients and prepare them for a return to the community; rather, “[t]he goal of such treatment was to render patients more manageable and less violent in the hospital setting.”

[24] In 1960, Dr. Barry Boyd became Administrator, or Superintendent, of Oak Ridge. During his tenure in this position, which lasted until 1974, the focus of the institution was transformed from custody and security to treatment with a view to eventually releasing patients back into society. The STU was run by Dr. Barker when it first got off the ground in the latter half of the 1960s, followed by Dr. Maier who ran it until taking a year-long leave of absence in 1977-78, during which time Dr. Tate was the STU director. Following Dr. Tate’s tenure as head of the STU, Dr. Julia O’Reilly served as STU director from 1978 until its wholesale restructuring in 1983. These 5 individuals – Dr. Barker, Dr. Maier, Dr. Boyd, Dr. Tate, and Dr. O’Reilly – are identified by the Plaintiffs in their pleading as being the agents carrying out the work of the Crown in running the institution and the impugned programs.

[25] Dr. Boyd passed away in 1992. George Kytako, the Crown’s main witness at trial, testified that he has reviewed the extensive notes left by Dr. Boyd. He explained that it was Dr. Boyd’s vision to create a program to give patients who previously had no hope of ever being released from custodial care a chance to improve and eventually be released. Dr. Boyd hired Dr. Barker in 1965 to develop the concept of a therapeutic community within the Oak Ridge division in order to accomplish that goal. For his part, Dr. Barker recalled that he and Dr. Boyd were of the view that a shortage of resources meant that traditional psychotherapy was not possible at Oak Ridge. They concluded that a therapeutic community, where patients themselves share decision-making and take responsibility for their own group and individual state of health, would be a feasible form of patient care. Dr. Barker wrote about this approach in his published writings.

[26] The therapeutic community idea itself had been the brainchild of British psychiatrist, Dr. Maxwell Jones. In the late 1940s and early 1950s, Dr. Jones published a number of articles about a therapeutic community he developed at the Henderson Hospital in London. The premise of his project was for the patient community to become its own therapeutic instrument. Patients in the community would interrelate in decision-making and thereby improve their communication abilities, which in turn would help them take responsibility for their own actions. Dr. Jones’ ideas were also put into use with incarcerated patients in the U.K., including the Grendon Underwood prison hospital in Buckinghamshire and the Broadmoor maximum-security psychiatric hospital in Berkshire. As discussed below, however, the Oak Ridge programs differed in important respects from the Jones programs.

[27] Dr. Barker combined his interest in Dr. Jones’ psychiatric theories with the philosophical literature of, among others, Martin Buber, who believed that violent psychiatric patients had suffered experiences which made them unable to dialogue effectively with others. Dr. Barker then theorized that if, through a therapeutic community, these individuals could learn to communicate effectively, the inappropriate and violent behaviours would dissipate. Dr. Tate testified that under the Barker approach, patients were encouraged to take responsibility for themselves and others primarily by becoming involved in most of the therapeutic activities in the group setting.

[28] The 3 programs at issue in this action were described by Plaintiffs’ expert witness, Dr. John Bradford, as “add-ons” to Dr. Jones’ original idea of a therapeutic community. In his Supplementary Report dated January 8, 2019, Dr. Bradford notes that one researcher who has traced some of Dr. Barker’s personal history has indicated that in 1965, just before his arrival in Oak Ridge, Dr. Barker travelled to Israel to meet with Martin Buber and then proceeded on to China to study character reformation methods employed in prison camps: see Richard Weisman, “Reflections on the Oak Ridge Experiment with Mentally Disordered Offenders: 1965-1968,” 18 Int’l J. Law and Psych. 265 (1995).

[29] Counsel for the Plaintiffs submit that it is this unique combination of Buberian philosophy and Maoist methodology that led to Dr. Barker’s creation of the STU with its DDT, Capsule, and MAPP programs. In fact, in a 1975 interview with BBC television, introduced into evidence by counsel for the Crown, Dr. Boyd specifically referenced this approach to coercive treatment that was reflective of China’s cultural revolution era norms:

Interviewer: Does it take a bit of brainwashing in order to convince them that they do need the treatment, that they must take the treatment?

Boyd: We don’t like the term brainwashing very much to describe what is happening to our patents, because we think it is the Chinese or someone leading good capitalists away from our system when we think of brainwashing. But, it is no doubt true that many of the techniques that they use in brainwashing are effective and that we are using somewhat similar techniques: the group pressures, the use of drugs, the use of sleep deprivation, some cases fasting; these things help to bring about a change in one’s personality structure, which is what we are trying to do with these character disorders.

Interviewer: But that’s not brainwashing?

Boyd: We don’t use the term.

Interviewer: What do you call it?

Boyd: Well we call it our social therapy unit, we call it milieu therapy, therapeutic community. We stress the use of encounter groups, we talk about defense disrupting drugs.

[30] In 1968, Dr. Barker, along with a co-author, Mike Mason, an Oak Ridge patient who was sent to Penetanguishene having been found not criminally responsible for killing his girlfriend, published a seminal article on the theory behind the STU. That article, “Buber Behind Bars”, (1968) 13 Cdn. Psych. Assoc. J. 61, indicates in its opening paragraph that it “will attempt to describe some aspects of an intensive treatment program presently operating in an institution for mentally ill persons…confined by law”, and identifies the program as the Intensive Treatment Unit (later re-named the STU) at the Oak Ridge division of Ontario Hospital Penetanguishene. Dr. Barker outlined the following principles as the guideposts of the programs he designed, at p. 71:

1. Mental illness is fundamentally a breakdown in the communication between persons.

2. For a sick person, the most helpful experiences are acts of genuine communication - direct encounters – as defined by Martin Buber, in which each turns to the other in his present and particular being, and addresses him without pretence.

3. The patient is the principal agent of therapy. He is equipped to help his peers and is better in some ways than the professional whose role is seen as an administratively supportive one creating the space in which direct encounter can occur.

4. Every event in a total encounter institution should enhance the treatment goals.

5. The use of force is legitimate in treating patients for illnesses which they do not recognize, in settings where they will be incarcerated until they change.

[31] Dr. Barker goes on in his article to describe the implementation of his dialogic theory in the context of patient-on-patient therapy, as an invasive and brutal experience. In his graphic terminology:

While a bald report of the activities of a patient committee may suggest the weekend pastimes of Storm Troopers, our explanation would be that a seeming rape is attempted in order to impregnate the patient with ideas that may prevent a further, more subtle, and more menacing rape: the rape that the illness perpetrates upon the patient, and the rape that a sick society perpetrates upon the patient, and the rape that a sick society maintains upon a few of its sicker members.

The “Buber Behind Bars” essay proceeds to describe the then recently-initiated DDT program, at p. 67:

…30 mg. of methadrine and 1/75 gr. of scopolamine are injected twice a day for four days. Sodium amytal, scopolamine, methadrine, imipramine, and dexadrine were all used either singly or in pairs to reduce defenses... The use of LSD-25 began in February 1967. Concomitantly, efforts were made to reduce the use of tranquilizers to an absolutely necessary minimum.

Dr. Barker makes clear the unpleasant nature of the drug experiences, culminating in “support” by the very patient committees whose “weekend pastimes” were already described in the most violent terms, at p. 68:

Schematically, then, the program consisted of confrontation, anxiety-arousal, analysis, and support in committees…

Finally, Dr. Barker makes explicit the coercive and authoritarian quality of the experiences he designed, at p. 65:

Physical force brough the patient to our hospital, physical force maintains him there, and this force will not be lifted until he changes his behaviour in a recognizable way. In our opinion, there is no question that the treatment necessary to produce some remission of the illnesses suffered by most Oak Ridge patients would be impossible on a voluntary basis.

[32] The record establishes, and all sides concur, that from the outset and throughout the relevant time period, the STU had minimal medical staffing. Dr. Barker, and later Drs. Maier and Tate, kept regular business hours on the wards. Dr. Tate testified that the nursing staff had a high patient to staff ratio (3 nurses for 150 patients), and kept one non-medically trained attendant staff on duty during nighttime lockup. Dr. Tate also stated that as a result of their daily interactions with patients, attendant staff came to know individual patients quite well and in his view offered great insight with respect to their behaviour and progress. The 1973 report of the STU, entered into evidence by the Crown, indicates that the attendants were not supervised by professional staff. The attendants were, effectively, security guards.

[33] The STU programs used patients as a replacement for trained therapists, and euphemistically referred to them as teachers. As Dr. Barker indicated in his writings, this was initially prompted by the lack of staff resources, but came to represent a fundamental part of the therapeutic community model of treatment. In “Buber Behind Bars”, Dr. Barker opined that the patient is highly effective because it keeps a patient continuously in the therapeutic milieu rather than giving him a periodic hour of professional therapy.

[34] Dr. Barker and Mr. Mason followed up on this idea in another of their published expositions, “The Insane Criminal as Therapist” (1968) 10 Cdn. J. of Corrections 3, at p. 6. They explained that, “Staff are by decree not expected to become involved with patients in discussion or explanation of their feelings and thoughts. Therapy is equated to open and honest dialogue, and is the business of the patients, not the staff – a distinction which has been found both necessary and advantageous in our setting.”

[35] To deal with the risk of violence that resulted in removing patients from seclusion or other incarceration-like surroundings and taking them off tranquillizers, Dr Barker introduced the system of patient observers. As described in his article, “LSD in a Coercive Milieu Therapy Program (1977), 22 Cdn Psych. Assoc. J. 311, at p. 312, he also introduced the use of cuffs joining one dangerous patient to another to facilitate both in continuing their therapy. Dr. Tate followed up on this idea in cross-examination, where he agreed that “nine times out of ten” the “teachers” would be psychopaths and that the programs for the most part operated “totally unsupervised by professional staff”. He also explained that it was the patients who had the authority to make decisions about placing a patient in restraints or confinement and who controlled the length of time that a co-patient would remain in restraints.

[36] Dr. Barker acknowledged in “The Insane Criminal as Therapist”, at p. 5, that with the patient/teacher and patient committee system implementing the STU programs, “[c]onfrontation and communication take place between patients at a relatively intense level.” As an example, he elaborated in “Buber Behind Bars”, at p. 68, that, “In most settings, it would be considered a heinous crime to tell a suicidal patient that as far as one is concerned, he can go and hang himself… On the [STU]…not caring is a part of reality with which the mentally ill person must learn to come to terms.”

[37] Verbally aggressive communications were often combined with patient-on-patient physical enforcement. As Dr. Barker explained, “Our feeling was that force could most usefully be employed in treatment, particularly the treatment of the asocial and antisocial personality disorders; and that as communication approaches a maximum, the permissible use of force also approaches a maximum.” At least one of the Defendants’ expert witnesses, Dr. Jonathan Freedman, testified that Dr. Barker’s approach could be described as one of incentivizing patients to participate in their own and in the group’s self-improvement. Dr. Barker himself, however, did not exactly characterize it this way. Rather, he described coercion not as a carrot, but literally as a stick – the “goad to freedom”: “Buber Behind Bars”, at p. 64.

[38] Dr. Maier, writing 10 years later and reflecting on the first decade of the STU, described the primary lesson learned by watching patients ‘re-discover’ themselves in this way, as “suffering…as the source of re-creativity”. As he expressed it rather poetically, “In a culture that demands one to flee from his pain, where every headache is to be masked by an aspirin, it is hard for one to see the importance of pain in one’s life. Be that as it may, the road inward lies on the path through…all of our pain”: Gary Maier and T. Hawke, “Penetang: People and Paradox” (1975), p. 8.

[39] The centrality of pain as an instrument of the STU programs was identified in a study commissioned in 1977 by the Ontario Ombudsman’s office. Although the STU was described overall as “an exciting program which has the hallmark of being right”, the study acknowledged that parts of it represented a “remorseless re-educative experience…capable of abuse”: Butler, Long & Rower, “Evaluative Study of the Social Therapy Unit” (Ontario Ombudsman, 1977), pp. 17, 28.

b) Defense Disruptive Therapy

[40] Patients in the DDT program were given high doses of hallucinogens and what Drs. Barker and Maier referred to as “demystifying drugs”: “Buber Behind Bars”, p. 67; “Penetang: People and Paradox”, p. 4. From the 1960s, this type of drug therapy was a cornerstone of Dr. Barker’s programs, involving the administering to patients at Oak Ridge mind-altering drugs which he speculated “might free them from the tyranny of their illnesses – and consequently from incarceration – in a shorter time”: E.T. Barker, M.H. Mason, J. Wilson, “Defence Disruptive Therapy”, (1969) 4 Cdn. Psych. Assoc. J. 355.

[41] Although many (or most) of the DDT patients had a propensity to violently act out, the drug sessions were not necessarily done in the presence of professional staff. Rather, the patients, while drugged, were “observed closely and conscientiously by their fellow patients, and if necessary are secured during the daytime by a locked canvas wrist strap attached to the wrist of unmedicated patients”: Ibid., p. 356.

[42] It was Dr. Barker’s early theory that the use of mind-altering drugs, either alone or in combination with stimulants, could reduce a patient’s inhibitions or defences, and that “being handcuffed to another for long periods forces an inescapable interaction: “Buber Behind Bars”, p. 67. According to Dr. Barker, this method of chemically reducing patients’ mental defences while ensuring that “each member of the community is in a very real sense his ‘brother’s keeper’”, had the additional and necessary advantage of “mak[ing] DDT economically feasible”: “Defence Disruptive Therapy”, p. 356.

[43] As will be discussed later in these reasons, virtually all of the Plaintiffs who were part of the DDT program testified that they were told that the drug experiences would break down their defences, but none of them were told of the therapeutic benefit of the drugs. Equally, neither Dr. Maier in his testimony nor Drs. Barker and Maier in their respective writings described in any detailed or systematic way a ‘rebuilding’ process that might follow the disruptive effects of the drugs. It appears that the Doctors had given substantial thought to breaking down their patients’ personalities, but neither of them had turned their minds in a serious way to reconstructing them.

[44] In addition to LSD, which is sufficiently unique that it will be discussed separately below, the drugs most used in the DDT program were dexamyl, dexedrine, methedrine, dextro-amphetamine, amytal, alcohol, tofranil, and scopolamine: Ibid., 356-7. Many of the Plaintiffs testified at trial as to the subjective effects of these drug sessions. However, the published clinical observations by the Doctors best describe the effects in an objective way. Dr. Barker was particularly descriptive in his approach to the DDT program, and described the effect of the drug treatments in his article “Defence Disruptive Therapy”, p. 357:

We find that the pulse rate usually rises by the fourth day to a rate of l40-160 when the patient is standing, and it is suspected that this and the occasional hyperventilating and vomiting that occur are mostly due to the extreme anxiety evoked. There is always a reduction in the patient’s appetite and he eats little during the period of administration. Sleeping is curtailed or eliminated completely…

The patient experiences…delirious episodes which are accompanied by hallucinations and floridly ‘psychotic’ behaviour. Contact with ‘reality’ is highly irregular and recall of events is patchy, the main presenting feature being a general lack of pattern to the sequence of experience and behaviour. Considerable paranoia is exhibited by most patients… However, what seem to be the most useful effects occur during the weeks after drug administration. which appears to be a defence-readjustment period. It has been found that patients experience more anxiety for periods of up to two months following the termination of treatment. They seem less well defended, more sensitive, restless and troubled… Our experience suggests that subsequent courses of DDT increase the degree and duration of the anxiety experienced. We think also that the more prolonged and complete the period of delirium, the more are these delayed effects displayed.

[45] Plaintiffs’ expert, Dr. John Bradford, described the effects of the DDT treatment in much the same way, although with a negative rather than a positive perspective on these effects. Echoing the testimony by a number of the Plaintiffs, Dr. Bradford indicated in his Supplementary Report that the DDT drugs could produce “severe psychotic episodes with visual and auditory hallucinations being prominent”. He elaborated that the use of amphetamines such as dexamyl, dexedrine and methedrine, could produce “paranoid psychosis”, especially in patients diagnosed with schizophrenia. In doing so, he confirmed Dr. Barker’s observation that the longer a person is exposed to the DDT experiences, the more protracted are the effects:

A paranoid psychosis in psychiatric terms is the psychosis that is most likely to lead to physical violence on the spectrum from assault to homicide. This could be the impact in individuals not suffering from a severe mental illness such as Schizophrenia.

In persons suffering from Schizophrenia, all the negative effects are magnified, aggravating the existing condition and leading to severe psychotic episodes of the illness Schizophrenia. Further, in general terms, the longer a person with Schizophrenia remains psychotic, the harder it is to bring the illness into remission and to recovery. In addition, every episode of a psychosis in a person suffering from Schizophrenia also affects the recovery and the length of time prior to going into remission or responding to treatment.

