Court File and Parties

COURT FILE NO.: 00-CV-199551 DATE: 2020-11-30 SUPERIOR COURT OF JUSTICE - ONTARIO

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

– AND –

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

BEFORE: E.M. Morgan J.

COUNSEL: Joel Rochon, for the Plaintiffs Meghan Bridges, for the Defendants, Elliot Thompson Barker and Gary J. Maier Ann Christian-Brown, for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: November 27 and 30, 2020

ADMISSIBILITY OF PLAINTIFF’S THERAPIST AS EXPERT WITNESS

[1] The Plaintiffs seek to qualify Dr. Sharon Williams as an expert witness in the damages phase of this trial, giving evidence on forensic psychology and, in particular, on the Plaintiff, Alan McMann’s, stability, employment trajectory, and income earning capacity. In the first, liability/causation phase of the trial, I found the Defendants liable for having caused harm in one degree or another to each of the Plaintiffs, including Mr. McMann.

[2] Dr. Williams has been a professional psychologist since the 1970s, carrying on both a forensic and a clinical practice. In her 1979 doctoral dissertation she developed a sex offender therapeutic program which, since the mid-1990s, has been implemented across Canada as a leading program for such offenders. She has written and lectured extensively on intervention for high risk sex offenders, and has engaged in training for parole board members, correctional investigators, and judges with respect to sex offenders and predicting whether they would re-offend. In 1990 she was appointed chief psychologist of Kingston Penitentiary, and has served as chief psychologist for Corrections Canada creating national standards for treatment of sex offenders.

[3] The Defendants move to exclude the testimony of Dr. Williams and her expert Report dated October 8, 2020 (the “Williams Report”). They concede that she has the qualifications to appear as an expert witness in forensic psychology. However, Defendants’ counsel contend that Dr. Williams cannot provide impartial, unbiased opinion evidence with respect to Mr. McMann due to her long-term treatment relationship with him. It is their view that Dr. Williams is neither fair nor objective when it comes to Mr. McMann, but rather has become his champion whose opinions change from one report to another depending on the intended audience.

[4] Defendants’ counsel do acknowledge that “the court may permit a treating clinician who complies with Rule 53.03 to provide evidence extending beyond the bounds permitted for opinion evidence of a participant expert: Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888, at para 76. They submit that in this instance, however, the court’s gatekeeping function is triggered by Dr. Williams’ therapeutic relationship with her patient and her consequent interest in having the court find that her analysis of Mr. McMann’s psychological condition is correct.

[5] Following a childhood of abuse at home and poor conduct at school, including a series of thefts, fights and destructive behaviour, Mr. McMann was admitted to the Oak Ridge Division of Penetanguishene Mental Health Centre on September 29, 1975. He was 16 years old and had a grade 8 education. His Discharge Summary from Penetanguishene dated January 26, 1978 indicates that the Defendant, Dr. Gary Maier, diagnosed Mr. McMann with “Personality Disorder with Anti-Social Features” on his release and prescribed no medication or further treatment. Having no other employable skills, Mr. McMann, then nearly 19 years old, became a male prostitute.

[6] Dr. Williams treated Mr. McMann from 1987-1990 in her capacity as head of the Sex Offender Program at the Regional Treatment Centre (Ontario). After his discharge from that Centre in 1990, she treated him again on a one-on-one basis, meeting or speaking with him monthly from 1995 through 1996. She has not treated Mr. McMann since 1996, although she has subsequently spoken with him occasionally on the telephone when he has called her. Dr. Williams testified that the last time she spoke with Mr. McMann was in 2000.

[7] The focus of Dr. Williams’ therapy with Mr. McMann was, according to her Report, “behavioural determinants of sexual offending and how to manage them.” She indicates that the sessions for the most part “examined ongoing issues and how to resolve them.” Accordingly, the focus of her therapeutic relationship was forward looking, and only tangentially delved into the sources or root causes of Mr. McMann’s psychological problems.

