Barker v. Barker, 2020 ONSC 7447

COURT FILE NO.: 00-CV-199551

DATE: 20201203

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: Peter Jervis, for the Plaintiffs William Black, for the Defendants, Elliot Thompson Barker and Gary J. Maier Sara Blake, for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: December 1 and 2, 2020

MOTION TO DISQUALIFY EXPERT WITNESS ALREADY QUALIFIED AT TRIAL

1The Defendants bring this mid-trial motion objecting to the qualification of Dr. John Bradford as an expert witness on damages and challenging the admissibility of Dr. Bradford’s damages report dated October 10, 2020 along with his Reply Report dated November 16, 2020 (together the “Bradford Report”).

2Dr. Bradford was already qualified as an expert witness in forensic psychiatry in the first phase of the trial. I referenced his evidence on liability and causation issues numerous times in my judgment in respect of those issues: Barker v. Barker, 2020 ONSC 3746 (the “First Phase Judgment”). Since the two phases were separated for scheduling purposes but are both part and parcel of the same trial, Dr. Bradford is an expert witness in this trial already. All parties acknowledge that he is highly qualified and is one of Canada’s leading experts in his field.

3The Defendants now seek to de-qualify Dr. Bradford for the purposes of the second phase of the trial – i.e. the damages phase. Their objection is not based on doubts about his credentials or his expertise, but rather on the content of the Bradford Report.

4It is the Defendants’ submission that the Bradford Report exhibits three problems, each of which makes it inadmissible and should disqualify Dr. Bradford as an expert: (a) non-compliance with the terms for expert evidence in the damages phase of the trial as set out in my decision in Barker v. Barker, 2020 ONSC 5824 (the “Admissibility Motion”), (b) absent the parts inadmissible under heading (a) above, the content of the Bradford Report does not contain any expert evidence, and (c) Dr. Bradford exhibits bias in the report at issue here.

5In making these submissions, counsel for the Defendants has drawn my attention to R v JL, 2000 SCC 51, [2000] 2 SCR 600. In that case, the Supreme Court of Canada emphasized that the trial court’s function in ensuring that expert evidence is properly qualified is an ongoing one. As Binnie J. put it, at 613, “the trial judge should take seriously the role of ‘gatekeeper’. The admissibility of the expert evidence should be scrutinized at the time it is proffered and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility.” Accordingly, “when the trial judge recognizes the acute risk to trial fairness, she must take action”: Bruff-Murphy v Gunawardena, 2017 ONCA 502, at para 63.

6I will not repeat all of the principles of admissibility elaborated on in the Admissibility Motion. They continue to govern the expert evidence adduced by all parties in this phase of the trial, and are necessary for the purposes of coordinating and managing a trial of this complexity which is being heard in two phases. For convenience, however, I will repeat the portion of the judgment that formed the core of those principles, at paras 21-22:

[21] What is admissible in the second phase of the trial is expert evidence of what the Plaintiffs’ hypothetical lives might have been but for their Oak Ridge experiences. This would most helpfully be done with particular focus on the economic aspect of their lives – i.e. what kind of job or career might they have had, how long would they likely have been institutionalized had it not been for Oak Ridge, what would have been their expected timeline with respect to their earning capacity, etc. As Defendants’ counsel put it, the damages phase of the trial requires experts to opine on the ‘alternate universe’ of economic opportunity that would have presented itself to each Plaintiff but for their Oak Ridge experience.

[22] This evidence must be presented without repeating or supplementing the causation evidence, and without being based on new types of injury that I did not find in my first phase judgment.

7The Bradford Report considers two damages issues: (1) the timeline of the Plaintiffs in terms of their institutionalization and employability, and (2) the impact of the impugned programs in which they participated while in the Oak Ridge Division of Penetanguishene Mental Health Centre in the 1960s through early 1980s. The fact is, however, that these two are so closely related as to raise one and the same question: how did the harms that I found in the First Phase Judgment impact on the employment trajectory or income earning ability of the individual Plaintiffs?