[46] In December 1985, one of the Defendants’ current expert witnesses, Dr. Hucker, led a committee of specialists that investigated and published a report on Oak Ridge entitled “Oak Ridge: A Review and an Alternative” (the “1985 Hucker Report”). The 1985 Hucker Report constitutes what was then a recent post-mortem analysis the STU. One of the Hucker committee members, a well-known English psychiatrist, Professor John Gunn, wrote a paper in 2006 based on a lecture he delivered at the Royal College of Psychiatrists’ 2005 Annual Meeting. His paper “Abuse of Psychiatry”, (2006) 16 Crim. Behaviour & Mental Health 77, which is part of the evidentiary record, refers rather graphically to a visit he made to Oak Ridge some 35 years previously. Writing in praise of the U.K. and E.U. regulatory bodies that carefully govern and put limits on psychiatric treatments, Dr. Gunn relates a first-hand DDT session he observed in the STU:

North America does not have these advantages. In about 1970, I visited the Oakridge forensic psychiatry unit at Penetanguishene mental hospital in Ontario. At that time they could get few trained staff, but had quite a large number of behaviourally disordered young men (they called them psychopaths) to look after. The part-time psychiatrist in charge decided that he had to use the patients as therapists and had to devise imaginative forms of psychotherapy. His original ideas included handcuffing men together in pairs for long periods, so that they would learn to think of somebody else beside themselves. Another treatment was ‘the capsule’, a room without furniture, but well heated, in which patients would stay for days, in a group, without clothes or other possessions. They were monitored by closed-circuit television and fed through a hatch. This was an experiment in social education. I met one young man rolling on the floor in delirium and was told he was undergoing regression treatment. This meant he had had an injection of scopolamine sufficient to produce delirium and incontinence. He was then expected to recover from these toxic effects whilst in the company of his fellow inmates who would ‘look after his bodily needs’. This was ‘to correct his adverse childhood by allowing him to be reborn into a caring group’ (I am not making this up). I inquired about his diagnosis. I was told he was a ‘psychopath’ I asked the nature of his offence. I was told that he had repeatedly stolen money from his mother!

[47] Of course, this description, although contained in the record as part of the professional literature about the impugned programs, is, strictly speaking, hearsay, and so does not count as specific evidence of a DDT session. The Plaintiffs’ descriptions will fill this role. Having said that, the Defendants’ own expert witness, Dr. Hucker, testified that Dr. Gunn is a reliable observer and that he agrees with Dr. Gunn’s assessment of the programs. As Dr. Hucker stated under cross-examination by Plaintiffs’ counsel:

Dr. Gunn and I were ad idem on how horrified we were at the operation of the program” as described to them in the 1970s. “We all agreed that this is a program that if it had been started when we were reviewing Oak Ridge [1984-85] it would have been closed down. We agreed that this was a ‘blip’ in the history of psychiatry.

c) LSD

[48] The use of LSD at Oak Ridge was started by Dr. Barker in 1967. Technically, it was part of the DDT program. Dr. Barker wrote that “LSD is as safe to use as other defense disrupting drugs such as amobarbitol (Amytal sodium) or methamphedamine hydrochloride (Methadrine), and patients report undergoing a more intense and beneficial experience after receiving LSD”: E.T. Barker, “Treating psychotics with LSD: good results are reported”, Modern Medicine (March 30, 1978), p. 167. But the drug was so unique, and the sessions occupied such a special place in the life of the STU, that it is logical to discuss it separately as if it were a program in its own right.

[49] In January of 1967, Dr. Barker submitted to Dr. Boyd a proposal for a controlled study of LSD, in which he referred to himself as the “qualified investigator”. He proposed including Dr. Boyd as part of the Local Advisory Committee “to supervise the experimental project”. Overall, the aim of the proposal was set out by Dr. Barker as an “attempt to evaluate the clinical usefulness of LSD in our intensive treatment war”. In much the same language, Dr. Maier, in a November 13, 1975 memo to Dr. Boyd, indicated that he had advised the federal official responsible for licensing LSD access that he planned to “present the findings of our research at the next appropriate scientific meeting either the Ontario Psychiatric Association or better the Canadian Psychiatric Association.”

[50] The LSD part of the drug program in the STU for the most part took place in the Capsule, with each patient receiving the drug doing so with a ‘dyad’, or dialogue partner. Dr. Barker deposed that after the LSD session was over, the patient who took LSD would discuss his experience with his dyad partner. Dr. Maier later created “family groups” in which four patients at a time would prepare for an LSD experience. Each week, one of the preparing patients would receive the LSD with their dyad partner.

[51] The group of patients receiving the LSD would then have a group discussion about their experiences on the drug. Dr. Maier himself was more personally involved in the actual LSD sessions than in other aspects of the three STU programs, and generally administered the drug intravenously to the patients. Plaintiffs testified that he would often be present for portions of their LSD ‘trip’, and often would be physically present with them when they would “go deep” under the drug’s influence.

[52] Dr. Bradford deposed that LSD “induces profound alterations of consciousness, which have been described as mystical experiences”. In his own testimony and writings, Dr. Maier concurred with the assessment that this was a mystical type of drug. Dr. Boyd also recognized the association of LSD with eastern theology and mysticism. Interestingly, in a memo dated August 11, 1975, Dr. Boyd tried to warn Dr. Maier that his emphasis of the “mystical” aspects of the DDT program was contrary to current trends in public attitudes, and should be reduced for “political” reasons:

The introduction of mystical concepts usually associated with oriental religions may well have just as much validity as some treatment modalities in current use in our society. They are difficult to assess scientifically and likely to be misunderstood and not accepted ‘politically’. I would ask you to gently de-escalate these aspects of your program unless you can muster more support from the Professional Advisory Committee…

[53] It is evident from Dr. Maier’s testimony and his writings that he was a genuine believer in the mind-altering qualities of LSD and the philosophical insights potentially to be gained through the psychedelic experience offered by this drug. In a memo dated July 24, 1975 to the Oak Ridge Professional Advisory Committee, Dr. Maier sought to explain the goals of the LSD portion of the DDT program by appending for the Committee the reading list given to patients in preparation for their LSD sessions. The list contains no medical literature, but was replete with eastern religious texts (Tibetan Book of the Dead, Tao Te Ching, The Bhagavad Gita) as well as the writings of 1960s-70s counterculture authors (Aldous Huxley, Carlos Castaneda, Timothy Leary).

[54] Dr. Maier’s memo also contains an insightful, if brief and cryptic interchange between himself and his colleagues on the Professional Advisory Committee. He advises the Committee members that, in his view, “[t]he phenomenology of LSD is very exciting. Understanding these images requires an understanding of the physiology of our senses and even more than that it requires direct experience of these levels of reality within us.” He assures the Committee members that the topics and the readings referenced in his memo are also “being read and discussed on F Ward [i.e. in the STU] and are the core of the theoretical/experiential discussion. He then asks his the Committee if it could advise him “in regard to the following practical/theoretical areas”, presumably the same areas with which he and the STU patients have been grappling:

(l) The comparison between the Tonal and Nagual states of reality as described by Castaneda in his four books, and their relationship to the existential world described by Sartre in his book Being and Nothingness. If there is a comparison what are the limits of this? How do these states of reality relate to the Zen term ‘no mindedness’?

(2) If for simplicity sake an ecological view of reality implies cultural, personal and intrapersonal levels, how would the terms archetype, mandala, and symbol relate to uniting this reality view?

[55] To say that the query from Dr. Maier would likely have been viewed as obscure is to understate the point quite a bit. The first question on its face attempts to relate Native American notions of consciousness to European philosophical musings over the nature of existence to east Asian concepts of mental focus. In doing so, it could reflect a depth of study that would be beyond the average non-philosophically trained medical professional, to say nothing of the average Oak Ridge patient. Alternatively, it could reflect Dr. Maier’s own pop culture fascination with superficially exotic traditions of thought, which he had never studied in any formal or organized philosophical or theological setting.

[56] As a third alternative, the surprising tone of Dr. Maier’s ruminations, as expressed to his institution’s Professional Advisory Committee, could reflect Dr. Maier’s personal commitment to chemically altered states of mind. In fact, in a reflective, confessional article dated August 30, 1973 and published in The Seventh Circle, an Oak Ridge newsletter aimed at the patient population, Dr. Maier waxed eloquent about his own recent psychedelic experience:

I was in a sensitivity group of professionals for one year and learned that I like to power trip as a doctor, that I could play god with patients but please Gary not with peers…

I took 250 mic’s of LSD, supervised in London Victoria Hospital. I experienced the infinite, the mystical and saw the religious questions in my life come to balance…

I learned to hypnotize people in Philadelphia. The different states of consciousness began to come alive for me…

The Native People [in northern Canada] and the community at Esalen in California helped me to accept people without judgment. Suddenly the wholeness of persons blossomed for me. So too the place of our dream life.

[57] According to Dr. Bradford in his Reply Report dated April 28, 2019, Dr. Barker, like Dr. Maier, “did not attempt to ground his ideas in science.” More pointedly, in cross-examination, Dr. Hucker characterized the LSD aspect of the STU programs as “bad science”. Dr. Maier himself admitted in cross-examination that, at the time that LSD was used in the STU, the “popular view in the medical community was that it was destructive” as it induced psychosis. He also conceded that LSD could have adverse effects, including “severe” hallucinations. At the same time, he insisted in his July 1975 memo to the Professional Advisory Committee that his approach to psychedelics was grounded in “science”, although it was not entirely the kind of science in which the Committee members were trained:

Our contention would be that Eastern and Western science are engaged but the relationship has not been consummated. We would like to preside at the wedding.

[58] An insightful evaluation of Dr. Maier’s perspective is provided by one of the Defendants’ witnesses, Dr. Vernon Quincey, a former Director of Research at Oak Ridge. In his Report, which is part of the evidentiary record, Dr. Quincey, stated that Drs. Barker and Maier were, in effect, children of the ‘60s, more ‘turned on, tuned in, and dropped out’, to use the then-current phrase, than present-day professionalism would countenance:

Within the STU, and more informally, the perception of risk-benefit ratios was likely influenced by the zeitgeist of the nineteen sixties, a zeitgeist markedly different than that of the present day. The counterculture was influential among younger professional staff and strongly favored the use of mind-altering drugs, such as LSD. LSD trips were widely viewed as facilitating self-discovery. Many patients and some professional staff had, of course, used LSD and other mind-altering substances outside the context of Oak Ridge. The provision of mindaltering substances appeared to be an important selling point of the therapeutic program to the patients (not so much to the attendant staff) and it was clear based on patient requests recorded in Oak Ridge records that mind-altering drug experiences were widely popular among the STU patients.

[59] The use of LSD at Oak Ridge culminated in a mass ‘trip’ organized by Dr. Maier in which more than two dozen patients were given the drug at once. This led to an eventual rebellion of the attendant staff, for whom security had become intolerably difficult with so many drugged patients populating the institution. As described on the “Remembering Oak Ridge” history website maintained by Waypoint, the incident took place in 1975 and was a turning point for the use of LSD on the STU:

The breaking point [of the STU] came in 1975 when Maier orchestrated a mass psychedelic trip on one of the wards. A group of 26 men were each injected with 300 Mcg of LSD-25. Maier’s expressed intention was to encourage a collectively shared experience of self-knowing among a group of diagnosed psychopaths and schizophrenics; instead, it heralded the demise of the decade-old program. Shortly after Maier’s group experiment, he received a memo from Superintendent Boyd:

Concern has been expressed by other Unit Directors and the Treatment Department Heads as to the direction of recent developments in treatment… The use of LSD as an experimental and research tool appears to be undergoing some change from the approach originally approved…

d) Total Encounter Capsule

[60] In 1977, Dr. Barker wrote that, “For the last nine years, on a regular basis, groups of naked mental patients have been locked in a small room for periods ranging up to eleven days”: Elliott Barker and Alan McLaughlin, “The Total Encounter Capsule”, (1977) 22 Cdn. Psych. Assoc. J. 355. The Capsule was a soundproof, windowless, and constantly lit 8’ x 10’ room, with no furniture and an exposed toilet, where groups of patients had their interactions monitored through closed-circuit television and a one-way mirror by patient observers outside. As Dr. Barker described it in yet another publication, those interactions are bound to be intense: “…from admission to release from the capsule these patients see or hear no one besides themselves and are never further from one another than a few feet”: Elliot T. Barker & M.H. Mason, “The Hundred-Day Hate-In: A stubborn attempt at staff-less milieu therapy” (Meeting of the Ontario Psychiatric Association, 5 October 1968), p. 13.

[61] There was no solid food provided to the patients during their Capsule sessions; rather, they were made to ingest food and water from straws protruding through holes in the wall. Patients in the Capsule were subjected to sleep deprivation, were frequently restrained or strapped to each other, and were most often injected with DDT drugs to lower their inhibitions. They were often paired so that patients diagnosed with schizophrenia experiencing a chaotic range of emotions where placed together with patients with antisocial personality disorders – “psychopaths” in Dr. Barker’s terminology – experiencing no emotions at all. In this state of forced polarity, they confronted each other, forming what Dr. Barker described in Buberian terms as “genuine dialogue”: Ibid., p. 355, or as “a friendship bristling with threats”: “Buber Behind Bars”, p. 69.

[62] It is fair to say that the Capsule was entirely unique to the STU at Oak Ridge. Dr. Bradford, testifying on behalf of the Plaintiffs, made this point emphatically: “It didn’t exist before, it doesn’t exist afterwards, it didn’t exist in the Henderson Hospital, or anywhere else that there was any kind of therapeutic community type setting.” Perhaps even more importantly, Dr. Thomas Guthiel, a professor of psychiatry at Harvard University and a Distinguished Life Fellow of the American Psychiatric Association, who testified as an expert for the Defendants, concurred with this view. In cross-examination, Dr. Guthiel readily agreed that in all of his experience, he has never come across anything quite like the Oak Ridge Capsule:

Q. Okay. Now, the capsule, you understood the capsule was a constantly lit, windowless room, ten-by-ten?

A. Yes.

Q. With a toilet in the corner?

A. Right.

Q. Men are stripped naked, sometimes drugged, LSD, other drugs, Scopolamine, in they go?

A. Yes.

Q. And they’re locked in there and they can’t leave for a week, ten days, two weeks?

A. Yes.

Q. And they eat through feeding tubes?

A. Right.

Q. And I think you have been very clear, you’ve never heard of that being used in a maximum, medium, or any secure mental health facility, before, since, ever?

A. That’s correct.

[63] One of the more noteworthy aspects of the Capsule program was the insistence by Dr. Barker and, later, by Dr. Maier, that it would be beneficial for the patients to enter the Capsule entirely nude. Even Dr. Barker conceded that without good explanation, this practice would strike most people as “perverse”: “The Total Encounter Capsule”, p. 355.

[64] In defense of this practice, Dr. Barker explained that this approach was done partly out of cultural theory prevalent at the time and partly out of safety concerns. He wrote, “[t]his move was prompted partly by the experience of Paul Bindrim, a psychologist working in California, who felt that the uncovering of the private parts of one’s body might facilitate the uncovering of the private parts of one’s mind, and partly because of our fear that clothing might be used in a dangerous manner”: Ibid., pp. 356-7.

[65] Dr. Maier confirmed the contemporary counter-culture inspiration for the collective nudity that was part of the Capsule experience. He testified that he had himself visited the Esalen Institute in Big Sur, California prior to coming to Oak Ridge. He explained that, in the then culture of Height Ashbury, he had experienced nude “encounter groups” aimed at mind expanding and maintaining an open consciousness.

[66] Dr. Freedman concurred in his testimony that nude therapy was used in California in some instances in the 1960s, although he conceded that it had been used only by adults who voluntarily participated and not in a secured mental health facility by inmates who had perpetrated acts of extreme violence. As several Plaintiffs testified, the close proximity and nudity exacerbated the fact that some of the patients were older sex offenders and others were minors, some were aggressive and dominant personality types while others were submissive and especially vulnerable personality types.

[67] With these factors in mind, Dr. Bradford was of the view that this innovation was self-evidently inappropriate. As he put it, “it was something that was the brainchild, I believe, of Dr. Barker, and being naked, I mean, if any of us, as people who weren’t vulnerable, were locked up for up to 14 days, with naked people, no privacy, but on top of that given drugs such that we’re delirious, I think it speaks for itself…”

[68] That said, Dr. Barker reported in a medical journal that “[t]en percent felt the [Capsule] experience was of no particular value and 90 percent felt it was helpful and useful”: “The Total Encounter Capsule”, p. 357. In giving evidence, Dr. Freedman described the practice of nudity in the Capsule as an innocuous feature, “like a locker room”.

