Ample Blame to Share on a Wide Scale of Forfeited Responsibility

"There were probably some who died of dehydration. [Efforts of personnel unable to help since they] didn't have time [to do more for the residents]."

"[Personnel shortages resulted in neglect of basic hygiene for residents]."

Occupation therapist, witness, coroner's inquest

 

"I'm tired of hearing people say, 'That wasn't my job'."

Coroner Géhane Kamel, Montreal

 

"Some [care workers] were absent because they were scared, some because they had symptoms."

"They [dementia patients] walk hand in hand. They sleep in people’s beds. And if we try to stop them, you set off behavioural problems like you wouldn’t believe."

"You can’t restrain them. You can’t tie them up."

"It was one of the hardest decisions I had to take with Maude. So we left them there. What it meant is that we were condemning them. Not easy for a manager."

"Most of the 21 contracted COVID-19 but more survived than in other units in the nursing home. It might have been because their wandering kept them in better shape than other seniors who were confined to their rooms during their crisis and slowly declined."

Marie-France Jobin, Supervisor, Sainte-Dorothée, Laval long-term care home

The deaths in CHSLDs in the first wave of the pandemic prompted many questions about how the facilities are run. (Ryan Remiorz/The Canadian Press)

The horribly dismal number of residents of long-term care homes in Canada struck with COVID-19 outbreaks, chronically short of personal care support workers, and unschooled in how to react to the presence of a highly contagious virus, the need to segregate the ill in places where there were multiple occupants of a single room, and instances where patients with dementia had a tendency to wander, led to an unsupportable number of deaths. In the Saint-Dorothee residence alone, one hundred and eight people died in last year's first wave.

The coroner's inquest is an attempt to understand more fully the level of dysfunction and incompetence that led to this disastrous outcome. Most of the witnesses by court order have had their identities protected through a publication ban, presumably leaving them free to speak without fear of retribution. About two-thirds of the facility's employees had logged off sick at the time. The remainder of the employees obviously attempted to do as much as they could, and that cannot have resulted in meeting the most basic needs of the residents.

The therapist who was giving evidence spoke of staff shortages which prevented employees from adequately caring for the seniors, along with the other vulnerable patients living in the home. Many of the residents were barely hydrated and had been given little to eat before they died. One of the residents had developed bedsores, left for hours in incontinence briefs, crying out to be changed. When one of the residents was finally given a bath, she wept in gratitude.

A funeral home worker removes a body from the Verdun CHSLD seniors residence Wednesday April 15, 2020 in Montreal. At the CHSLD Sainte-Dorothée, bodies were left exposed for hours because funeral homes were overwhelmed. (Ryan Remiorz/The Canadian Press)

In desperation, patients were restrained as preventive measures to ensure they were unable to move around freely. One patient with dementia insisted on trying to use the telephone "I had to attach him to his chair because he wanted to talk to his wife", the witness explained. An admission rife with matter for speculation; little wonder a patient whose most basic, routine requirements were being neglected attempted in a desperate cry for help to speak to his wife who would become inconveniently involved questioning staff why her husband's needs were neglected.

Left in their rooms, no exercise or physical therapy on offer affected patients' ability to walk, the therapist testified. She had volunteered to assist at the long-term care home, receiving no training. She had been witness to a director at the home breaking down in front of staff members, screaming and crying in sheer frustration. A second witness, a dietitian, described the institute as a "ship without a captain", so disorganized it might take days for the kitchen staff to be made aware that a patient had died before meals were no longer sent up to the room.

Another patient attendant testified that there had been no direction for the workers who had been left to their own devices on a floor of 34 patients. Among them some had a tendency to wander from their rooms. The night co-ordinator remained in her office advising she had no time to help, during this time. 

 

Two assistant directors at the Laval health authority previously testified that staff at the home were tested for COVID-19 in early April 2020. According to the patient attendant "nobody was aware that there had been testing". The outcome of the situation in the number of deaths at six long-term care homes and one seniors' residence in the province are all under investigation in coroner Gehane Kamel's mandate.

The Centre d'hebergement Sainte-Dorothee is seen Tuesday, April 7, 2020 in Laval, Quebec. THE CANADIAN PRESS/Ryan Remiorz

When Families Dissolve Into Fractured Units of Hatred

"Bryan, I accuse you by this letter of the premeditated attempted murder of a little girl I carry inside me."
"My memories continue to emerge here in Cassis [France]. The peace of the place lends itself to this process of drawing the painful events in my life out of the forgotten past and into the light."
"I had the impression that I was resurfacing from the depths of the sea, that I was returning to the realm of the living. I don't know how many times [the process?) nearly drowned me."
Agnes Whitfield, 65, Canadian academic, professor of English

Ontario Court of Appeal A letter written by Agnes Whitfield to her brother Bryan around the time the abuse would have taken place.

"As she stated very poignantly during the course of the examination -in-chief: 'On a good day, it was only fellatio; on a bad day he would sodomize me'."
"They are not false memories."
Judge John McIsaac, Ontario Superior Court, 2014 ruling

"You just don't see it [recalled memories of this nature] as much anymore. You don't see prosecutions brought solely on the basis of supposedly recovered memories."
"This case was unusual because it was a private lawsuit; you didn't need the police or Crown to sign off on it."
Matthew Gourlay, lawyer for Bryan Whitfield

Agnes Whitfield was the youngest of four siblings who lived happily with their parents on a dairy farm close to Peterborough, Ontario. All of the Whitfield children succeeded to professions that made their parents proud. Sister Joan was a pediatrician, Margaret a psychiatrist, Brother Bryan a college math teacher, while Agnes pursued a love of French literature, and she studied in Paris and Laval, receiving eventually a Governor General's award and a teaching career at Queens University followed by York University.