8This question is analyzed by Dr. Bradford and applied to the facts as found with respect to five of the Plaintiffs: Eldon Hardy, Douglas McCaul, Michael Pinet, Shauna Taylor, and Dennis LePage. Dr. Bradford was familiar with their medical histories and files and, in fact, had treated or evaluated four of these five individuals in the past – Dennis LePage was the only one of the five who had not been his patient. Counsel for the Defendants concede that treating physicians can provide expert evidence to the court and are often in a position to offer valuable firsthand observations concerning a patient’s condition. They submit, however, that a doctor with that kind of prior relationship with a patient can have his or her objectivity become questionable if they are too close to one of the parties or the issues in the litigation: Gutbir v University Health Network, 2010 ONSC 6394.

9Parts of the Bradford Report narrative tend to spill over into causes of harm that I did not consider or find pertinent in my First Phase Judgment, which has prompted much of the Defendants’ current challenge. However, for the most part, those are narrative detours that are not germaine to the opinion expressed by Dr. Bradford on the timeline/employability question.

10For example, at para 75 of the Bradford Report, it is noted that Mr. LePage’s medical records indicate that he possibly suffered from hyperthyroidism at time of his index offence. This was not an issue that I addressed in my First Phase Judgment, and it plays no part in my findings with respect to the harm suffered by Mr. LePage at Oak Ridge. Dr. Bradford explained in his testimony that he included this is in the report as an observation and as part of the background narrative with respect to Mr. LePage, but that it does not form part of his opinion and is not identified by him as a cause of harm.

11To the extent that there are sentences like this that veer into facts and causes of harm not identified in the First Phase Judgment, I will consider them to be drafting issues in the narrative. The solution is to disregard them and not consider them to be part of the evidence. These are stray observations that are not necessary to the Bradford Report and do not change its essence if disregarded.

12In much the same way, Dr. Bradford in a few sporadic sentences strays from his area of expertise as a forensic psychiatrist, and comments on the type of jobs that the Plaintiffs might have gotten had they been released into the community earlier. He says, for example, that Mr. LePage may have continued the carpentry career that he had started as an apprentice prior to entering Oak Ridge in 1978, and that Ms. Taylor may have pursued the interest in theatrical set construction that she had had prior to her being sent to Oak Ridge in 1976. These comments are clearly unrelated to Dr. Bradford’s training and experience; he does not profess to know what it takes to become a carpenter or how feasible it is to find work as a theatre stage technician.

13As will be discussed below, the primary purpose of the Bradford Report in the damages phase of the trial is to put a time frame on the extent to which the Oak Ridge programs that caused the Plaintiffs harm extended their institutionalization time. This

14impacts on the employment trajectory of the Plaintiffs since the longer they were in a secured mental institution the shorter time they had to be re-trained or gainfully employed.

15As I believe is obvious, an experienced forensic psychiatrist may well opine with authority as to how much longer a damaging course of therapy caused a person to remain institutionalized as opposed to if they had not undergone the damaging therapy. That same forensic psychiatrist will not be able to say with any authority what, exactly, that person would have done with the extra time in the community. To the extent that Dr. Bradford strays into the content of the work that a Plaintiff might have done, as opposed to the time that the Plaintiff may have had available to work and his or her psychiatric preparedness for work, those comments will be disregarded. They appear in no more than two or three sentences in the entire Bradford Report and their removal will in no way detract from the cogency or coherence of the report.

16It is not particularly surprising that Dr. Bradford treated or evaluated four of the five Plaintiffs he discusses in his report. As a leading forensic psychiatrist in Ontario, he has forensically treated and evaluated for the Ontario Review Board many hundreds of patients, including 12 of the 28 Plaintiffs in this action. As he explained in his voir dire testimony, a forensic psychiatrist is required to be objective, and is not an advocate for or against the patient. When testifying or reporting to the Review Board with respect to these patients, he is to give his view as to what is the least onerous and least restrictive conditions for the upcoming year. Although that may sometimes have the appearance of advocating the patient’s cause, it is, as Dr. Bradford testified, a requirement of the case law and is not an advocacy function.