[69] By contrast to this, Dr. Turrall, another of the Defendants’ expert witnesses, agreed in his testimony that forced nudity would be degrading for anyone. He then commented, however, that this was precisely the point – i.e. it was done for the purpose of allowing mental defenses to become weaker. In other words, degradation of the patient, or an undermining of their personal dignity and sense of self-worth, was not a side effect of the STU programs; it was part of the design.

e) The Motivation, Attitude, and Participation program

[70] The Plaintiffs were unanimous in their testimony that the most harsh and difficult of all of the three impugned programs was the MAPP. Dr. Barker described it in his 2003 affidavit as educational rather than punitive – its purpose was said to be for “re-orienting a group of disruptive patients when they were unwilling or unable to comply with their community rules.” In cross-examination at the time, he explained that in order to do this, the disruptive patient was put in the hands of other patients who had experienced disciplinary problems themselves:

Q. And what was the purpose of the MAP program?

A. …The thinking behind the MAP program was to have a group for those kinds of disruptive patients and to select a patient teacher for the group who had probably been a disrupter himself at some point and knew all of the shenanigans…

Q. I take it one of the overriding objectives of MAPP was to motivate the individual to participate in the programs willingly?

A. Well, so it wouldn’t be disruptive for the programs. It would motivate them to want to get better.

[71] A close look at the actual content of the MAPP reveals that the line between conveying a lesson and punishing a non-cooperative patient was so thin as to be invisible. As described by most of the Plaintiffs, and not contested by the Defendants, MAPP began with several days of solitary confinement in an unfurnished cell, where patients sat or slept on a raised cement platform – commonly dubbed a “Barker-bunk” by patients and staff. They had no clothing and could only wear a heavy sack gown – again, commonly dubbed a “baby doll”. They were deprived of any outside contact for 3 or 4 days, after which they would be placed in a group setting in which they could earn “privileges” such as wearing clothing or being given a cushion to sit or lie on.

[72] The Ombudsman’s 1977 “Evaluative Study”, at pp. 15-16, described the central features of the MAPP. The Report indicated that the strict discipline and the 14-day cycle could become an endless circuit for a patient who did not follow instructions to the letter, or at least to the satisfaction of his fellow inmates:

During the group, he sits on the terrazzo floor with his feet straight out in front of him in the attention position, his fingers are intertwined and he is given a square area of about three square feet in front of him within which he may look. He must respond positively, ‘feedback’ positively, and participate in the prescribed M.A.P. way. He may use nothing but good English. He may move only four times during a session of about four hours, and then only after being given permission to do so by the ‘teacher’…

In order to leave M.A.P., a patient has to have fourteen consecutive perfect days. A perfect day involves: no slips of the tongue, no unauthorized moving, no keeping others waiting, no lack of participation, no disruption, and beyond that, a satisfactory demonstration of motivation, attitude and participation. This means perfect posture, deportment and language. Behaviour, feeling and thinking are all studied by the group and are continually under discussion and observation…

[73] Numerous patients described the requirement to sit motionless for hours on a cold floor to be the most painful part of MAPP. In cross-examination on his 2003 affidavit, Dr. Barker conceded that the MAPP would have been “very unpleasant”. Dr. Bradford, testifying at trial, refused to sugar-coat the program, referred to the specific policy of protracted immobility as “positional torture”.

[74] For his part, Dr. Maier in cross-examination denied that there was any discomfort in all of this. He did concede, however, that patients were only permitted to move when they got another patient’s specific permission. In doing so, he can be heard to accentuate the apparently gratuitous nature of the ‘lessons’ being taught. As Dr. Maier explained:

I never heard anybody that felt that they couldn’t, uh, eventually get the attention of the teacher so they could make a change in their body posture as though they were sitting there frozen for hours.

[75] It should be noted that several of the Plaintiffs spent time in what Dr. Maier described in his testimony as a precursor to MAPP – the motivation program or MotoPro. Dr. Maier had the chronology wrong in stating that MotoPro existed only prior to the development of the full MAPP, as the evidence is that it also functioned subsequent to Dr. Maier’s departure from Oak Ridge. However, he was correct that the concept of MotoPro was that it would be a somewhat diluted form of MAPP, but with the same punitive, or “motivational” goals in mind.

[76] The evidence establishes that the MotoPro program was really just a version of MAPP, but with an abbreviated name and slightly modified rules – e.g. to be released from the program one had to be on “perfect” behaviour and maintain the requisite physical immobility for 10 consecutive days in MotoPro rather than 14 consecutive days as in MAPP. It is as if some of the participants in the DDT program got slightly lesser dosages of the same drugs, but with similar design and effects, as those in the full dosage DDT program.

[77] Plaintiff Steven Carson described MotoPro as being a mini-MAPP – sitting immobile on a bare terrazzo floor and obeying all rules – but with slightly modified time limits built into the disciplinary rules:

Q. Sir, did you eventually move to a different program that was similar to MAPP?

A. …You have to earn ten good days, and, ah – ah, they didn’t put me in cuffs when I was in MotoPro, they just put me in a safe gown and, ah, – and I had to sit on the floor, and I – like three good days – excuse me, three good days and you earn your, umm, ah – your cushion. And six good days, and you earn your clothes. And then ten days, you’re out of the program and back to therapy again.

[78] Plaintiff Douglas McCaul described MotoPro in similar terms in his affidavit:

While I did manage to avoid MAPP on H Ward, I was subjected to an almost identical program called ‘motto pro’, or ‘re-motivation program’, or ‘mini-MAPP’, on G Ward. I was required to sit on the floor with my arms and legs straight out in front of me for hours on end without moving in several sessions per day. If I wanted to move, I was required to wait for permission from the patient designated to monitor the group called a ‘teacher’.

[79] Dr. Hucker, testifying on behalf of the Defendants, described MotoPro as the same stress-inducing experience as MAPP. In being cross-examined about the record of Plaintiff Steven Carson’s experience in MotoPro, Dr. Hucker confirmed that the effect of the mini-MAPP was essentially the same as that of the full MAPP experience.

Q. For refusing program? State – he stated he couldn’t handle it. And that’s a note by someone Fox, dated April 3, 1979?

A. Yes.

Q. And what he couldn’t handle, was the stress of being in MAPP, correct?

A. That’s how I’d interpret it, yes.

Q. And then after his transfer to moto-pro or the re-motivation program in F-ward, a clinical note recorded Mr. – ‘Mr. Carson was screaming that he could not handle the re-motivation program and he wanted to go back to E-ward.’ It states, May 9, 1979, ‘F-ward staff report this patient was screaming that he wanted to go back to E-ward because he could not handle the pressure of F-ward.’

Again, in a schizophrenic such as Mr. Carson, this would have been extremely stressful anxiety producing, correct?

A. Well, I think it would have been for anybody...

[80] Defendants’ expert, Dr. Gutheil, opined in cross-examination that MAPP was a “harsh sanctioning process” that was designed to, and in fact would, create symptoms of psychological distress. The STU’s 1973 annual review characterized MAPP as a program of “severe deprivation”. This echoed the 1978 Ombudsman’s “Evaluative Study”, p. 16, which described MAPP as a “remorseless re-educative experience which carries a heavy psychological burden.” The Ombudsman’s report specifically referred to MAPP as “mental torment”: Ibid.

[81] Others testified that it was the punishment at the whim of other patients that was the most burdensome aspect of the program. As indicated in the Ombudsman’s Report, MAPP was a difficult program to leave. Fourteen days of perfection (or 10 days for mini-MAPP) under its exacting standards, at the whim of other mentally ill patients, was no doubt a difficult test to pass. The Ombudsman’s Report also observed that as difficult as it was to get out of MAPP, it was easy to be placed in it. This was apparently equally discretionary and at the whim of other patients. The Ombudsman’s “Evaluative Study”, p. 15, states:

Admission is on the basis of behaviour that demonstrates a severe relapse to the members of the Social Therapy Unit. Generally speaking, this is acting out, such as making threatening remarks or striking somebody; or acting in, which is displaying suicidal behaviour. It can be prescribed for undermining (undesirable destructive words or actions). Should a man not mix or talk or generally interact for more than what is thought to be a desirable period of time, he will go to M.A.P., where he will have to interact. There was considerable discrepancy as to whether ordinary criticism or exasperation expressed in the course of group work, or ward committees, would qualify one for this treatment.

[82] And then summing up the point, the Ombudsman’s “Evaluative Study”, p. 17, concludes:

Referral to [MAPP] is so flexible as to be capable of abuse and release from it is difficult. Any patient at any stage in his career at Oak Ridge can be sent to it.

III. Informed consent

[83] The issue of informed consent is a contentious one among the parties. Interestingly, it plays out in different ways. Counsel for the Plaintiffs have spent considerable effort establishing that as a matter of medical ethics consent was necessary and was a known feature of medical and psychiatric care from the earliest days of the impugned programs to the end of the STU era. In this regard, I note that in 1980 the Supreme Court of Canada in Reibl v Hughes, 1980 CanLII 23 (SCC), [1980] 2 SCR 880, indicated that in order to provide the patient with the requisite informed consent in medical treatment, a doctor must ensure the patient’s understanding and in doing so must take into account his or her particular mental and emotional circumstances. I also note that the Court’s approach, at 886-7, was based on principles that had in 1980 already been good law several decades:

It [a physician’s duty] is a particular case of the duty which is cast on professional persons in a fiduciary position called upon specifically or by implication to give information or advice to a client intending and entitled to rely on his statements to determine his course: Nocton v. Lord Ashburton, [1914] A.C. 932; Kenny v. Lockwood [1937] O.R. 142…

The scope of this professional duty of care is defined by the evaluation of a variety of inter-related factors which bear uniquely on each case, factors such as the presence of an emergency requiring immediate treatment; the patient’s emotional and intellectual make-up, and his ability to appreciate and cope with the relevant facts; the gravity of the known risks, both in terms of their likelihood and the severity of this realization.

[84] Counsel for the Doctors invest effort in countering that position, explaining that while consent was not strictly required in that era, the essence of the STU was milieu or group therapy and, as such, the patients were in continuous discussion and were thus conversant with the programs in which they participated. Crown counsel, on the other hand, invests considerable portions of their argument to an attempt to demonstrate that formal consent was, in fact, obtained from all patients, including those in the STU programs.

[85] Counsel for the Crown point out that, as a starting point, consent was not required for the Plaintiffs’ placement in Oak Ridge. The purpose of involuntary committal to a maximum-security psychiatric hospital was to provide patients with treatment, for the most part as an alternative to incarceration in prison. In support of this, Dr. Tate deposed in his affidavit, “If patients were allowed the final say as to which psychiatric facility held them, or which ward they were lodged in, this would lead to the absurdity of manipulative psychopaths controlling the terms of their own detention and would defeat the purpose of their detention at Oak Ridge.”

[86] The DDT and Capsule programs took place in Oak Ridge’s G Ward (after an initial assessment on F Ward), while the MAPP was housed separately on H Ward. G Ward was organized by what the Crown describes as a highly structured committee system that “was itself a pro-social therapeutic modality.” Within this organizational structure, patients were meant to adapt their behaviour to the STU community’s standards, which, in turn, entailed referring specific instances of problematic behaviour to the committee system. Dr. Tate explained that this allowed the patients themselves to investigate, deliberate, and recommend a course of action.

[87] The committee system was summarized by the Ombudsman’s “Evaluative Study”, at paras 37-41, commencing with a description of the Clarification Committee – the patient committee responsible for investigating any incident of anti-social conduct (in the milieu therapy sense of the term). As described in this Study, the Clarification Committee’s written report would go to the Treatment Committee or the Sanction Committee, which, with the misbehaving patient’s participation in the deliberations, would then recommend a course of action.

[88] As the Ombudsman’s Study described it, if the Treatment Committee, which like all of the committees was composed of other patients, concluded that the behaviour in question was a symptom of the patient’s mental illness, it could recommend a treatment – up to and including specific drugs for a DDT session. And if the Sanction Committee concluded that the behaviour was willful, it could recommend a sanction – up to and including a session in MAPP. The committees’ recommendations were to the Staff-Patient Liaison Committee for final approval of the recommended action. It was only at this last stage that non-patients gave some input into the treatment recommended for the patient.

[89] In fact, the notion of patients’ “collective responsibility”, as the Crown calls the committee system, went beyond responses to misbehaviour. Thus, the Treatment Committee oversaw the progress of all G Ward patients, and was responsible for recommending specific medical treatments. This included recommendations ranging from special group therapy sessions for patients with interpersonal conflicts, specific dyad pairings, various drug treatments, or changes in medication for fellow patients. The Treatment Committee was also relied on to identify and assess patient risk, and to recommend interventions such as cuffs or other restraints. It also prescribed deprivation of items in the cell that were thought unsafe, or imposed continuous peer observation of the patient. The Treatment Committee was also responsible for approving which ‘patient-teachers’ would observe a patient during DDT sessions.

[90] Dr. Tate in his evidence makes the point that the active participation of patients was essential to the operation of the STU program. That is, the milieu therapy theory and committee structure that went with it required patients to engage socially with their peers, and to confront their problems with open dialogue. The Ombudsman’s “Evaluative Study”, at pp. 24-25, described patients as having developed an understanding of the STU programs as they progressed through them. According to the Ombudsman, this included them learning about shared responsibility through committee work, and even extended to understanding which DDT drugs they might need for themselves and for others.

[91] Counsel for the Crown contends that even with patient group recommendations and the final approval of professional staff, none of the 3 programs at issue were imposed on a patient without their participation and consent. It is certainly the case that before entering into any of these programs, patients in the STU had the opportunity to observe others in their groups undergoing the same things. Before and after patients underwent DDT, the Capsule, or MAPP, the experience was discussed and planned by the Treatment Committee, and the Staff-Patient Liaison Committee (on G Ward), or at Ward meetings (on F Ward). Further, Dr. Maier deposed in his affidavit that before receiving DDT treatments, patients were often, although not always, made to draft self-reflective letters for review by the patient group and/or professional staff.

[92] The Ombudsman’s “Evaluative Study”, p. 3, indicated that patients gave consent in writing for DDT and LSD treatments and for Capsule sessions. A number of these consent forms were tendered as exhibits by the Defendants. In cross-examining each Plaintiff and in their final submissions, counsel for the Crown reviewed in very detailed fashion not only the formal consent forms, but each instruction sheet that the Plaintiffs were given and made to study at the outset of their participation in the various STU programs.

[93] The “Evaluative Study”, p. 36, states that as a result of their active participation in the group therapy and committee system, these patients could be said to have been better informed than most general hospital patients. Dr. Maier was particularly keen to point out in testimony that the patients were exceptionally well-informed about the LSD experience. He testified that not only did they each sign a consent form indicating their voluntary participation in the LSD sessions, but that at any point in the pre-LSD preparation process a patient could drop out of the program without penalty.

[94] The view of fully informed consent put forward by the Crown and the Doctors was expressly addressed, and countered, by the 1985 Hucker Report. Appendix C to that Report is a study entitled “Legal Aspects of Living Conditions at Oak Ridge”. The study provides a description of the consent obtained or overlooked at Oak Ridge. The “Legal Aspects” study, at p. 153, makes the point that consent at Oak Ridge was inadequately obtained:

[T]he law has long required that a competent patient’s consent to treatment be obtained, and on the whole, this principle applies to psychiatric patients as well as other patients. Even some of the medical personnel at Oak Ridge who were aware of the obligation to obtain consent, have adopted procedures which are unlikely to be found adequate should they ever be challenged in court. One doctor interviewed stated that he gave the patient medication without explanation…and unless they threw it back at him, or refused to take it, the consent of the patient was implied.

[95] Although the patients were apprised of what was being done to them through the committee system, and had an esoteric LSD reading list provided to them by Dr. Maier, the 1985 Hucker Report found that actual informed consent fell short of what was required. In the view of the “Legal Aspects” study, at pp. 153-4, there was “seldom any explanation provided to patients about the nature of the medication which is prescribed to them, its anticipated side effects, its proposed benefits and the detriment which is anticipated would occur should the patient refuse to take the medication.” Moreover, the study specifically addressed the question of involuntarily committed patients: “it is particularly important that staff realize that involuntary status does not imply incompetence to consent to treatment and does not remove the legal obligation to seek to obtain the consent of competent patients”: Ibid., p. 154.