[8] In addition to the Williams Report, there are two previous expert reports prepared by Dr. Williams with respect to Mr. McMann in the motion record. One of these is an unsigned report dated 2011 (the “2011 Report”) that was apparently commissioned by Plaintiffs’ counsel but has never been submitted in any court proceeding. Dr. Williams and Plaintiffs’ counsel refer to this as a draft report which ultimately was never finalized or used but was produced to the Defendants during the discovery phase of this case.

[9] The other report by Dr. Williams that is in the evidence, but not actually at issue in this mid-trial motion, is a report dated August 31, 2020 (the “August 2020 Report”). That Report was, along with reports by two other experts proposed by the Plaintiffs, excluded by me in a previous ruling as being too repetitive of issues already covered in the first (liability and causation) phase of this trial: Barker v. Barker, 2020 ONSC 5824. The Williams Report at issue now is a revised version of the August 2020 Report. It is focused more narrowly on Mr. McMann’s employment trajectory and income earning ability. I had indicated in my ruling that excluded the August 2020 Report that Dr. Williams and the other two expert witnesses whose reports were being excluded were at liberty to submit revised and re-focused reports.

[10] Counsel for the Doctors has spent considerable time in cross-examining Dr. Williams on certain differences between the Williams Report, Dr. Williams’ notes and assessments of Mr. McMann contemporaneous with her treatment of him, and the two earlier expert Reports. In doing so, they have sought to illustrate that Dr. Williams has revised and re-crafted her opinions about Mr. McMann to suit the ends that each report or set of notes seeks to achieve. It is their view that the changes over time – and, in particular, the current emphasis on Mr. McMann’s experiences at Oak Ridge, which was lacking in earlier analyses by Dr. Williams – reveal a lack of objectivity and reliability in any opinion evidence that she might give in respect of his employability and employment trajectory.

[11] Of particular interest, the Doctors’ counsel notes that in her treatment records of 1987 and 1990, Dr. Williams attributes most of his psychological issues, including difficulties with self-esteem and in forming relationships, to his early experiences with poor parental guidance. Those notes emphasized the damaging and formative impact of the abuse he suffered from his father and the incestuous sexual relationship he had with his aunt. Although the notes do indicate that Dr. Williams was aware that Mr. McMann had spent time as a patient at Penetanguishene, this does not play a major, or, indeed, any role in her 1980s assessment of his ongoing problems, and is cursorily mentioned in her notes of the 1990s therapy sessions.

[12] By contrast in the current Williams Report, the problems suffered by Mr. McMann later in life are for the most part attributed back to the traumas he suffered at Oak Ridge. She now states, for example, that although his history of abuse as a child might have caused him to require some treatment in order for him to reintegrate into society and form personal relationships, his failure to do so cannot be explained by this alone as the damage that this early experience of abuse was “not comparatively severe”. Likewise, in terms of his later drift into substance abuse, she opines in the Williams Report that his adolescent problems at home “showed evidence of the need for intervention, [but] they did not, on their own, explain a life fraught with drug use.”

[13] The Doctors’ counsel submit that this change in opinion demonstrates that Dr. Williams has, over time, become Mr. McMann’s advocate. They go on to state that while that may indeed be commendable as a loyal therapist to whom he has periodically returned over the decades, it disqualifies her as an expert witness under Rule 53 of the Rules of Civil Procedure. That Rule requires a level of objectivity which, the Doctors’ counsel argue, Dr. Williams simply cannot meet. In their written and oral submissions, they point out that the Williams Report does not even attempt to reconcile or explain the differences between her current and her earlier opinions.

[14] Dr. Williams did, however, put forward the sought-for explanation in answer to questions in cross-examination. In explaining herself during the course of the voir dire, Dr. Williams revealed that although in the 1980s and 90s she was aware that Mr. McMann had been at Penetanguishene, she had never seen any documentary records from his treatment there. He had told her some of his experiences at Oak Ridge which, she conceded, sounded very dramatic and if true would have had a serious impact on him, but she said frankly that she did not know whether to believe him at the time. She explained that his experiences there, including drug therapy and the remotivational/punitive MAP program, sounded so outlandish and shocking that it would have been irresponsible of her to simply take them at face value.