17In alleging bias as a reason for opposing the admission of the Bradford Report into evidence, the Defendants bear the burden of establishing a “realistic concern” that Dr. Bradford is unwilling or unable to comply with his duty of independent objectivity under Rule 53 of the Rules of Civil Procedure: White Burgess Langille Inman v. Abbot and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, at para 48. Conversely, it is for the Plaintiffs in tendering the Bradford Report to rebut this concern on a balance of probabilities in establishing that the test for admissibility in R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9 has been met.

18Much of the Defendants’ bias allegation is premised on identifying discrepancies between Dr. Bradford’s reports to the Ontario Review Board and/or his own medical notes about these Plaintiffs from years past, and his opinions with respect to the five Plaintiffs as expressed in the Bradford Report. Counsel for the defendant Doctors submit that these differences reflect a lack of objectivity and a loss of independence by Dr. Bradford.

19In addition, counsel for the Doctors has gone to some effort to identify for the court an ideological predisposition of Dr. Bradford’s in favour of releasing involuntary psychiatric patients into the community. This posture is said to manifest an inherent bias in favour of the Plaintiffs, which in turn militates away from the independent and objective analysis required of an expert witness: White Burgess, at para 36.

20In my view, neither of these contentions by the Defendants are borne out in the Bradford Report. The discrepancies between Dr. Bradford’s opinions at different times about the same individuals are for the most part explicable with the differing perspectives taken on by the passage of time. In any case, at the most they reflect a weakness in the analysis, and so go to the merits of Dr. Bradford’s evidence and not its admissibility. If a doctor’s view of a patient, or some particular conduct of a patient, varies from one examination to another, the conclusion may be that the doctor got it wrong one time and right the other; but alleging bias or manipulation of the data requires more than just the amending of an opinion or the righting of a previously weak or erroneous analysis.

21The Defendants do not allege that Dr. Bradford has a personal attachment or connection to any of the Plaintiffs that gives rise to the allegation of bias. Rather, they allege that as a matter of medical philosophy, Dr. Bradford favours cascading an institutionalized patient down the ladder of lesser and lesser security precautions on the way to full release into the community.

22An ideological or philosophical predisposition to one approach or another to treatment is not on its own a sign of bias. Psychiatry is a branch of medical science in which the exercise of judgment is a key ingredient. It may be legitimate from a medical philosophy point of view to generally incline either toward treating a patient by institutionalization or treating a patient by release into the community. In much the same way as it is legitimate from a legal philosophy point of view for a lawyer to generally incline either toward increased custodial sentences or for a lawyer to generally prefer alternatives to custody for various offences, neither point of view, expressed intelligently, reflects a form of impermissible bias.

23As for the Defendants’ identification of supposed contradictions expressed by Dr. Bradford at various times in his analysis of the five Plaintiffs, these also fall short of being a badge of bias. By way of illustration, in a report for the Ontario Review Board dated March 19, 2008, Dr. Bradford stated that Mr. McCaul had a severe anti-social personality disorder and was a considerable risk to the public; he further noted that in the 1980s Mr. McCaul had cascaded into lesser security institutions and then into the community, but that this was reversed when he was again charged with an attempted murder in 1987. Counsel for the doctor Defendants submits that Dr. Bradford’s current analysis, which sources Mr. McCaul’s troubles to a treatment impasse or countertransference with Oak Ridge staff, is a new and contradictory assessment and reflects a biased perspective.

24It is Dr. Bradford’s view, however, that Mr. McCaul’s resistance to treatment and to psychiatric staff only manifested after his 1987 re-institutionalization, and that that late manifestation now compels him to analyze the source of the problems. He explained in his response to cross-examination that Mr. McCaul’s progress had been delayed after 1987, but as of 2008 he was ready for a lower security institution with a view to ultimate release into community and that his 2008 report reflected that view while acknowledging Mr. McCaul’s troubled history.

25I do not see Dr. Bradford’s prior reports as being contradictory of his current report. Rather, it appears to me that Dr. Bradford has done what he was compelled to do by my ruling in the Admissibility Motion. That is, his jumping off point in the Bradford Report is my findings in the First Phase Judgment. His terminology of “treatment impasse” and “countertransference” appear to me to be direct extrapolations from my finding that Mr. McCaul was a “lost soul” who could not benefit from the therapy he received [para 904], and that both Drs. Barker and Maier oversaw, were aware of, but did not seem to care about the “therapy of suffering” being inflicted on him [para 902]. In other words, Dr. Bradford may have introduced new more medically-oriented terminology than I used in the First Phase Judgment, but it is my findings with respect to Mr. McCaul’s ongoing problems that are his starting point.