[96] Much as the Defendants’ witnesses and counsel at trial insist that consent was actually obtained from patients at Oak Ridge, the contemporaneous evidence shows that the medical staff was aware that it was not obtained. At an inter-unit committee meeting dated June 21, 1977, the minutes of which are in the evidentiary record, this was made explicit in a commentary from Dr. Boyd and a report from Dr. Tate:

Right for Treatment:

Dr. Boyd raised this topic for discussion. He stated that we are moving closer and closer to the concept of informed consent. He proposed that we establish a policy to manage patients who are WLGs and who consistently want out of therapy. This policy could be where the patient is relieved of all privileges and left in his room. Involuntary patients who come from corrections could be returned to the referring centre.

Dr. Tate briefly reviewed some of the cases whereby patients have asked to get out of treatment. This request is denied and now the patients have changed and are now more positive towards treatment. Dr. Boyd stated that he has known of a number of patients who, when the going is rough, ask to get out of treatment. However, after they change they are once again positive.

Dr. Boyd suggested that the real issue pertains to group therapy and behaviour modification. If informed consent is required we will experience a great deal of difficulty in the treatment and management of patients.

[97] A similar inter-unit committee was held the following year, and a similar discussion ensued. The minutes of that meeting, dated November 21, 1978, show an interesting difference in views among the Oak Ridge medical staff. They also demonstrate that the medical staff was of the view that a patient under a Warrant of the Lieutenant Governor – i.e. most of the Plaintiffs – could not refuse treatment and thus did not have to consent:

Application for treatment of patient who refuses to consent can be presented to Review Board. Dr. Quinsey wondered if there was an implied duress. Dr. Stokes felt we might be overly concerned with the matter and we shouldn’t be looking for problems…

We are in somewhat different position in Oak Ridge to regional hospitals. According to Ombudsman, WLG does not qualify under this – cannot refuse to be part of therapeutic treatment – WLG is there to be treated and is out of Ombudsman’s jurisdiction.

[98] The Ombudsman’s “Evaluative Study”, at p. 3, noted that “special treatments such as by disinhibiting drugs, e.g., LSD, Sodium Amytal, Ritalin, or Ethyl Alcohol, or, the Capsule, should, and do, require that the Oak Ridge patient be aware of the effects, side-effects, and treatment goals, associated with the drugs, and the special treatment methods employed.” Dr. Maier admitted in cross-examination that the materials he had the patients study prior to their psychedelic drug experiences represented the “philosophy underlying the LSD program”, and that patients did not review any “peer-reviewed medical literature”. For that matter, a perusal of Dr. Maier’s LSD reading list reveals that the patients were not exposed to any information coming from sources that could honestly be called medical sources.

[99] The expert evidence at trial generally concurred that the requirement to obtain informed consent from patients was especially critical in the context of experimental treatments with unknown or unclear risks and benefits. Dr. Freedman testified that, in the 1960s and 1970s, mental health practitioners were required to “get consent, treat [research subjects] with respect, and do no harm in the sense that…you could do things that were unpleasant, but in the long run what you wanted to do is either benefit the people who were involved or do no lasting harm”. Further, in cross-examination, Dr. Freedman did not dispute the statement that research review boards throughout North America had, since the early 1960s, focused on “informed consent” of research subjects, and that this focus only increased in the years following that development.

[100] Using similar language, Dr. Guthiel agreed in cross-examination that it was “clearly understood” in the 1960s and 1970s that medical researchers not only had to obtain “informed consent” from research subjects, but that research subjects had to be free to “voluntarily withdraw” at any time from an experiment. Dr. Guthiel explained that, more generally, patients subject to novel or experimental treatments could not be harmed “simply to achieve some scientific result.”

[101] For his part, Dr. Bradford opined that “freely given informed consent” was an “absolute requirement” of the impugned programs. It was his view, as stated in his Reply Report, that there be: a) informed consent disclosure of “known risks and benefits”, b) the duty to provide consent could not be delegated to a patient’s co-patients; and c) these principles were a matter of “broad professional acceptance” during the relevant time frame.

[102] Professor Bernard Dickens, a medical ethicist who testified as expert for the Plaintiffs, stated in his Report dated April 24, 2019 that the Nuremberg Code of 1947 and the Declaration of Helsinki of 1964 set the “ethical standard which related to the treatment of patients at issue in these proceedings.” As he explained it, this standard required that in the case of an “innovative” proposed intervention “without relevant precedent”, such as the DDT program in general and the LSD component of that program in particular, it was an ethical requirement to guarantee, inter alia, “subjects’ adequately informed, freely given consent.”

[103] Professor Dickens further acknowledged in his Report that Dr. Barker’s or Dr. Maier’s influence over the ultimate ability of each patient to be released into society gave him pause – Dr. Maier stated, for example, that it took “a lot longer on average” to be released from Oak Ridge if patients did not “go along with these programs DDT, Capsule, MAP”. Professor Dickens ultimately concluded that the necessary level of informed consent was absent from the STU programs.

[104] Professor Dickens also noted in his Report that the patients ought to have had a right of withdrawal, as guaranteed by the Declaration of Helsinki. Despite Dr. Maier’s admonitions to the contrary with respect to the LSD treatments, it was Professor Dickens’ view that “this feature of ethical program design appears absent” from the STU’s programs.

[105] In his examination for discovery, Dr. Maier characterized the STU programs as a “principal door to freedom”. He conceded that patients who were not participating in the programs could expect to spend a “decade or decades being held in a maximum-security facility”. He further stated that patients operated under the understanding that “active participation in the impugned programs…was…necessary to getting a positive recommendation…from the Advisory Review Board.”

[106] Along the same lines, Dr. Gutheil agreed in cross-examination that there would be a “huge coercive element with respect to any consent that may have been given to participate” in the impugned programs if STU patients understood that the programs were, effectively, the “road to freedom, and not participating was a dead end.” He also conceded that, to the extent that patients were being “coerced as a result of the milieu”, this could lead to a “lack of consent”.

[107] To put the point as Dr. Freedman put it in his cross-examination, “the people who were incarcerated against their will, they’re under great pressure to agree.” Indeed, Dr. Freedman in his professional writings has argued by analogy that if the invitation to participate in research “is made by the students’ professor, who implies that it may affect their grades, obviously this is undue pressure and does reduce or eliminate the freedom to refuse”: R. Abramovich, J.L. Freedman, K. Thoden, C. Nikolich, “Children's capacity to consent to participation in psychological research: Empirical findings” (1991) 62 Child Dev 1100. It stands to reason that if it is coercive to make participation in an experimental treatment or research endeavor a condition for getting an ‘A’ rather than a ‘B’ in a class, then it must be highly coercive to make such participation a condition for gaining freedom from a maximum-security state institution.

[108] In addition to all of that, the DDT program was attractive to the Oak Ridge patients for non-therapeutic reasons. Dr. Barker in the early days, and Dr. Maier in subsequent years, chose for the program those patients who had already experimented with “illicit chemicals” on the street and who signed up for more: Maier and Tate, “The use of LSD in a therapeutic community”, pp. 145-6. Various Plaintiffs testified that the DDT drug experiences corresponded with their street life prior to being sent to Oak Ridge. Shauna Taylor, for example, described herself as having been a full-blown drug addict as well as an alcoholic in her pre-Oak Ridge life, Joseph Bonner indicated that he experimented with street drugs – speed, LSD, marijuana, heroin – when he was 15 years old, Maurice Desrochers had a history of street drugs, and John Finlayson and Donald Everingham were alcoholics.

[109] Perhaps not surprisingly, when Drs. Barker and Maier offered the DDT program, including hallucinogens, methamphetamines, and alcohol, to drug users and alcoholics, they were willing to sign up. As Dr. Barker conceded in his 2003 cross-examination, and as must have been obvious to any observer, “some patients, who have had experience with drugs on the street, might just want a high.” To say that they gave their informed consent in any legally cognizable way would today stretch the notion beyond its breaking point. The question that remains is whether it would have done so in the 1960s through to the early 1980s.

[110] Not only the content, but the entire approach to informed consent at Oak Ridge, was strongly criticized in the 1985 Hucker Report, p. 73, which was roughly contemporaneous with the final years of the impugned programs:

The Committee endorses the viewpoint that no therapy program for mentally competent patients should be imposed without the patient’s written consent. However, this approach, though current in contemporary psychiatric-legal thinking, differs appreciably from the traditional treatment ethos at Oak Ridge which was once designated as ‘coercive milieu therapy’.

[111] Thirty-four years later, testifying at the present trial, Dr. Hucker changed his view somewhat and indicated that, at least for DDT and the Capsule, the consent standards of the day were met. Counsel for the Doctors submit that Dr. Hucker’s later view is in keeping with legal analysis of consent in the context of a facility such as Oak Ridge, which is mandated to provide psychiatric care and treatment to persons suffering from mental health disorders: see Perez (Litigation Guardian of) v Salvation Army (1998), 1998 CanLII 7197 (ON CA), 42 OR (3d) 229, at para. 7 (Ont. CA).

[112] Defendants’ counsel go on to state that it is of particular importance to take note of section 26 of the Mental Health Act, RSO 1967, c. 51 (in force from June 1968 to November 1978), which provided that a patient would be discharged from a psychiatric facility only when he was “no longer in need of the observation, care and treatment provided therein”. This arises in the context of the accusation by many of the Plaintiffs that their prospects of release from Oak Ridge was contingent on their participation in the three impugned programs. It is Plaintiffs’ counsels’ contention that this implicit coercion was built into the Oak Ridge system, and that it effectively vitiated any consent ostensibly given by the Plaintiffs.

[113] As Dr. Maier himself conceded in his affidavit tendered in this trial, this is a difficult issue in a psychiatric hospital populated by involuntary patients.

First, neither I, nor any other medical staff to my knowledge, ever suggested that a patient should participate in a program because it would help them get released from Oak Ridge…

Second, determining how and what consent to obtain from patients in a custodial mental hospital is a difficult issue. It was particularly unclear during the time I was at Oak Ridge given that the legal and medical communities were still trying to clarify and understand all of the legal and ethical issues that arise when treating patients who are confined against their will.

[114] At trial, Dr. Hucker stated in cross-examination that he continues to agree with the 1985 Hucker Report view that the obligation to obtain consent from patients had been a “long-standing requirement of the common law”. When he now states that the informed consent standards of the day were met at Oak Ridge in the 1960s and 1970s, he appears to confuse the standards applicable to regular psychiatric medication and therapy of that era and the rather novel approaches of the DDT and Capsule programs. As noted in the Ombudsman’s “Evaluative Study” and referenced above, orthodox anti-psychotic medication and unorthodox DDT drugs such as those used in the STU raise different issues about informed consent.

[115] Dr. Bradford opined in his Report that Drs. Barker and Maier were under an obligation to “provide accepted medical treatments to all patients whether voluntary or involuntary with informed consent.” He went on to state that “freely given informed consent” ought to have been an “absolute requirement” of the STU programs. Together with Professor Dickens, he further expressed the view that to the extent that the Doctors were engaged in experimentation going beyond accepted treatment, their obligations were governed by the Nuremberg Code and the Declaration of Helsinki. These principles, as explained by Professor Dickens in his affidavit, hold:

When a proposed program is without relevant precedent and innovative…and its potential benefit remains unproven, its ethical introduction requires at least prior approval from a. suitably composed independent research ethics review committee to confirm its methodology, subjects’ adequately informed, freely given consent.

[116] In their written submissions, counsel for the Crown argue that the Nuremberg Code and Declaration of Helsinki are inapplicable here, as those instruments are treaties to which Canada is not bound. This submission misses the principle of medical ethics made by Professor Dickens. These instruments are not cited by Professor Dickens as a source of international legal obligation for Canada as a signing state. Rather, they are cited as an articulation of universally accepted ethical principles applicable to physicians, the essence of which was reiterated in Canadian instruments, including the Canadian Medical Association’s Code of Ethics, 1970. Moreover, these norms of ethical conduct for experimental medicine are now, and were during the STU era, well recognized at common law: see Halushka v University of Saskatchewan (1965), 1965 CanLII 439 (SK CA), 53 DLR 2nd 436 (Sask CA).

[117] The present claim is not a medical malpractice claim, and so the question of informed consent is not a direct test for liability as it would be in such an action. Rather, the consent question goes to the ethical quality of Dr. Barker’s and Dr. Maier, which in turn will inform the analysis of their fiduciary duties to the Plaintiffs. Where experimental medicine is performed on a patient with whom the doctor has a previous and ongoing physician-patient relationship, the ethical obligations on the doctor are even more strict than in the ordinary professional relationship. They certainly involve “full and frank disclosure of all information relevant to free and informed consent”: Stirrett v Cheema, 2018 ONSC 2595, rev’d on other grounds 2020 ONCA 288.

[118] Dr. Maier agreed in his examination for discovery that, while he was working on the STU, Dr. Boyd, Dr. Barker, and Dr Maier himself all believed that “the treatment or the programs could be applied to [patients] regardless of whether they agreed or disagreed”, such that there was “no need to obtain [patients’] consent” for the DDT and Capsule regimes. Given the dramatic form of intervention represented by these programs, Dr. Maier’s admission is arresting. As the Court of Appeal has observed, treatments intended to be “mind-altering” are (and always have been) among the most intrusive; they demand scrupulous attention to patient consent: Fleming v Reid (1991), 1991 CanLII 2728 (ON CA), 4 OR (3d) 74, at para. 42.

[119] It is little wonder, then, that the 1985 Hucker Report expressed substantial concern over the cavalier approach to informed consent that they found prevailed in the STU. As the Report’s authors put it:

A number of staff, including professional staff, referred to ‘the recent change in the law’ which now requires them to obtain a competent person's consent to treatment. The Committee was distressed that this area of medical jurisprudence is not clearer to Oak Ridge staff… [U]nconsented treatment on such a patient involving any physical contact is prima facie…would leave a doctor open to a potentially very serious law suit.

[120] The attitude and practice that permeated the STU when it came to the DDT and Capsule programs fell well below the type of informed consent that applicable medical ethical standards require, both then and now.

IV. Research and experimentation

[121] Counsel for the Plaintiffs contend, without qualification, that, “[t]he evidence is overwhelming that the use of Capsule, MAPP and DDT was experimental, and that the Defendants…engaged in human experimentation and poorly structured research.” Counsel for the Crown submit, equally without qualification, that “[t]he STU programs, including the adjunct treatments [DDT, Capsule, MAPP] and the methods of control and restraint, were not research experiments. They were innovative treatment.”

[122] Counsel for the Doctors take a more sanguine approach, and submit that, “[m]uch ado was made at trial about whether the Capsule, DDT, and MAP Programs were treatment programs, experimental treatment programs, innovative treatment programs, or research experiments. This issue received more attention than it deserved.” This observation refers to the fact that sometimes the debate over therapy vs. experimentation gets lost in its own jargon. As counsel for the Doctors point out, the question is whether the 3 programs were, as the Defendants say, aimed at trying to treat the Plaintiffs, or whether the programs were, as the Plaintiffs allege, done for other purposes such as advancing scientific knowledge.

[123] In his Report and his oral testimony, Professor Dickens outlined the basic ethical requirements for medical research that prevailed during the decades in issue. In general, a physician engaged in medical research involving human subjects would be subject to all of the ethical requirements of clinical practice discussed above, plus certain ethical requirements specific to research. In an exchange between Plaintiffs’ counsel and Dr. Guthiel in cross-examination, Dr. Guthiel agreed with that basic proposition:

Q. [Y]ou would agree with me that it was clearly understood in the 60's and 70's, according to the codes of ethics, well understood at the time that any experimentation on human subjects, medical experimentation on human subjects, had to be conducted pursuant to the principles set out in the Nuremberg Code and the…

A. Yes.

[124] In his Report, Professor Dickens distilled the ethical obligations of medical researchers from a combination of the Nuremberg Code and the Declaration of Helsinki. As he explained it, these instruments were, in fact, codifications of ethical principles that were applicable even before the post-war Nuremberg trials. From the Nuremberg Code, Professor Dickens cites:

• the voluntary consent of the human subject [art. 1];

• the right of voluntary withdrawal from the experimentation [art. 9];

• the use of scientifically qualified personnel [art. 8];

• the experiment should have sufficient scientific foundation [art. 3]; and

• experiments should not be conducted where there is a basis to believe it will result in death or disabling injury [art. 5].