[15] In her testimony, Dr. Williams explained that it was when she was asked to write the 2011 Report that she had the opportunity to see for the first time the clinical records from Mr. McMann’s stay at Oak Ridge in the 1970s. Plaintiffs’ counsel characterize the full revelation of the Penetanguishene records in 2011 as an “OMG” moment for Dr. Williams. It was therefore in the 2011 Report that her understanding of Mr. McMann’s background truly came together and she was able to comment on what she found in the Penetanguishene file and the impact that his time at Oak Ridge may have had on him.

[16] It is Dr. Williams’ view now, and has been since 2011, that the extreme nature of the programs that Mr. McMann experienced in the Oak Ridge Division of Penetanguishene help explain his subsequent psychological challenges with respect to self-esteem, sexuality, and stability. His problems in those respects were difficult to understand prior to her reading these records, and so she had assumed that his childhood experiences were the only likely cause. The reality of Oak Ridge as revealed in the clinical records changed her view of why Mr. McMann has suffered an unstable life in the decades thereafter.

[17] I do not agree with the Defendants’ submission that the changes in Dr. Williams’ understanding of Mr. McMann over time reveal a lack of objectivity or an exercise in advocacy on her part. In my view, Dr. Williams was credible in the explanation that she gave. It is not surprising that one would be skeptical of the tales told by an involuntary patient at Penetanguishene, especially if they involved tortuous punishments in MAPP, or the bizarre coupling of a young teenager with hardened criminals and sexual predators in an isolation Capsule, such as Mr. McMann experienced: see Barker v. Barker, 2020 ONSC 943-954. In fact, as Plaintiffs’ counsel observe, her very skepticism of her patient’s outlandish tales of treatment by an otherwise reputable institution and its medical staff can be taken as a mark of her professionalism, and a sign that she is anything but too close to her patient to evaluate him objectively.

[18] Without some documentary evidence, it would be difficult to believe, for example, that Mr. McMann passed his 17th birthday in a physician-designed and institutionally supervised Capsule with a convicted underworld murderer several decades older than him, who made the young Mr. McMann spend time masturbating him in a corner. And without reading the clinical records, it would be equally difficult to believe that that horrific incident resulted in sympathetic treatment for the aggressive older man, who was said to have “complex feelings” for Mr. McMann, and in further punishment for the teenage Mr. McMann, who was said to have somehow taken advantage of the hardened criminal with whom he was paired. And yet the Oak Ridge clinical records show that to have been part of the “therapy” that Mr. McMann received: Ibid., at para 952. Once that kind of experience was shown to Dr. Williams to have actually occurred, it almost had to change her view of the factors that contributed to Mr. McMann’s subsequent instability.

[19] I note that Dr. Williams was firm in her view that she is a trained and objective therapist, and not an emotionally attached advocate for her patients. She related that she has on a number of occasions given evidence on behalf of the Crown where it was adversarial to her own patient, and that her approach is to be analytic and truthful. She certainly gives the impression that she fully understands the requirements of Rule 53 and adheres to them to the best of her ability.

[20] I also note that Mr. McMann himself gave evidence on this point, both at the liability/causation stage of the trial and at the present damages stage. At the liability stage, Mr. McMann testified as to how and why he re-connected with Dr. Williams in the mid-1990s, stating that he phone her up and “basically begged her to come back to Kingston for treatment, because she was the only person I knew that I could…talk to and get myself out of that mess that I had gotten myself into.”

[21] In cross-examination during the damages phase, the Doctors’ counsel sought to follow up on this thought, and asked him whether he kept returning to Dr. Williams over the years because he felt she was on his side and that she “had his back”. Mr. McMann pointedly rejected that characterization. Instead, he described his view of Dr. Williams as a consummate professional to whom he returned not because of her personal loyalty but because of her effective therapeutic approach.