26Dr. Bradford has given a considered and nuanced view of each individual patient each time he has written a report, and has over time either modified or re-articulated his analysis of the person. While it is true that his current report often does not parrot what he said in previous reports, that is more a badge of its objective reliability than a badge of its subjective advocacy on the patient’s behalf. Dr. Bradford may be right or wrong about a particular patient’s trajectory, but that is a matter going to the merits of the Bradford Report. There is, however, no indication of bias in all of this such as would disqualify the reportsand his evidence altogether.

27A similar pattern can be seen with respect to Dr. Bradford’s assessments of Eldon Hardy. In the early 1990s, Dr. Bradford treated Mr. Hardy at the Brockville Mental Health Centre. His notes at the time indicate that Mr. Hardy had serious paranoia and distrust issues, and that his delusions and fears of conspiratorial beliefs stood in the way of his accepting treatment. For this reason, Mr. Hardy was seen as too high a risk to be released into the community. By contrast, in the Bradford Report it is made clear that although Mr. Hardy suffers from a form of pedophilia with a recidivism rate of close to 50%, with treatment he could have cascaded back into the community.

28Again, while the Defendants take this as a reversal and indicator of bias, Dr. Bradford explains this difference in his current view as an acknowledgment of his own difficulties in treating Mr. Hardy two decades ago. Dr. Bradford testified that Mr. Hardy had a built-up mistrust of doctors because of his previous experiences at Oak Ridge, and that he had refused medication. Dr. Bradford attributed this to the difficulties that he himself had in establishing a therapeutic alliance with Mr. Hardy, which was a direct outgrowth of Mr. Hardy’s paranoiac tendencies. Despite these difficulties in treatment that Dr. Bradford experienced first-hand in the 1990s, he remains of the view that with proper medication Mr. Hardy could have achieved some degree of liberty and earned a living.

29Again, Dr. Bradford may or may not be right about this view – there is a school of medical thought that considers persons with Mr. Hardy’s diagnosis to be irredeemably recidivist; but that does not mean that Dr. Bradford’s analysis of Mr. Hardy exhibits a lack of objectivity. What the Bradford Report and Dr. Bradford’s testimony on the voir dire exhibit is a willingness to think about, and then sometimes re-think about, a genuinely difficult and complex patient.

30The evidence with respect to Dr. Bradford’s views over time of Shauna Taylor and her degree of risk to the public is even less indicative of true bias. Here, the allegation is not so much that Dr. Bradford has been inconsistent, but rather that he has over time been all too consistent in his analysis of Ms. Taylor.

31Counsel for the Crown spent considerable time in the voir dire examining Dr. Bradford on the positions he took in a series of Ontario Review Board hearings with respect to Ms. Taylor. Starting in December 2010 and continuing through April 2015, the published decisions of the Review Board relate that Dr. Bradford testified in favour of a series of steps that were supportive of Ms. Taylor addressing the sexual identity issues that had troubled her for many years.

32In cross-examination, Dr. Bradford concurred that he had recommended that she be transferred from the maximum security institution at Penetanguishene to the medium security institution at Brockville, and that later he recommended that she be transferred from Brockville to the Ottawa Royal Hospital in order to have access to a wider support community for post-surgery transgender individuals. He also supported her being on a co-ed ward rather than an all-male ward at Brockville, and supported her freedom to take walks on the hospital grounds, and then in the community, and then to reside in supervised housing in the community.

33I do not see any of the positions taken by Dr. Bradford as indicating that he has lost his objectivity with respect to Ms. Taylor. In providing his opinions to the Review Board, he was obliged to give a professionally detached and objective view in much the same way as he is under Rule 53. As Plaintiffs’ counsel has pointed out, the Review Board decisions clarify that the views Dr. Bradford expressed were for the most part not his alone but the collective assessment of the treatment team he headed at Brockville. They were on several occasions also concurred with by the treating doctors at Penetanguishene.