And from the Declaration of Helsinki, Professor Dickens cites:

• the research project must have a favourable benefit-to-risk ratio [Basic Principles, s. 3];

• research that may result in personality change requires special caution [Basic Principles, s. 5];

• the nature, purpose and risk of clinical research must be explained to the subject by the doctor [Non-Therapeutic Clinical Research, s. 2]; and

• the investigator must respect the right of each individual to safeguard his personal integrity, especially if the subject is in a dependent relationship to the investigator [Non-Therapeutic Clinical Research, s. 4a].

[125] In addition, the expert evidence from both Professor Dickens and Dr. Bradford demonstrates that, as a matter of contemporary norms of the 1960s and 1970s, ethical standards would have required any research or experimentation to cease if it became dangerous. They would also have required any research involving minors to be preceded by substitute consent. Of particular concern in the context of Oak Ridge, applicable ethical standards would have required independent oversight for any research where the subjects were in a relationship of dependency with the researcher. In fact, Professor Dickens pointed out in his examination in chief that concerns over inducements to human subjects was sufficiently pronounced during the STU era that research on inmates in prisons was impermissible.

[126] Dr. Gauthiel, called to testify as expert by counsel for the Doctors, agreed that research on human subjects has had to be done in accordance with the Nuremberg Code and Declaration of Helsinki since the 1960s. He stated that informed consent, availability of voluntary withdrawal, and ‘do no harm’ are the guiding principles of those ethical guidelines.

[127] These universal ethical obligations were recognized as applicable in Canada by the Québec Court of Appeal in Weiss v Solomon, [1989] RJQ 731, at para 93:

La déclaration d’Helsinki exige que tous les risques même potentiels, ce que la déclaration appelle ‘potential hazard’, doivent être divulgués au patient qui accepte de participer au programme de recherche. Cette obligation de divulguer les ‘potential hazard’, tel que le spécifie la déclaration d’Helsinki, devient une obligation impérative de la part du chercheur.

[128] During the course of the STU era, the ethical obligations on researchers were recognized in the medical ethics literature as being very stringent. The U.S. banned medical research using prisoners as subjects in 1976, largely in the wake of debates over the Stateville, Illinois penitentiary malaria experiments that utilized inmates as “reservoirs for the disease and as a food source for the mosquitoes”: Nathaniel Comfort, “The prisoner as model organism: malaria research at Statesville Penitentiary”, (2009) 40(3) Stud Hist Biomed Sci 190, n 7 and accompanying text.

[129] Writing in the McGill Law Journal in 1981, Professor Margaret Sommerville observed that “if the intervention is non-therapeutic, it is the most exacting standard of disclosure which applies”: M. Sommerville, “Structuring the Issues in Informed Consent”, (1981) 26 McGill LJ 740, 765. Writing in the University of Toronto Faculty of Law Review in the 1960s, near the dawn of the STU era, Professor Stephen Waddams observed:

It is clear from this statement of the law that the duty owed by an experiment of to his subject is very high indeed. Evidently, to be safe, an investigator ought to err on the side overstressing the risks of a proposed experiment rather than on the other side. The investigator’s good faith is not a defence.

S.M. Waddams, “Medical Experiments on Human Subjects” (1968) 25 UT Fac L Rev 47.

[130] In a memo to Dr. Boyd dated January 25, 1967, Dr. Barker discussed the patients to be included in the STU programs under the title “Therapeutic Community Research Project Selection of Subjects”. Dr. Barker referred to the random selection of patients for the impugned programs, which is a hallmark of research, not therapy. Likewise, in a January 30, 1967 letter from Connaught Laboratories regarding Dr. Barker’s application to federal authorities for access to LSD, Connaught said, “I believe that his proposals for clinical research are reasonable.” For his part, Dr. Barker advised Health and Welfare Canada that he intended to publish the results of his “research” in a “scientific or medical journal”.

[131] Similarly, it is worth noting that Dr. Barker’s “Total Encounter Capsule” article, published in the peer reviewed journal of the Canadian Psychiatric Association, acknowledged the Donner Foundation as the funder of the Capsule project. That funding was written up in December 1968 pursuant to an application by Dr. Barker for “development and research of the Total Encounter Capsule”.

[132] The Penetanguishene Hospital’s Clinical Services Committee was under the impression that the drug program was designed as a research project. In its Minutes dated August 6, 1975, under the heading “Terms of Reference”, the committee admonished Dr. Maier that he “Must return to more medical treatment orientation rather than mystical retreat, pseudo-religious approach. Of particular importance is the fact that patients can’t give informed consent.” The Minutes then specifically state: “Valid research is not being carried out on LSD.”

[133] It is also clear that Dr. Maier was of the view that the LSD program in particular was a form of research. He and Dr. Tate wrote up their experiences as medical research scholarship, and submitted them as articles to scholarly journals. I pause here to note that some of the responses they received from editors of those peer reviewed journals are insightful.

[134] A May 14, 1979 letter from the editor of a professional publication to Dr. Maier stated that, “I regret to inform you that the editors of the Journal of Psychedelic Drugs have chosen not to accept your manuscript, ‘The F Ward LSD Community’, for publication, due to the less than positive response from our Review Board. I have enclosed copies of these evaluations for your information. Both the reviewers have done extensive research with LSD.” The reviewer then states in his/her review of Dr. Maier’s article: “Overall, this study raises a number of serious ethical and clinical judgment questions. The research findings do not add anything new to the psychedelic drug treatment literature. I cannot recommend that it be published.”

[135] In a similar vein, Dr. Tate received a letter dated August 20, 1979 from the editor of the International Journal of Offender Therapy. In it, the reviewer of Dr. Tate’s and Dr. Maier’s co-authored article states, “If the aggressive behavior or hostility of these patients is relevant to the program, it should have been measured pre-LSD and post-LSD; if not relevant, why not try the program with ‘standard’ mental patients rather than prisoners, the voluntariness of whose participation is questionable (‘a moot point,’ according to the authors)?” The professional reviewer goes on to conclude, with a degree of ironic understatement, “In summary, I think that this is an interesting, well-written, descriptive paper without scientific value. It should be published only if the editors would enjoy inciting ethical controversy.”

[136] It is more than clear that if the STU programs were research, they were not structured along appropriate lines. In Stirrett (SCJ), supra, at para 33, the court at first instance indicated that, “Medical research on humans necessarily involves a risk of harm. Greater risk may be tolerated to obtain more valuable outcomes. The decision on whether such research can proceed must be made by bodies independent of the group proposing the research (or principal investigators).” And while the Court of Appeal, having decided the case on other grounds, declined to express an opinion on the correlation of risk to outcomes, it confirmed the requirement that “research involving human subjects…be overseen by a Research Ethics Board”: Stirrett (CA), at para 10.

[137] There was no such independent oversight of Drs. Barker and Maier in the STU, except by the Penetanguishene oversight committees which were substantially removed from real knowledge of the programs during most of the period in which they were operating. As will be explored later in a patient-by-patient review, Dr. Boyd did have some input with Drs. Barker and Maier, but while he was directly involved with certain of the patients he provided no effective oversight to the treatment of the rest. The oversight committees did ultimately shut down the STU programs many years later, but there was no real independent oversight body which followed the programs as they developed on the ground.

[138] In the 2003 certification motion presided over by Justice Cullity, Dr. Hucker submitted an expert Report (the “2003 Hucker Report) in support of the Doctors. In that Report, he condemned the exaggerated analogies employed by the Plaintiffs with respect to the STU programs. At the same time, he expressed the view that the impugned programs were not truly experimental:

The STU program at Oak Ridge was not experimental in the way that term is used by the Plaintiffs’ expert. The suggestion that the STU program mirrored the experiments of the Nazi doctors tried at Nuremburg is melodramatic… The STU was, at the time, a pioneering effort to provide treatment to these otherwise untreatable patients.

[139] Undisclosed to the Plaintiffs at the time was a 2002 draft report (the “2002 Hucker Rep;ort”) which Dr. Hucker wrote for the Doctors but which was replaced by the 2003 Hucker Report and so was never used. In the 2002 Hucker Report, Dr. Hucker also condemned the exaggerated analogies of the Plaintiffs. But beyond that, he opined the opposite of what he ultimately submitted the following year:

I would agree that this programme, taken in total and individually, was ‘experimental’. It was referred to as such by Dr. Barker and Dr. Maier at the time and in various documents referring to this program between themselves and the Ministry of Health. However, the suggestion that the programme mirrored the experiments of the Nazi doctors tried at Nuremberg is melodramatic.

[140] Counsel for the Doctors submits that this contradiction, which counsel for the Plaintiffs considers a form of smoking gun, is really a tempest in a teapot. In their view, the debate is more semantics than substance, and turns on Dr. Hucker’s use of quotation marks around the word “experimental”. In the Doctors’ counsel’s submission, in the 2002 Hucker Report, Dr. Hucker used the word “experimental” in the way that Drs. Barker and Maier did – i.e. that the treatments were experimental advancements on existing models of therapeutic communities such as those developed by Maxwell Jones in the U.K. This is a different nuance than the way the Plaintiffs and their counsel use the word to connote human experimentation of the more formal, drug-trial variety.

[141] It may be true that the debate is over language. In any case, the debate is not particularly illuminating for present purposes. Dr. Freedman testified that the impugned programs were “experimental”, but they were not research. In much the same way, Dr. Guthiel, in cross-examination, both agreed and disagreed with the “experimental” label put on the STU programs by Plaintiffs’ counsel:

Q. Sir, you describe these programs, and you – I think you refer to them as experimental?

A. Small “e”, yes.

Q. Small “e”.

A. Yes.

Q. Not large “E” Experiments?

A. Right.

[142] Dr. Guthiel’s semantic distinction corresponds with the way in which Dr. Maier used LSD in the STU. In his cross-examination at trial, Dr. Maier confirmed that not only did he report to Dr. Boyd, but that Dr. Boyd also provided hands-on directions on the nature of the more novel parts of the STU programs. Thus, in a memo dated August 11, 1975, Dr. Boyd wrote to Dr. Maier expressing concern about the direction of the LSD sessions, making it obvious that they entailed something more than the strictly therapeutic use of the drug:

The use of LSD as an experimental and research tool has been undergoing some change from the approach originally approved. I would ask that you would not commit us to further LSD sessions beyond those presently approved until the situation is resolved.

[143] As Professor Dickens explained in re-examination, the ethical tenets of medical research would apply not just to self-declared research projects, but to novel and ‘experimental’ forms of therapy that departed from the orthodox therapies of the day. Plaintiffs’ counsel asked this specific question to Professor Dickens in re-examination:

Q. [T]o the extent that research programs or therapeutic programs with a research component were in existence in the 60’s and 70’s, could those programs be conducted without regard to ethical concerns?

A. Well, it’s tautological. Not ethically.

Q. And leaving aside tautology, can you elaborate on that?

A. Yes. The – the evolving expectation triggered by Nuremberg, but not originating in Nuremberg, is that there will be ethical perceptions brought to bear.

[144] The evidence shows that the impugned programs were both treatment/therapy and research/experimentation. The DDT, Capsule, and MAPP were used on the Plaintiffs precisely because they were all custodial patients whose antisocial personality disorders or schizophrenia had resulted in acts of criminality and violence. In Dr. Barker’s and Dr. Maier’s era, these patients had no other hope of relief from their conditions than a novel and experimental therapy that could potentially revolutionize psychiatric medicine in general for these kinds of disorders. The Doctors thus embarked on experimental forms of therapy.

[145] The STU programs in issue were therapeutic/treatment approaches to the Plaintiffs as patients, albeit unproven and ultimately ineffective approaches. They were also experimental research projects, albeit unstructured and haphazard projects. But they were a hybrid of treatment and research nonetheless.

[146] When Plaintiffs’ counsel and expert witnesses contend that DDT, Capsule, and MAPP were not treatment or therapy, what they mean is that they were not proper or beneficial treatment/therapy. And when Defendants’ counsel and expert witnesses contend that same 3 programs were not research or medical experiments, what they mean is that they were not methodologically sound research or medical experiments.

[147] Without meaning to be blunt, poor treatment is ‘treatment’ and poor research is ‘research’. A hybrid set of programs like DDT, Capsule, and MAPP are required to conform to the ethical standards applicable to both categories. In failing to do so, the programs were conducted in a way that violated the applicable ethical principles.

V. Confinement and restraint

[148] The Plaintiffs argue that solitary confinement was used as punishment for non-compliance with STU rules or disruptive behaviour, and that this practice caused harm. Dr. Maier testified that they were most frequently confined for violently acting out. In this regard, several of the Defendants’ expert witnesses were of the view that short stints in seclusion (the preferred term of the Doctors’ witnesses) is not harmful. Dr. Chaimowitz and Dr. Turrall testified that medical seclusion – i.e. solitary confinement with a therapeutic rather than punitive purpose – is a legitimate part of treatment, while Dr. Bradley Booth indicated that milieu therapy depends on cooperative patients and that excessively disruptive ones need to be removed and confined until they can participate again.

[149] The Plaintiffs, on the other hand, testified that they were frequently confined for a variety of unjustifiable reasons. A number of Plaintiffs (Joseph Bonner, Stanley Kierstead, Shauna Taylor, to name but a few) related, and contemporaneous medical records tend to confirm, that they were placed in confinement for petty misdeeds – e.g. failing to follow group discussions, being confused, making sarcastic remarks, and challenging the authority of patient teachers. They also testified that confinement on the STU typically lasted several days as a precursor to being sent to MAPP, although there is also evidence of it occasionally lasting a longer time.

[150] There are three questions that arise with respect to the allegations regarding solitary confinement: a) what was the nature of the confinement, b) are the Doctors responsible for it, and c) is it properly at issue in this trial?

[151] Counsel for the Plaintiffs summarize the evidence with respect to the confinement policies at Oak Ridge in their written submissions by noting that while confined, “patients were frequently prohibited from speaking to other patients.” Having heard the Plaintiffs’ testimony, this strikes me as a fair one-sentence summary of the nature of the confinement at issue. In cross-examination, Dr. Maier testified that confinement was a recognized form of management for patients who were out of control and potentially assaultive. This was in keeping with Dr. Maier’s evidence respecting the MAPP. Dr. Tate testified that when a patient’s medical records indicate the patient was “confined”, it signifies that he was kept in his room on the ward. Several Plaintiffs confirmed in their testimony that although the rooms were more like jail cells than hospital rooms, they did have a sliding bar door that permitted them to see and communicate with people outside in the corridor.

[152] A number of Plaintiff testified about being confined in so-called “strip rooms”, were different from the patients’ regular rooms. The strip rooms had bed which consisted of a cement slab (a “Barker bunk”), with a mattress added at nighttime. Dr. Quinsey testified that patients were confined to strip rooms if they were at risk of destroying the contents of their own room or otherwise being violent. Even in the strip rooms, where the deprivations were certainly severe, the patients were able to communicate with attendant staff.

[153] The Doctors’ counsel points out that with these conditions, the “confinement” or “seclusion” employed in the STU was significantly different than “solitary confinement” or “administrative segregation” as those terms are defined in federal penitentiaries. In Canadian Civil Liberties Association v Canada (Attorney General), 2019 ONCA 243, at para. 1, Benotto JA, on behalf of a unanimous Court of Appeal, indicated that, “[t]he distinguishing feature of solitary confinement is the elimination of meaningful social interaction or stimulus. It has the potential to cause serious harm which could be permanent.” The evidence in that case described the only a minimal outlet from an inmate’s cell: “The heavy steel door has a small food slot a few feet off the ground. It is often through this food slot that interactions with staff and health personnel take place”: Ibid., para 20.

[154] Without doubting the severity of the discomfort felt by the Plaintiffs who spent time in confinement at Oak Ridge, the conditions do not compare with those attributed to federal penitentiaries. That is not to say that excessive time in Oak Ridge’s version of confinement would not qualify as abusive, especially as Oak Ridge is a hospital setting, not a prison. However, the most significant impact of the 3-day stints in confinement that appear to have been typical of the STU is as a precursor to a 14-day cycle in MAPP (or 10-day cycle in MotoPro) – reminiscent of a ‘softening-up’ before the main battle. When the confinement period is added to the MAPP period, and the constant threat of MAPP repeating itself along with a new confinement period if the patient so much as moves without permission while in MAPP, the experience becomes all the more intolerable.

[155] There is also evidence in the record of the attendants confining patients to their rooms/cells as punishment for violent or threatened violent actions. Dr. Quincey testified that this was more prevalent in the other Oak Ridge programs than in the STU, since chronically assaultive patients tended to be taken out of the milieu therapy program. However, the punitive use of confinement such as was used more commonly in prisons in the 1960s and 1070s era was not absent from Oak Ridge. Dr. Quincey explained in his examination-in-chief:

…these decisions to confine patients were made by – by attendant staff, usually, and there was variability amongst the attendant staff in terms of their attitudes towards the patients in their charge. Some of them, a small number, had very negative attitudes towards the patients. They were punitive, and they were essentially not in favour of treatment programs for psychiatric patients, particularly forensic patients.

