The suggestion of a nominal payout of $100 and the arguments behind it for some of the patients forced to take high doses of drugs and be subjected to experimental treatment are “perverse, obscene and manifestly unjust, given your findings,” the patients’ lawyer told the Ontario Superior Court in closing remarks Friday.
“To suggest $100 for somebody that was treated this way, a young man, with what happened is completely inappropriate and completely wrong,” said Peter Jervis, who represents 28 patients who the court earlier found were subjected to a treatment regime at the maximum-security Oak Ridge division of the Penetanguishene Mental Health Centre, now called Waypoint Centre for Mental Health Care.
Last June, Justice Edward M. Morgan of the Ontario Superior Court determined two psychiatrists and the provincial Crown were liable for using pain as an instrument between 1966 and 1983. He found they gave high doses of hallucinogens and mind-altering drugs, including LSD and alcohol, as the cornerstone of one program they called defence disruptive therapy, or DDT.
In a self-contained unit housed within Oak Ridge called the Social Therapy Unit, or STU, patients would be locked in a “capsule” for extended periods of time for group encounters. Some were strapped to other patients while naked.
Another program employed an overly strict physical disciplinary regime.
Lawyer Sam Rogers, who is representing Dr. Elliot Thompson Barker and Dr. Gary J. Maier, argued at the end of the three-week damages hearing that the court should not award the $71- to $75-million total to which lawyers say the patients are entitled.
Even the most horrific sexual abuse cases have resulted in only a fraction of those damages, said Rogers.
“We are really talking about the most horrific cases of sexual abuse that you can imagine,” he said, adding that the general damages awarded was $400,000, “about 60 per cent of what the plaintiffs seek for Mr. (Reginald) Barker and in some cases 10 per cent of what they seek on behalf of some of their clients.
“For some of the plaintiffs, they seek general damages of over $4 million, so 10 times greater than the general damages awarded last year for one of the worst cases of sexual abuse of a minor, a five-year-old, in Canadian history,” said Rogers.
Barker, who died last April at the Providence Care Centre in Kingston, displayed sexual aggression and related in a psychological evaluation he tried to rape a 77-year-old woman at knife-point. While in the Don Jail, he reported hearing voices telling him to murder.
On Feb. 20, 1968, Barker killed a woman at work and was sent to Oak Ridge the following month on a warrant of the lieutenant governor, spending 10 years there. He participated in the experimental treatments involving LSD sessions and was placed naked on a rubber floor with other patients in an enclosed space they called the capsule.
Lawyers for the Oak Ridge patients are asking the court to award Barker $750,000 in general damages.
On behalf of the doctors, Rogers said the law doesn’t currently distinguish between psychological and physical harm.
“If you suffer a complete disability due to psychiatric harm, you are entitled to just as much damage as someone who suffers a complete physical disability. The difference is that these plaintiffs did not suffer a complete disability due to psychiatric harm. None of these plaintiffs did,” Rogers told the court.
A complete disability, he said, would relate to someone who relies entirely upon others for their activities for their daily living. In mental impairments, that could involve brain damage.
“You can suffer a complete disability due to psychiatric harm,” he said. “That’s not what happened to the plaintiffs in this case. They suffered serious psychological sequelae including PTSD, anxiety, fear of therapists.”
And while what happened to the Oak Ridge patients was harmful, he said, it prevented none of them from walking or going to the bathroom and they didn't require 24-hour nursing care.
He pointed to a recent case upheld by the Supreme Court of Canada in which the plaintiff suffered “serious psychological harm” and was awarded $100,000.
He added there is no case that comes close to the $28.8 million in punitive damages being sought by the Oak Ridge patients, in addition to damages for income loss because of the experiences, as well as compensatory damages.
Additionally, he said the doctors received no benefit from running the programs, other than publishing papers aggrandizing the programs they developed.
The judge said he would reserve his decision on damages and didn’t say when he would deliver his decision.