34Dr. Bradford’s opinions about Ms. Taylor were at times accepted and at times not accepted by the Review Board, as is inevitably the case with a professional who gives expert evidence with some frequency. However, in all of the decisions which counsel for the Crown reviewed, the Board never gave a suggestion that Dr. Bradford was seen as anything less than a credible, objective forensic psychiatrist.

35Defendants’ counsel also complain that the Bradford Report indicates, as it does with Mr. McCaul, that Ms. Taylor suffered from treatment impasse and countertransference, and that these were critical factors in explaining her elongated time in mental institutions. Again, the Defendants state that Dr. Bradford has thereby added new causes that go beyond what I wrote in the First Phase Judgment about causation and the nature of the harms Ms. Taylor suffered. However, I do not read the Bradford Report that way.

36In the First Phase Judgment I did not use the phrase “treatment impasse” with respect to Ms. Taylor. But I did indicate that in Oak Ridge she experienced an “intense emotional maelstrom” from which it took decades to recover [para 1151]. Likewise, I did not reference countertransference as a term of art. But I did indicate that the patient-teacher system at Oak Ridge had been particularly harsh on her and resulted in her being humiliated and stressed by the very people that were supposed to be providing her therapy [para 1150]. In other words, Dr. Bradford took my findings and put them into other words more akin to medical terms of art.

37All of the Defendants’ counsel’s examples of supposed advocacy by Dr. Bradford follow these general patterns. They show that the starting point for the Bradford Report analysis is my own findings in the First Phase Judgment, although not always in so many words. His previous reports turn out to sometimes be right and to sometimes need re-thinking or modification today. Like all professionals, his analysis has not always been infallible. However, none of this is indicative of Dr. Bradford losing his professionalism and becoming an advocate for the Plaintiffs. It is rather indicative of a professional sometimes sticking to his guns regarding his view of a patient and at other times being open to modifying his own views as necessary in dealing with patients with very complex mental health issues.

38The Barker Report does fulfill a function that I was expecting the expert reports to do and that I called for in the Admissibility Motion. That is, Dr. Bradford puts specific numbers of years on the time frame of the Plaintiffs’ extended institutionalization. He generally starts his analysis with my finding that the Oak Ridge programs had the long term result of prolonging their time in mental institutions and shortening their time in the community, and then analyzes this in more depth in order to attribute a specific time frame to that finding.

39Dr. Bradford’s methodology in calculating the impact of the harms that I found on the length of time the Plaintiffs were institutionalized is, in the first instance, a comparative one. He explains in the Bradford Report that he used the National Trajectory Project, a database of 1,800 Canadian NCR cases that analyzes the average length of time individuals spend detained in mental institutions and subject to the decisions of the Review Board. In his Reply Report, Dr. Bradford supplemented this with data from a study by Professor Cyril Greenland of McMaster University which compared the duration of institutionalization of Ontario patients on Warrants of the Lieutenant Governor with their equivalents in New York State. This data provided what Dr. Bradford refers to as “a baseline for my analysis of the extent to which each Plaintiff’s institutionalization was prolonged by the harms found by [the First Phase Judgment].”

40This methodology, when applied and analyzed by someone with Dr. Bradford’s experience with patients like the Plaintiffs, is directly within the terms for the damages phase of the trial as set out in the Admissibility Motion. As expected, it takes my findings and extrapolates a specific time frame from them for each Plaintiff studied. I will consider its merits in my final judgment.

41I find that Dr. Bradford continues to be qualified to give expert opinion evidence as a forensic psychiatrist, and may provide such opinion evidence for the damages phase of the trial. The Bradford Report is admissible into evidence as part of Dr. Bradford’s evidence at trial.

42To the extent that the report contains stray comments that repeat or appear to reconsider findings from the first phase of the trial, or that comment on specific jobs outside of Dr. Bradford’s field of expertise, they are sporadic and do not serve to taint the Bradford Report overall. I will read the report down by disregarding those statements or comments, and will not view them as part of Dr. Bradford’s expert opinions as expressed therein.