[156] It is clear from the record that confinement of some kind was part of the reality of Oak Ridge as a maximum-security institution. As the Doctors’ counsel point out, it was used before, during, and after the STU programs were in existence, and was not an approach to security that was unique to the STU or, for that matter, to Oak Ridge. It could be ordered by attendants and nurses as well as doctors. While confinement may or may not have been abusive, it is not a particular part of the DDT, Capsule, or MAPP and so is not automatically part of this claim without being specifically pleaded.

[157] It appears that with one exception – Joseph Bonner – the Plaintiffs did not plead that confinement was a distinct factual ground of liability. The causes of action are focused on the three STU programs, and does not veer into general treatment of patients at Oak Ridge separate and apart from those programs. Paragraph 48 of the Amended Second Fresh as Amended Statement of Claim frames the issues as follows:

(b) The Experiments

46. Between 1965 and 1983, the Plaintiffs, together with dozens of fellow inmates, were forced to participate in these discrete mind control/mind altering experiments, which incorporated abuse coupled with psychological and physical torture. The human experimentation initiated and conducted by Barker and Maier, and continued by O’Reilly, was divided into three main programs/experiments in the STU at Oak Ridge, as follows (collectively the ‘Experiments’):

(a) Motivation, Attitude, Participation Program (‘MAPP’);

(b) The Total Encounter Capsule Program (the ‘Capsule’);

(c) Defence Disruptive Therapy (‘DDT’).

[158] Counsel for the Doctors points out that no facts concerning the overall nature of solitary confinement are pleaded. Moreover, the Claim does not describe how a finding that a Plaintiff was in solitary confinement – on its own, absent connection to MAPP – would result in liability under a recognized and pleaded cause of action, other than for Joseph Bonner.

[159] As a matter of fact, the Claim does not plead that any Plaintiff except Mr. Bonner even experienced “solitary confinement” while housed at Oak Ridge. Notwithstanding that limitation in the pleading, at trial Allen McMann, Denis LePage, Eldon Hardy, Stanley Kierstead, Stephen Carson and Danny Joanisse, and Shauna Taylor, in addition to Joseph Bonner, all claimed that they had suffered harm due to being in “solitary confinement” for lengthy periods while they were admitted to the STU. Further, Dr. Bradford, who spoke extensively about the harms of solitary confinement in his trial testimony, never mentioned this as an independent wrong done to the Plaintiffs (except Joseph Bonner) in his expert report. It was all raised for the first time at trial as an independent wrong or an independent head of the damages claim.

[160] The Court of Appeal addressed a similar problem in Kalkinis v Allstate Insurance Co. of Canada (1998), 1998 CanLII 6879 (ON CA), 41 OR (3d) 528. It concluded that plaintiffs cannot add a new cause of action, or a new factual basis for liability, for the first time at trial:

The parties, certainly the appellant, were proceeding on the basis that this was an action in contract on an insurance policy. The record had been developed within the confines of the cause of action as pleaded. Accordingly, it was impermissible for the trial judge to entertain an argument founded on totally different legal principles.

[161] It would amount to a reversible error if I were to consider placing liability on the ground of solitary confinement for any of the Plaintiffs except Joseph Bonner for whom it is expressly pleaded: Allan v New Mount Sinai Hospital (1980), 1981 CanLII 3002 (ON CA), 33 OR (2d) 603 at para 1 (Ont CA). Accordingly, I will not consider placement of a Plaintiff in solitary confinement for an extended period of time to be an independent cause of action advanced in this trial, except with respect to the Plaintiff, Joseph Bonner.

[162] That said, the use of confinement in association with MAPP is a factual matter to be taken into account in assessing that program. In this regard, Dr. Bradford’s exchange with Plaintiff’s counsel in examination-in-chief is instructive:

Q. Some plaintiffs have testified that if they didn’t say the right things in these group sessions, if they stared out the window instead of looking at the other patients in a discussion, if they spoke poorly of another person, that they would be, at the recommendation of the other patients, put into solitary confinement, sometimes naked, sometimes not, as a form of punishment. Do you have an opinion as to whether or not that constituted acceptable medical treatment in a group therapy setting?

A. No, it’s not. It’s not acceptable medical treatment. It’s not acceptable any treatment, as far as I’m concerned.

[163] As for physical restraints, the record is replete with testimony from the Plaintiffs about the use of restraints made of a seatbelt strap type of material. The thinking behind this kind of binding of the hands (and sometimes the feet) was that it would provide a means of keeping a patient in the company of others and in therapy while reducing his risk of violence. According to Dr. Barker, this handcuffing kept the potentially violent patient continuously in the company of others and free to talk with them, rather than being isolated in confinement. Dr. Barker also stated that the patient/observer to whom the bound patient was joined derived the satisfaction of being the helpful party in the relationship: E.T. Barker, M.H. Mason, J. Walls, “Protective Pairings in Treatment Milieux: Handcuffs for Mental Patients” (1968/9), p. 3.

[164] Contrary to this somewhat benevolent-sounding explanation for binding patients by the hands and sometimes the feet, the Plaintiffs described this practice as gratuitous and abusive. Samuel Shepherd’s Clinical Record for March 18, 1973 states, “placed on double restraints when he became shut down and appeared to be suppressing a lot of hostility. He later became open with the group and restraints removed.” He described the double restraint as seatbelts fastened with a padlock. Shauna Taylor pointed out in her testimony that the MAPP rules, a copy of which is in the Crown’s evidence, provide that “[a] person can be placed on restraints for threatening to hurt others (acting out), refusing to attend the program or unpredictability.” She testified that non-participation or voicing any complaint about the harsh treatment was considered showing a lack of “motivation” and resulted in restraints.

[165] Several of the Plaintiffs described a method of restraining called the “turkey strap”, which was said to be excruciatingly painful. According to Danny Joanisse, who testified as to being turkey strapped on several occasions, it involved seatbelt straps at both the ankles and the wrists, with an extra strap hooked between the ankles and pulled up behind the back and locked in place. Counsel for the Crown insisted in submissions made at several points during the trial that this never happened and that it is a story made up by the Plaintiffs.

[166] The documentary record does not provide a definitive answer to how invasive the restraints used at Oak Ridge could be. I do note, however, that several of the Plaintiffs’ medical documents refer specifically to their being placed in a “T strap”. Counsel for the Plaintiffs contend that this is a reference to the notorious “turkey strap”, while the counsel for both sets of Defendants contend that it refers to a less severe method of cuffing or restraining. Read in context, the Clinical Records suggest that the “T strap” was only used when regular cuffing did not suffice to restrain a volatile patient. Thus, for example, the Clinical Records for Jean-Paul Belac dated June 22 and 24, 1972, written by hospital personnel, state:

June 22, 1972 – ‘Attacked another patient. Was overpowered by patient security committee and was placed on double restraints.’

June 24, 1972 – ‘Slipped out of cuffs and had to be forcibly restrained while T strap was being applied.’

[167] In “Protective Pairings”, at p. 3, Dr. Barker wrote, “The ostensible barbarism of procedures which involve direct physical restraint can often obscure their advantages in therapy.” On the other hand, Dr. Bradford gave the diametrically opposed view in his examination in chief, stating, in effect, that the use of restraints as described by the Plaintiffs is all barbarism and no therapy.

Q. In the context of the MAP Program, and in the context of the Social Therapy Unit, do you have an opinion as to whether the use of restraints, cuffs, and we heard about turkey straps, as a form of punishment for comments made that weren't considered appropriate or lack of participation in a group discussion?...

A. No, it’s not an acceptable form of medical treatment, and it’s – it’s – even as far as punishment, it’s seriously problematic, and if I understand some aspects to it, there were some people who were probably deliberately paired with individuals that caused them anxiety and distress, so it had a – a kind of a coercive distress, traumatic-inducing component to it as well.

[168] This last point – that restraints were used to intentionally pair domineering with submissive patients – was related most graphically by Danny Joanisse. He testified as to being in the SVU as a small 14-year old boy. He related that his most vivid memory of the STU was having spent several days in the Capsule cuffed to a convicted pedophile murderer named George White. Dr. Hucker, in his testimony at trial, conceded that this would have provoked substantial anxiety and stress, and that it potentially could have caused lifelong harm.

[169] Dr. Barker explained in “Protective Pairings”, that the task of choosing the “observer” to whom a patient would be cuffed was delegated by the Doctors to a patient committee. The theory was that an antagonistic observer would have to learn to care for his charge by being bound to him for hours a day, which would thus have a positive effect on both the bound patient and the bound observer. In Dr. Barker’s words, at pp. 3-4:

Patient committees are aware of the potential value of the intense interaction experienced by someone joined to others for sixteen hours a day, and when assigning observers make tactical use of the patient’s enemies and friends in an effort to facilitate helpful encounters.

[170] Dr. Hucker, who was produced by the Defendants as an expert witness, conceded in cross-examination that restraints were an integral part of the DDT and Capsule programs as well as the MAPP. In fact, he learned that from Dr. Barker’s own writings:

Q. And Barker made clear in his writings that cuffs were used to control increased risk of homicide and suicide associated with the use of the DDT drugs?

A. Right.

Q. Because the DDT drugs would often induce homicidal or suicidal thoughts?

A. Or it could do, yeah.

[171] The use of restraints is part and parcel of what the Plaintiffs allege was the non-medically indicated, abject cruelty of the 3 impugned programs. The “tactical use” of the patient’s enemies in bounding him together with another patient, and the painful contortions into which the other inmates, exercising delegated authority from the Doctors, caused them to be strapped, all factor into the analysis of the DDT, Capsule, and MAPP and its impact on the Plaintiffs.

[172] As Dr. Hucker acknowledged in cross-examination, the use of restraints in this context was, from a medical practitioner’s point of view, entirely inappropriate:

Q. And as a way to mitigate those homicidal or suicidal urges Barker divides this idea of cuffing one patient to another after they have been injected by these DDT drugs?

A. Right.

Q. Would you agree that, all things being equal, that in and of itself is a barbaric action of a – of a psychiatrist?

A. I – I think it was misguided. I don’t think that was an appropriate approach.

VI. Plaintiffs’ histories and individual causation

[173] As already apparent, much of the evidence in this trial centred on the 3 impugned STU programs and the activities of the Doctors and Oak Ridge as an institution in putting them into operation. That is not to say, however, that the trial presumed that all of the claimants experienced the programs in the same way. This was, first and foremost, a trial of specific claims of damage brought by 28 individual Plaintiffs as a result of treatments they underwent in the 3 programs, which treatments were imposed on them individually by Dr. Barker, Dr. Maier, or one of the other three named Oak Ridge medical personnel (Drs. Boyd, Tate, or O’Reilly), and caused them specific harms.

[174] Each of the Plaintiffs submitted an affidavit and/or agreed statement of facts and testified at trial, with the exception of several deceased Plaintiffs whose executors testified and whose discovery transcripts or other evidence is in the record. Further, each of the Plaintiffs were the subject of a medical records evaluation by one of the Defendants’ several expert witnesses and by Dr. Bradford on behalf of the Plaintiffs.

[175] Overall, there are 4 issues to be considered in reviewing the evidence with respect to each of the Plaintiffs: i) their pre-Oak Ridge background and index offence or reason for having been committed; ii) their experience at Oak Ridge with any of DDT, Capsule, or MAPP; iii) their post-Oak Ridge experience; and iv) an identification of harms that the STU programs might have caused them. A proper review of this evidence requires that the Plaintiffs be considered one at a time.

a) Reginald Barker

[176] Reginald Barker passed away in April 2020, just after the trial had ended but while judgment was still under reserve. There has not yet been an Order to Continue sought with respect to Mr. Barker’s claim, and so technically it is stayed. However, Plaintiffs’ counsel advised that they would likely be seeking an Order. On the assumption that they will be so instructed, I will review the evidence with respect to Mr. Barker as if the claim were being continued by his estate representative.

[177] Mr. Barker – no relation to the Defendant, Dr. Elliott Barker – spent exactly 10 years in Oak Ridge. He was first admitted to the institution in March 1968 and was finally discharged in March 1978.

i) Pre-Oak Ridge and index offence

[178] Mr. Barker was born in 1946 in Nova Scotia and lived in that province until his teenage years. He deposed in his affidavit that his father was an alcoholic and was violent with his mother, and that his parents separated when he was 14 years old. He did not attend school past grade 6. In a report written about Mr. Barker to an Ontario Review Board in 1990 by Dr. Bradford, it was related that Mr. Barker recalls having some sexual contact with his mother as a young teen and also having coerced a number of younger girls into sexual activity. In his testimony, he described entering the home of a pregnant woman and four children with the intention of killing them when he was 15 years old, but leaving before he could do them any harm.

[179] The family moved to Toronto when Mr. Barker was 16 years old, and his criminal activity and sexual aggression began to escalate. In a March 1968 psychological evaluation, he related that he had several years previously broken into a church and attempted to rape a 77-year old woman at knifepoint. He was remanded to Don Jail, where he reported hearing voices telling him to murder. This resulted in his being committed to Lakeshore Mental Hospital for two months in 1963, where he was diagnosed as a pathological personality, anti-social type.

[180] In a Clinical Record from Lakeshore date March 28, 1963, the examining psychiatrist noted:

He talked about his auditory hallucinations and stated that he had experienced episodic hallucinations of this kind over the past two years. He stated that these voices urged him to steal and to assault and more recently to kill people, especially women. The most recent development was his statement this morning to one of the female nurses that he was going to kill her and had it planned how he was going to carry out the task. He indicated that the voices told him to kill the nurse and also others… He admitted that his recent assault on a woman which led to his admission here was a planned episode that he had thought out for a week. He stated that he intended to kill her and might have done so if he had not been aware of some passers-by outside the window… He also mentioned some kind of sexual assault or molestation of three boys and three young girls at one time but did not elaborate. He talked about all these things in a very matter of fact manner. He showed no signs of embarrassment or expression of guilt.

[181] Mr. Barker deposed that in 1963, at the age of 16, he was convicted of armed robbery and rape of the 77-year old woman, resulting in a 5-year sentence in Kingston Penitentiary. He was assessed by a psychiatrist on September 5, 1963 and on August 10, 1964, while at the Kingston Penitentiary. The Assessment, which is in the evidentiary record, reported that Mr. Barker continued to be impulsive and aggressive towards women. He was released from Kingston in 1966, and soon afterwards assaulted his 5-year old niece and was admitted to Queen Street Mental Health Institution. Upon discharge from Queen Street in 1967, he was diagnosed with pathological personality, pedophilia with anti-social traits.

[182] On February 20, 1968, Mr. Barker killed a woman at work. Some years later, in July 1986, he reported to a consulting psychiatrist at Penetanguishene that “at that time, she seemed to be like his mother in that she was separated, had a number of children and several lovers and he stated that he then thought that “if I kill this woman, my problem will go away”. As a result, he was committed to Oak Ridge at the age of 21 on a Warrant of the Lieutenant Governor. In a Clinical Record dated June 8, 1968, a social worker interviewing Mr. Barker noted that:

In discussing whether or not he might kill again, patient Barker stated that he just did not know. He recognizes that a number of his upsets this last while have been the result of his thinking about this as well as his feelings of resentment toward his mother and favouritism toward his father after their separation, and his unhappiness with his mother for her transient common-law relationships.

ii) Experience in the STU

[183] Mr. Barker insisted in his testimony that he signed consent forms for sessions in the Capsule and DDT, including LSD sessions, because he was told by the Doctors that it was treatment for his psychiatric condition. In fact, he testified that Dr. Maier had announced to him and a group of patients that LSD was the “cure for psychopathy”. As Mr. Barker put it in cross-examination, “If you were a psychopath and you heard this you would have signed up too.”

[184] In his affidavit, Mr. Barker deposed that impressing Dr. Barker by participating in the STU programs was his only route to release from Oak Ridge. Having said that, he also testified that Dr. Barker assured him that he would not be forced “to do anything”. Mr. Barker then agreed with questions put to him on cross-examination that Dr. Barker treated him with respect and he never actually forced him to do anything against his will. In fact, he stated that he felt that Dr. Barker was particularly friendly to him as they shared the same last name.

[185] The Clinical Records show that Mr. Barker had a total of five DDT sessions in the Capsule, including one LSD session. After his first Capsule session on April 29, 1969, a social worker recorded in the Clinical Record that Mr. Barker “seemed to be in good spirits” and that he “expressed…, as did the rest of the group, a wish to return to the capsule with the same people.”