[22] It is now well established that a party tendering expert opinion evidence must establish the admissibility criteria of relevance, necessity, absence of an exclusionary rule, and a qualified expert: R. v. Mohan, [1994] SCR 9, 47. As Cromwell J. put it in White Burgess Langille Inman v. Abbot and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, at para 32:

The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her… These concepts, of course, must be applied to the realities of adversary litigation. Experts are generally retained, instructed and paid by one of the adversaries. These facts alone do not undermine the expert’s independence, impartiality and freedom from bias. [citations omitted]

[23] Dr. Williams’ opinion did not change or was not modified because of who retained her or the purpose of the various retainers. Rather, it changed, for entirely understandable reasons, because of a change in the scope of her knowledge of what Mr. McMann had experienced. There is nothing about that change that suggests “a realistic concern that the expert’s evidence should not be received because the expert is unable/unwilling to comply with that [Rule 53] duty”: Ibid., at para 48.

[24] In Hossny v. Belair Insurance Company Inc., 2011 ONSC 6440, at para 9, the court observed that, “Indeed, treating doctors may well have greater depth of knowledge and be better able to assist the court than experts who have been retained only to provide opinion evidence.” In Plaintiffs’ counsel submission, Dr. Williams’ Report and testimony provide the best of these combined functions. She has acquired over the years an in-depth knowledge of Mr. McMann’s psychological history and trajectory, and still maintains the objectivity of an experienced professional to effectively assist the court in its deliberations over Mr. McMann’s damages claim. Although Defendants’ counsel take issue with the advantages of this dual capacity in which Dr. Williams appears, there is merit to Plaintiffs’ counsel’s view.

[25] It is noteworthy that although Dr. Williams has been a therapist for Mr. McMann since the 1980s, she has never seen him consistently for a particularly intensive or lengthy period of time. The evidence establishes that Mr. McMann called her in the mid-1990s because she had been an effective therapist for him and because, in addition, he was suffering financially and at the time and Dr. Williams was willing to see him once a month on a pro bono basis. Again, Defendants’ counsel take this as a sign of special attachment.

[26] In my view, a psychologist’s rendering of pro bono services to a patient is no more a badge of a ‘too close’ relationship than a lawyer’s rendering of pro bono services to a client would be a badge of unprofessionalism; quite the contrary. Similarly, a patient’s feeling that a therapist is the only one he can trust is no more a sign of the therapist’s unusually close relationship with him than would be a client’s comment that his lawyer of choice is the only one with whom he can work. Those comments are commendable for the professional, and that is all one can draw from them.

[27] Dr. Williams was the head of a program in which Mr. McMann participated for three years in the late 1980s. After beginning this program, Mr. McMann was moved out of group therapy and was placed in individual therapy. In her notes dated May 30, 1988, Dr. Williams recorded her thoughts with respect to Mr. McMann’s inability to handle group therapy, indicating that, “[l]ooseness in thinking, poor attention span and difficulty in processing information which caused me to suspect some degree of thought disorder.” She did not, however, speculate as to the origin of that disorder. Now, some 32 years latter, she is willing to opine that this was a result of his then still relatively recent Penetanguishene experiences. That, again, reflects a change in the information at her disposal and not a manipulative or advocacy-oriented change.

[28] As indicated, Dr. Williams was also Mr. McMann’s one-on-one therapist for about a year and a half of once-a-month meetings in the mid-1990s, but has never seen him again since those sessions ended in 1996. The last time she has even spoken with him on the telephone is now 20 years ago. There is no indication that this lengthy, on-and-off history of contact has made Dr. Williams, now over 40 years into her career as a psychologist, somehow so attached to this one patient that she has lost her professional objectivity toward him.

[29] The Defendants’ motion to disqualify Dr. Williams is therefore dismissed. She is hereby qualified to give evidence at this trial as an expert in forensic psychology, with particular attention to Mr. McMann and his income earning, stability, and employment trajectory.

Morgan J.

Date: November 30, 2020