[186] It would seem that Mr. Barker’s Capsule session the following month was somewhat less rewarding. The records of May 1969 show that Mr. Barker initially described the experience as “relaxing”, but eventually became hostile toward a fellow patient who suggested they stay another two weeks. Mr. Barker threatened to kill someone if he was not let out of the Capsule. The Clinical Records of the session indicate that it was a very uncomfortable l02 F in the Capsule for this session and that the patients were naked on a rubber floor and shared an open toilet. Mr. Barker is recorded as having exclaimed, “You give us no shower, treat us like animals”, and then, “Let us out of here, Dr. Barker.”

[187] In a lengthy document, a patient observer group documented this May 26, 1969 session in the Capsule hour by hour. The documentation records that Mr. Barker and his several other patients were “screaming to be let out”. In their written submissions, counsel for the Doctors point out that Mr. Barker’s desperate screams for help were only one incident that day, and that prior to that Mr. Barker was apparently lying in the Capsule trying to sleep. With the greatest of respect, this submission is reminiscent of the apocryphal question ‘beside that, Mrs. Lincoln, how was the show?’ A half-day that ends with a person screaming in pain and trauma is not an overall quiet day.

[188] Mr. Barker agreed in his testimony that he was informed that the purpose of the Capsule session was to help the patients discover more about themselves, and that the group would collectively decide when to exit the Capsule and when to sleep. The Clinical Record relates that at the time, Mr. Barker attributed his hostility to the feeling he had that one of the patients was rejecting him in favour of another in the Capsule.

[189] Mr. Barker appended to his affidavit a number of Treatment Records from Oak Ridge detailing his DDT treatments:

Scopolamine and Dexedrine for 2 weeks beginning on September 2, 1969, administered by Dr. Barker;

Dexamyl-Tofranil treatment for 7 weeks beginning in November 1972, authorized by Dr. Maier.

Alcohol treatment on January 15, 1976 and alcohol-Ritalin on December 6, 1977, both authorized by Dr. Maier.

Sodium Amytal on November 20 and December 10, 1973.

Sodium Amytal on January 7, 8, and 14, 1974.

Sodium Amytal-Ritalin on December 5, 11, and 18, 1975 administered by Dr. Maier.

Sodium Amytal-Ritalin on February 10, 1976, and Ritalin on February 20, 1976, both administered by Dr. Maier.

LSD in the Capsule on April 9, 1976.

[190] In his affidavit, Mr. Barker relates how Scopolamine induced for him a traumatic psychotic episode. He also states that while on Amytal he was psychotic and violent towards other patients, and was put on restraints. Mr. Barker also deposed that Dr. Maier then instructed staff to have the restraints removed as Mr. Barker had apparently calmed down.

[191] According to Mr. Barker himself, however, the drug experiences were what one might call a mixed experience. In December 1969, he wrote an article in The Seventh Circle about his experience with Scopolamine, describing all the pain, terror, and other negative effects he experienced with that drug. But he then went on to say:

The drugs made me aware of my loneliness and my need, my needs to be with people most of the time, more aware of what I have to do to get well; my sensitivities and my insecurities around people and doing things…

[192] In his cross-examination, Mr. Barker conceded that he had requested Amytal treatments, alcohol treatments, and LSD treatments. In a letter to Dr. Maier dated September 12, 1972, he made a request for valium, which Dr. Maier declined to give him. At the same time, Mr. Barker informed Dr. Maier that while he was not willing to try Scopolamine again, he would consider a undergoing a Dexamyl-Tofranil treatment. As for LSD, Mr. Barker was well versed with the literature provided to him by Dr. Maier on the theories of LSD. In the process, he indicated that he could have refused LSD had he not wanted it. However, he testified that he consented to this drug experience because Dr. Maier had declared it to be a cure for psychopathy – an allegation that Dr. Maier in his own testimony flatly denied.

[193] The Clinical Records for Mr. Barker from March 1968 note that he was interested in the programs, had felt that the LSD experience was beneficial and had increased his self-knowledge and helped with his acceptance of himself. However, he also testified that he had trouble writing in the immediate aftermath of the LSD session, and that he saw colours.

[194] The record shows that Mr. Barker wrote a positive letter to the Barrie Examiner on January 30, 1976 defending Dr. Maier and the use of LSD at Oak Ridge, explaining that the program was entirely voluntary by the patients. He testified that he and those who signed the letter with him felt obliged to defend the program in order to curry favour with Dr. Maier. He stated: “All of my peers knew that it was best to sign this letter to show that we were not rabble rousing, we were not challenging the system.”

[195] According to the Ward Transfer Slips and his Clinical Records, Mr. Barker was in MAPP on several occasions:

March 6, 1974 to March 10, 1974. Dr. Maier noted that Mr. Barker was admitted because, in his capacity as MAPP teacher, he had sexually abused another patient in MAPP; and

September 10, 1975 to September 22, 1975. Dr. Maier reported that Mr. Barker was placed in MAPP for being sarcastic, uncooperative, swearing at the area supervisor, and getting romantically involved with a volunteer at Oak Ridge contrary to hospital policy.

[196] Mr. Barker deposed that in March 1974, he was placed in restraints prior to his admission to MAPP, as well as in October 1969 and June 1979. He acknowledged that on those occasions he had been aggressive and hostile. He also explained that he had himself been a ‘teacher’ in MAPP, and that in that capacity he had to resort to placing restraints on fellow patients and place them in confinement when they were being “unmanageable”. At the same time, he acknowledged in cross-examination that in 1973 he had written an article in The Seventh Circle stating that cuffs were seldom used on patients because it was rare that they were so upset as to require them.

iii) Post-Oak Ridge experience

[197] Mr. Barker was transferred from Oak Ridge to Lakeshore Psychiatric Hospital on March 15, 1978. On discharge from Oak Ridge, he was diagnosed as having an antisocial personality disorder. This played out in the form of recidivist activity, and on January 14, 1979, Mr. Barker was arrested for breaking into cars while carrying a mask, knife, and screwdriver. In a memo to the Penetanguishene administration, it was noted that Mr. Barker admitted to have been looking for women.

[198] As a consequence of this offense, he returned to maximum-security at Oak Ridge pursuant to a Warrant of the Lieutenant Governor. Upon discharge on October 5, 1984, he was again diagnosed with antisocial personality disorder, and was subsequently transferred to Brockville Psychiatric Hospital where he stayed until June 4, 1986.

[199] When Mr. Barker was discharged from Brockville Psychiatric Hospital he was again diagnosed with personality disorder, psychopathic type. He then returned to Oak Ridge on June 4, 1986, where he remained until April 4, 1989. In a psychiatric evaluation dated April 21, 1987, Mr. Barker is recorded as having reported that he “could not forget what he had done [in killing his female co-worker] although he could still live with himself and he had resolved his problems with his mother. He saw Dr. Barker as having had a positive effect upon him in changing his life by means of various treatments he had received at this hospital.”

[200] Mr. Barker verified this in his testimony that this is still his view today:

Q. Is this the type of thing you would have told to a psychiatrist in the 1980s, that you thought Doctor Barker had changed your life?

A. All I know is that Doctor Barker and I got along okay. He never made me do anything, so I really don't have a beef against him. I have a beef against Doctor Maier.

[201] Mr. Barker was ultimately discharged to the Royal Ottawa Hospital, where he was assessed by Dr. Bradford on a number of occasions for the Board of Review. On August 27, 1990 and again on August 29, 1991, Dr. Bradford stated that Mr. Barker’s condition was resistant to treatment. Defendants’ counsel point out that on neither occasion did Dr. Bradford make any reference to the impact Oak Ridge might have had on Mr. Barker’s rehabilitation, although, of course, that was not exactly the topic of the two Reports. Dr. Bradford also assessed Mr. Barker on January 17 and 22 as well as on February 1 and February 21, 1990. On those occasions Dr. Bradford noted that at Oak Ridge Dr. Barker had diagnosed Mr. Barker as a psychopath, but otherwise his reports are silent on any lingering impact on Mr. Barker of his Oak Ridge experience.

[202] Mr. Barker was never released from custodial psychiatric facilities. When he testified at trial and subsequently passed away, he was a resident of the Providence Care Centre in Kingston, Ontario. Testimony given at an Ontario Review Board hearing in November 2019, in the midst of the present trial, indicates that a high level of supervision was required to manage Mr. Barker, and that the risk of violence that he poses, in particular to women, did not decline with age. The Board concluded that Mr. Barker remained a threat to the safety of the public and maintained the detention order for him to remain in a secure unit of the hospital: Barker (Re), [2019] ORBD No 535.

[203] With all of that, Mr. Barker deposed in his affidavit that he was in a long-term, stable relationship since 1991, and that he had gotten married.

iv) Causation and harm

[204] In cross-examination, Mr. Barker testified that when he left Oak Ridge he was still suffering from mental illness:

I had a good review board. But when I left the hospital, I was sick. I was very sick. I mean, I had a pretty bad upbringing and I was alone most of my life. Alone to carry thoughts of hurting people and killing people, you now? And when I left hospital, things just went worse…

What was going on inside my head was the fact that I wanted to rape and kill a lot of nurses. That was going on inside my head, and I told him. When I went to the review board… my lawyer said that I had requested far worse than the index offence – the index offence meaning murder, I was going to hurt a lot of people. That’s how sick I was.

That’s how sick I was when I left Penetang.

[205] Counsel for the Doctors submit that this description of harm is nothing more than a continuation of the psychological conditions from which Mr. Barker suffered prior to his arrival at Oak Ridge. However, from Mr. Barker’s point of view, the prolongation of his mental agony is in itself a form of harm from which he has never recovered. He continued his explanation under examination:

It’s pretty bad when you go into one hospital to get treatment – treat – God damn, I didn’t get no fucking treatment… I’ve been locked up for 50 years; 50 years of my life. All I want to do now is to get out.

[206] In examining his medical records and opining on his condition, Dr. Hucker conceded that it is possible that the use of DDT drugs by Drs. Barker and Maier could have caused the long-term suffering that Mr. Barker describes, although he offered no definitive opinion. He indicated that he had never heard of anything comparable to the drug program at the STU, and that it was so unique that he had nothing with which to compare it and against which to measure its results.

[207] Dr. Hucker indicated that it is likely that at least in the short term, Mr. Barker would have had difficult symptoms as a result of the DDT experiences. In fact, he testified that Drs. Barker and Maier expected short term suffering when they administered the drugs to their patients – that is, they aimed to provoke severe anxiety in the hope that this would prompt introspection and increased self-understanding. Dr. Hucker testified that this is borne out by the fact that in November 1974, Mr. Barker’s mother wrote to Dr. Maier asking if her son could get out of the drug program as it was causing him stress. Mr. Barker’s early suffering from DDT was also demonstrated in the article he wrote in the patient newsletter in December 1969 entitled “My Drug Treatment”. In that article, Mr. Barker described his first weeks of Scopolamine treatment:

I became quite hostile and shut down… After my second week was over, I was quite sensitive to what people were saying and doing. I was also vulnerable and fragmented. In groups that followed my treatment, I was confused and didn’t know what was really happening in them. I was more upset than I usually am or that I used to be. Now I am upset one week and feeling nothing the next, which I find to be a very frustrating experience as to why this happens to me.

[208] Dr. Hucker indicated that this could have been a case of toxic psychosis. He stated that this condition is thought to be completely reversible.

[209] Having said that, it is clear from his ongoing medical records that the traumas suffered at Oak Ridge have had the lingering effect of alienating Mr. Barker from any further psychiatric treatment. A March 16, 1993 Clinical Record at Kingston Psychiatric Hospital indicates: “Overall, Reg talked about his reluctance to get engaged in any group treatment activities. Previously he had stated this was because of his negative experience in Oakridge, Penetanguishene.” Similarly, the November 20, 1996 Disposition Orders and Hospital Reports from Kingston Psychiatric Hospital state:

The impression Mr. Barker left was that he had no interest in becoming involved in treatment, nor could he see any value in doing so. During a brief discussion of this treatment plan with nursing staff, Mr. Barker became angry and remained adamant about not taking any ‘therapy’, stating that if therapy worked it would have worked at Penetanguishene.

[210] Further, a March 10, 1998 record at Kingston Psychiatric notes that, “Reg wants to consult with Dr. J. Owen with regard to his treatment with LSD and how that impacts upon his psychiatric history.” The LSD experience seems to have been on his mind continuously, which Dr. Hucker acknowledged is a common “flashback” experience that is similar in many ways to PTSD. As an example of this continuing stress, Mr. Barker wrote to the CBC Ombudsman on February 23, 1997 complaining about the broadcasting of a show detailing some of the horrors of Penetanguishene. A Kingston Psychiatric Record dated December 24, 1997 states that Mr. Barker reported his feelings about the CBC show to medical staff:

He spoke of the horrors that took place, and of the experimental drugs that were given to the patients/inmates… Seeing the program brought back many painful memories, which I would prefer to forget. This has caused me a great deal of stress. On several occasions after viewing the film, my current doctor had to increase my antidepressant medication.

[211] Referring to the CBC program, Mr. Barker testified at trial that, “I feel the memories communicating more easily with people before this program. This is in my head all the time now…Penetang made me worse. I was sicker when I left than when I arrived. I feel more socially isolated now, I was a pretty friendly outgoing guy when I went there.” He had made similar comments to medical staff at Kingston Psychiatric Hospital at the time of the show’s airing. A Clinical Record of December 24, 1997 records Mr. Barker saying that he suffered from viewing the CBC program. The doctor noting the conversation wrote in the medical record:

[Mr. Barker said] ‘It’s making it really hard for me to forget the drugs, people, programs…the groups were brutal. I’d thought I’d forgotten everything about Penetang.’

When I asked how I could help he said he was sleeping poorly and experiencing auditory pseudo hallucinations of having his name called aloud when no one was there.

[212] This mulling over the LSD experience continued into the following year. Another Kingston Psychiatric Hospital record dated March 5, 1998 indicates:

Reg expressed some concern as to whether the LSD effected the ‘regression in my head from the index offence of murder to stalking and anger and rage. At Lakehead Psychiatric, I was armed and I was stalking to see how far I would go over the edge.’ By that Reg clarified that he meant committing the act of aggravated rape. Reg wants to speak with a professional about the aftereffects of LSD to determine whether it is possible they shifted his brain chemistry.

[213] The lingering fear of further psychiatric treatment apparently never left Mr. Barker. An Assessment Report dated April 12, 2004 states: “Mr. Barker’s refusal to engage in treatment largely continued despite the urgings of Dr. Quinsey. He has continued to decline any significant involvement in group therapy, arguing that he did such groups at Penetanguishene. Despite the clear failure of these programs he has not felt any particular need to pursue any concerted efforts at self-improvement.”

[214] As a totality, Mr. Barker’s post-Oak Ridge records indicate that while many of his mental health issues are a continuation of what he suffered prior to his admission, the STU experience – and in particular the DDT sessions – added substantially to his suffering. It is not just that those therapies failed to improve his mental health in any way; they gave him new types of stress and pain from which he never fully recovered.

[215] In the short term, Mr. Barker’s experience at Oak Ridge in the DDT program, and especially with the Scopolamine treatments, caused him great harm in the form of extreme anxiety, trauma, and indignity, and produced no beneficial effect. Over the longer term, the STU programs have caused him harm in the form of LSD flashbacks, continued anger and sleeplessness, the sense of loss of control over his faculties. Drs. Barker and Maier were both directly involved in his treatments.

b) Jean-Paul Belec

[216] Jean-Paul Belec was admitted to Oak Ridge at the age of 21 years in April 1972, pursuant to a Warrant of the Lieutenant-Governor. He remained there until February 6, 1979, when he was released to the Brockville Psychiatric Institute.

i) Pre-Oak Ridge and index offence

[217] Mr. Belec was born on September 26, 1950. His father was an alcoholic who left his mother when he was two years old. He deposed that he was physically abused by his uncle when he was 5 years old and again when he was 15 years old. He was caught shoplifting when he was 14 years old and dropped out of school at 17 years old. A Probation Officer’s Psychology Report dated September 26, 1968 indicates that he was a heavy drinker and “a restless young man who seems to have plenty of energy and drive but used it in the wrong direction… He has many positive features as well”.

[218] On cross-examination, Mr. Belec related that in his early teens he developed an urge to become a hitman and kill other people. He explained that at that point in his life he began to wonder whether he “could kill another human being without any emotion.” He perceived guilt as a weak emotion. In his affidavit, he deposed that he frequently committed minor offences in order to have the opportunity to tell the police about these urges in the hope that they would arrest him so that he would not actually kill anyone.

[219] Prior to his admission to Oak Ridge in his early 20s, Mr. Belec violently attacked two men in Saint John’s but was never charged for this crime. He also committed a number of violent attacks on others in addition to auto theft, property damage, and attempted break and enter. A Cumulative Summary of his personal history prepared at Brockville Regional Psychiatric Centre dated September 25, 1969 indicates that he was institutionalized on numerous occasions prior to being admitted to Oak Ridge. It also indicates that since the age of 14 he has felt guilty about his existence and the burden that he places on his mother, and that “he often wants to strike out and kill.”

[220] Mr. Belec’s index offence was murder of an elderly man on a street corner in downtown Toronto. The Cumulative Summary relates that he had been suppressing urges to kill until late November 1971, after a day of drinking alcohol:

He was involved in the gay community from September to December 1971 and during that time he felt the constant urge to kill. This displaced aggression, as he puts it, was discussed quite frequently with the Salvation Army in Toronto and apparently these discussions served to stave off the subject’s acting out his urge. However, on November 21^st, 1971 the subject approached the Salvation Army again in order to get help with his urge, found them unavailable, returned to his lodging, secured a butcher knife and went to the Yonge Street area of the city looking for a suitable candidate to murder. He decided that he needed someone that no one would miss…

[221] In a personal history compiled of Mr. Belec at the Clarke Institute for Psychiatry in January 1972, it is indicated that several weeks after the murder Mr. Belec apparently again felt an urge to kill, but that this time he had not been drinking and so managed to control himself. He turned himself in to the police and made a statement admitting to the Yonge Street knife attack as well as “another vicious attack he had made on somebody”. In January 1972, he underwent a pre-sentence assessment; on cross-examination he stated that at that time he received a provisional diagnosis of personality disorder-sociopathy, borderline state, schizoid personality antisocial traits.

[222] On February 11, 1972, during an assessment at the Clarke Institute, Mr. Belec stated he had “seriously thought of suicide many times, considering slashing, poison and overdose.” The Consultation Report completed on that date indicates that Mr. Belec was diagnosed with antisocial personality disorder with the “strong possibility of psychotic breaks under stress or with alcohol as a disinhibiter, alcoholism (probably more related to his depression than to dependency)”.

[223] On April 21, 1972, Mr. Belec was found “not guilty on account of insanity” and was committed to Oak Ridge pursuant to a Warrant of the Lieutenant Governor. His Interim History, prepared at the time of his admission to Oak Ridge, indicates that his diagnosis on admission was Borderline State Schizoid Personality and Antisocial Traits.

[224] On cross-examination, Mr. Belec conceded that at the time of his admission he presented with “subtle signs of illness” and demonstrated lack of remorse “for murdering an individual for no reason than feeling like doing so”. A Clinical Record prepared shortly after his admission, on May 21, 1972, indicates that Mr. Belec “seems unable to appreciate the seriousness of his situation”. It goes on to note, however, that “[o]n the ward he has been friendly and cooperative, especially to those in a position of authority.”

ii) Experience in the STU

[225] The Clinical Records at Oak Ridge establish that Mr. Belec experienced frequent violent, murderous urges. He could quickly become a high-risk, dangerous patient who was described in a Ward Transfer Slip dated May 23, 1972 as a “very highly suicidal and homicidal risk.” This risk was managed by means of confinement or restraints. In his examination in chief, Mr. Belec testified that while in confinement he was forbidden to speak with other patients, and that if he stood at the door of his cell and attempted to talk to patients or staff he would be given a shot of Nozinan. However, there is no Clinical Record verifying any such Nozinan injections.

[226] Again, on May 23, 1972 it was recorded that he threatened to kill a member of staff and slashed his arm with a pop can because he was suicidal and depressed as a result of being institutionalized. In cross-examination, he indicated that he began to tell staff and other patients when he had homicidal urges in order to be prevented from acting on them. This state of affairs was described in a Clinical Note recorded by a nurse on October 30, 1972, which on cross-examination Mr. Belec confirmed was accurate:

The patients on G-ward feel Paul represents a risk. Staff agree he has been both homicidal and suicidal tendencies, which he has not overcome. They feel Paul does not know or seem to care why he gets these urges. Paul says the comment concerning his difficulty checking periodic homicidal feelings is true, but realizing that, he tells someone in a suitable check…

[227] While at Oak Ridge, Mr. Belec was subjected to all three of the STU programs in issue.

[228] The Ward Transfer Slips and Clinical Records for Mr. Belec evidence that he was in MAPP on a number of occasions, as follows:

From June 27 to July 13, 1972, Mr. Belec was sent to MAPP for a variety of reasons:

On June 7, 1972, Mr. Belec stated he had a “desire to kill Dr. Camunias yesterday.” On cross-examination Mr. Belec explained that he was angry at the time at Dr. Camunias for suggesting he read the Bible.

On June 13,^, 1972, Mr. Belec was sent to MAPP because he had taken the “screws out of mop wringer handle so he could kill someone. Spoke about having fulfilled his commitments to God and was now working for the devil. He is going to put on an act to get out of here and then get a machine gun and use it on people.”

The Clinical Record of June 24, 1972 notes that a “t-strap” was applied to contain Mr. Belec.

From December 12 to 15, 1974. Mr. Belec was sent to MAPP by Dr. Maier for calling night staff a ‘pig’.

[229] The records also show that Mr. Belec was placed in double cuffs on a number of occasions, generally after engaging in violent behaviour or making violent threats. The first use of double cuffs is recorded in the Clinical Record of June 13, 1972, and was prompted by Mr. Belec threatening to “get a machine gun and use it on people”. When asked about this in cross-examination, Mr. Belec stated that attendants had ordered other patients to place him in turkey straps after testing to see if he slipped out of less severe restraints.

[230] Again, the Clinical Records show that Mr. Belec was in the Capsule on the following occasions:

Approximately June 13-21, 1972;

For a period in January 1973, after signing a Capsule Therapy Contract dated January 23, 1973;

For a period in February 1973, after signing a Capsule Therapy Contract dated February 13, 1973

While in the Capsule in February, 1973, Dr. Maier ordered a Dexamyl treatment to be given in spansule form for a week;

For a period in August 1973, after signing a Capsule Therapy Contract dated August 11, 1973;

September 17 to October 1, 1973;

October 22 to November 5, 1973, after signing a Capsule Therapy Contract dated October 18, 1973;

December 17 to 30, 1973;

February 1 to 3, 1974;

August 8, 1975; and

For an indiscernible period in March, 1976 after signing a Capsule Therapy Contract dated February 26, 1976.

[231] Mr. Belec testified that the Capsule experience was highly uncomfortable due to crowding, lack of hygiene, poor climate control, a strictly liquid diet, and the 24-hour lighting. He also indicated that it was a demeaning because of the forced nudity:

The whole experience was demeaning as well as many other – other situations. I mean, the – the idea was to – to lower your inhibitions and strip you, you know, literally and figuratively, of – of your defences, right? And – and you could see the transition. When you first go in, you know, everybody’s got their legs crossed, and they’re protecting their privates, you know, because it’s not a natural thing to be exposed like that, you know, especially with men that have questionable backgrounds, you know?

[232] It was Mr. Belec’s evidence that the MAPP was a punitive program and that he was coerced into participating in the Capsule and DDT programs. He only “volunteered” because he was goaded to do so, to use Dr. Barker’s word. That is, he was convinced by the Doctors that he would derive some benefit in the form of an eventual release from custody.

Q. And so, the same thing I was coming to with DDT, did you have any ability to say, ‘No,’ to those...

A. Well...

Q. ...drug programs that you were subjected to?

A. Free choice was – was a myth because what – what they would – would tell you is, ‘You can refuse, but you’ll never get out,’ you know? So, you know, it’s – it’s kinda being coerced, like...

Q. And in terms of the Capsule – you’re in the Capsule 10 times, and you described the...Capsule. Why - why did you volunteer... to go to the – or did you volunteer to go to the Capsule?

A. I – I did volunteer, and I did that on trust of what I was told the benefits would be. And also, I wanted to be looked on as, you know, a champion of – the motivating – or the – you know, the – at the front line of this, you know, breaking therapy, you know?

[233] Mr. Belec’s Treatment Records from Oak Ridge record the following DDT treatments:

Dexedrine on June 12, 1972, ordered by Dr. Barker;

Dexamyl on June 21, 1972, ordered by Dr. Barker;

Dexamyl every day from October 13, 1972 to November 5, 1972, ordered by Dr. Maier;

Dexamyl-Tofranil every day from November 6, 1972 to November 24, 1972, ordered by Dr. Maier;

Dexamyl every day for one week from February 14, 1973, ordered by Dr. Maier;

Dexamyl every day for seven weeks from February 21, 1973, ordered by Dr. Maier;

Scopolamine every day for two weeks from June 5, 1973, ordered by Dr. Maier;

Tofranil for three weeks from September 26, 1973, ordered by Dr. Maier;

Dexamyl-Tofranil for seven weeks from November 2, 1973, ordered by Dr. Maier;

Dexedrine 15 mg with LSD 275 mcg on January 2, 1974, ordered by Dr. Maier;

One Dexamyl spansule on March 12, 1974, ordered by Dr. Maier;

Sodium Amytal with Methedrine on March 13, 1974, ordered by Dr. Maier;

One Dexedrine spansule on March 13, 1974, ordered by Dr. Maier;

Dexamyl for seven weeks from February 11, 1975, ordered by Dr. Maier;

Sodium Amytal with Ritalin on April 17 and 18, 1975, ordered by Dr. Maier;

Dexedrine 15 mg with LSD 300 mcg on August 8, 1975, ordered by Dr. Maier;

Dexedrine on September 8, 1975, ordered by Dr. Maier;

Sodium Amytal with Ritalin on January 14, 23, 26, 28, and 30, 1976, ordered by Dr. Maier;

Sodium Amytal with Ritalin on February 5 and 19, 1976, ordered by Dr. Maier;

Tofranil daily from March 20 to April 6, 1976, ordered by Dr. Maier;

Scopolamine with Ritalin on three nights per week for three weeks from June 1, 1976, ordered by Dr. Maier; and

Alcohol treatment on July 22, 1976, ordered by Dr. Maier.

[234] Mr. Belec testified that after the first LSD treatment he was “more confused than ever”, having experienced “inner turmoil” in which his mind was “conflicted between good and evil”. He also testified that he fell into a depression following his second LSD treatment, and in his affidavit deposed that as a result of the LSD sessions he began feeling “electric sensations in my body all the time.” Mr. Belec further explained that his depression occurred as the effects of the LSD wore off because he was “looking for answers and all I got was kind of a nihilistic response to everything.”

[235] Mr. Belec testified that he underwent a 6-month preparation period for his combined LSD and Capsule treatment, and that this was necessary because he feared taking this drug:

But there’s also – the literature that’s provided for you is on eastern religion. I think there was some – some stuff on Huxley and - and people that were familiar with LSD. So, they – they did provide a – some information because I was a little reluctant to even take LSD ‘cause I had heard horror stories about LSD.

[236] Mr. Belec acknowledged that the LSD treatment was “voluntary”, and that he had vacillated between wanting to go through with it and not wanting to do so. With Dr. Maier’s encouragement, he eventually decided that he wanted to proceed with the LSD:

Q. Doctor Maier in fact told you that LSD was voluntary to take, correct?

A. Right. Although as I expressed this morning, I did have some reluctance and, you know, with some gentle coaxing and encouragement, encouraging me to actually go through with having the – the LSD.

[237] On cross-examination Mr. Belec agreed that his condition eventually began to improve while on the STU, although he did not attribute this improvement to the impugned programs. Indeed, quite the contrary:

Q. Now, at this point, Mr. Belec, you’re on G-ward and eventually you did make some considerable progress while you were on G-ward, correct?

A. Correct.

Q. And to use your words at your examination for discovery in this case, you ‘thrived on G-ward’, right?

A. I thrived on G-ward?

Q. Yes.

A. Yes. Once I got off the medication that they put me on, yes, Largactil and Stelazine, once I got off that.

Q. Once you got off that, you did thrive?

A. Right.

[238] According to his Discharge Summary dated February 6, 1979, Mr. Belec was released from Oak Ridge and sent to Brockville Psychiatric Hospital. His discharged was based on the Penetanguishene administration’s opinion that he no longer required a maximum-security institutional setting.

iii) Post-Oak Ridge experience

[239] In Mr. Belec’s affidavit, he described continuing to feel the LSD sensations years after his discharge from Oak Ridge. Indeed, he described the sensations he felt his immediate post-Oak Ridge years rather vividly:

From September 1979 to June 1983, I was in Millhaven Correctional, where I was diagnosed with Paranoid Schizophrenia. From June 1983 to November 1983, I was in Joyceville Institution. I told a psychiatrist there, Dr. Carpenter, that I felt electric sensations in my body all the time, and that these and other symptoms were worsened by the earlier drug treatments at Oakridge. I would lose control of my body and that would cause me to act violently.

[240] Four months after he was transferred to Brockville, Mr. Belec stabbed a fellow patient with a pair of scissors. A Clinical Note dated June 4, 1979 indicates that Mr. Belec reported that he had been thinking about killing someone for the past several months, even before leaving Penetanguishene. As with his index offense in 1972, the Clinical Note maintains that, “These thoughts of violence were directed consistently towards males with no family attachments who were judged, by Mr. Belec’s standards, to be essentially worthless.”

[241] He was charged with attempted murder and following a guilty plea was sentenced to life in prison. Mr. Belec testified that he did not want to pursue what was then called an insanity defence because he did not want to return to Oak Ridge. He told an Advisory Review Board in June 1979 thatat Oak Ridge he “was driven psychotic through drug therapy and other things.” As Mr. Belec put it in responding to questions from the Board, “Millhaven is better for me. It’s the lesser of two evils, isn’t it?”

[242] Mr. Belec was transferred back to Penetanguishene in June 1972, where he stayed until August 1986 when he was sent to the Joyceville Correctional Institute, only to be re-admitted to Oak Ridge in September 1989. In an Ontario Review Board decision dated April 2, 1992, Mr. Belec was described as a dangerous person: “while there was no evidence of delusional thinking there could be no doubt that Mr. Belec is seriously disturbed individual with considerable potential for dangerous and unpredictable behaviour”: Re Belec, File No. 4594-233/92, p. 6 (Ont Rev Bd).

[243] The Review Board related that in 1990, he was convicted of forcible confinement and aggravated assault of a female member of staff who he had taken hostage with a sharpened metal pipe. In explaining his actions, Mr. Belec sated that he had taken the hostage in order to compel the Lieutenant-Governor “to issue a letter promising not to release any more pedophilic sex offenders from Oak Ridge”: Ibid., p. 5.

[244] Mr. Belec deposed that he was again released from Oak Ridge on July 6, 2009 and admitted to the Ontario Shores Centre for Mental Health Sciences. In an Ontario Review Board decision dated May 15, 2015, Mr. Belec described as having made significant therapeutic progress and would have been ready for full release into the community; however, in March 2015, while Mr. Belec was on a day pass from the institution, a staff cleaner found in his room a twelve inch chef’s knife taped to a metal portion of the bed frame.

[245] Also found in Mr. Belec’s room at Ontario Shores was a 4-inch razor blade, several months’ worth of the antidepressant Citalopram which Mr. Belec had been hoarding instead of regularly taking, a pair of pliers, some crazy glue and sewing needles and yarn: Re Belec, 2015 CarswellOnt 9350, at paras 8-9 (Ont Rev Bd). The Board found him to be a manipulative person, with “a personality disorder that includes psychopathic traits, antisocial traits and narcissistic traits”: Ibid., at para 24.

[246] In cross-examination at the trial herein, Mr. Belec agreed that he had trained himself to be a “people pleaser”, presenting whatever face he intuited that they wanted to see. As he put it:

[T]he persona that I present is usually to keep myself safe from – from other people, and this was a result of all the treatments that I had at Oakridge that I no longer viewed the world as a safe place and - and so therefore, I had to create this - this persona that would - would appease everybody around me...

[247] Needless to say, it is not easy to tell whether this statement itself is but one more example of the “people pleasing” personality that Mr. Belec has donned. In any case, a letter from his criminal defence counsel that is in the trial record indicates that Mr. Belec “entered a plea of guilty to Possession of a Weapon for Purpose Dangerous to the Public Peace on Wednesday, July 15, 2015.”

[248] Mr. Be