The family fell out when, in disposing of the parents' estate, there was disagreement over what to do with the family cottage. Agnes, feeling rather disgruntled, summoned up childhood memories of dreadful occurrences of herself suffering sexual abuse at the hands of her beloved older brother, Bryan. She had no need to consult a professional psychiatrist, because she managed on her own and with the support of her partner Daniel Gagnon, a Montreal artist and writer, to recall those memories. Amazingly, Daniel Gagnon also underwent a transfixing recall of similar abuse he had suffered.

So Agnes wrote her puzzled brother Bryan that accusatory letter. Soon afterward he received another missive, this time from one of his sister Agnes's estranged three daughters telling him: "Mom is not well and unfortunately this is not the first of this kind of accusation that she had made". Agnes, on the other hand, having written her brother, accusing him of having tormented and sexually abused her from age six to 20, reported the situation to police.

After her memories had been resurrected Agnes hired a Toronto psychologist as an expert witness as part of the lawsuit she launched against her brother. Sarah Maddocks mentioned to Agnes her peculiar lack of emotion in relation to the tense subject, to which Agnes responded that she experienced "trouble getting into anger", and then suddenly, according to the psychologist she appeared to undergo a "switch of consciousness".

Rocking on the sofa, eyes glazed, darting, unfocused, pouting, jaw spasming, choking on her breath. There was a verbal outburst of accusation against someone, and several minutes later, she appeared to return to normal. Dr. Maddocks diagnosed post-traumatic stress disorder, agoraphobia and a personality disorder. And that in her expert opinion her patient's mental anguish "provides significant support" for the truth of her claims. Yet Dr. Maddocks also pointed out that Agnes appeared a "vague historian", scoring high on a deception scale.

When asked about the abuse she described, Agnes became distressed, vague, evasive and her very expressive language itself was altered. Dr. Maddocks also found that Agnes's relationship with her companion Daniel Gagnon, was "abnormally codependent and isolating". Agnes, she felt, was deeply maladjusted. As for Judge McIsaac, Agnes's refusal to be examined by a defence psychiatrist did not entirely put him off her credibility. Justice McIsaac believed Agnes's claims, and he also believed her brother Bryan's denials.

Agnes had accused her brother of forcing her head into a toilet, threatening to make her drink from it. That he placed a gun barrel in her mouth, telling her that her parents felt her to have been a "mistake" they never wanted. Her brother, she said, locked her in the dairy farm's cold room, pushed her into a gravel pit, attempted with machinery to burn her, killed her baby rabbits, placed a rope around her neck, mocking as though to hang her.  Once, when she was staying with Bryan and a friend of his at a cottage, they urinated on her, forced her to eat her feces, locked her overnight in an abandoned mine shaft.

There was, she said, a trip to British Columbia where she said her brother sold drugs and prostituted her to partiers on Long Beach near Tofino, and to a gang of construction workers in Vancouver, for good measure. Cross examination elicited her acknowledgement that she failed to recall being gang-raped around a fire, in accord with earlier testimony, but she had an "impression" of the occurrence. All of this Judge McIsaac believed. Yet Bryan in  his defence submitted old letters from his sister saying how much she appreciates and misses his presence as her "favourite brother".

In the end, Bryan was ordered to pay his sister close to $500,000. He appealed the verdict, hiring a well-known Toronto lawyer to defend him. That lawyer, skilled in courtroom interrogation techniques eviscerated Agnes's recollections, convincing the Ontario Court of Appeal to reverse the ruling, to grant a defamation claim against Agnes. The pendulum has swung in the opposite direction; Agnes must now pay costs and damages to Bryan of close to $180,000. She reacted by hiring lawyers to lodge an appeal with the Supreme Court.

Whitfield v. Whitfield, 2016 ONCA 581 (Weiler, van Rensburg and Roberts JJ.A.), July 20, 2016

 

Bryan Whitfield appealed from a 2014 judgment that found him civilly liable to his sister, the respondent Agnes Jane Whitfield, for sexual and physical assaults that allegedly occurred between forty and sixty years previously. He also appealed the dismissal of his counterclaim against his sister for defamation. The issues raised on the appeal included the permissible uses that can be made of an expert’s opinion concerning the credibility and reliability of a witness, and the application of the defence of qualified privilege.

Agnes Whitfield, now sixty-five years old, claimed that at age fifty she recovered repressed memories of horrific sexual and physical abuse at the hands of her brother which began when she was four or five years old and continued until she was twenty. Bryan Whitfield, who is now in his seventies, vehemently denied that he ever sexually or physically abused his sister. These denials were supported by the parties’ two older sisters and a woman who had worked for their family as a mother’s helper.

 

The main support for the respondent’s evidence came from her expert witness, Dr. Sarah Maddocks, a psychologist who was retained by the respondent’s prior lawyer to provide an opinion concerning, among other things, the respondent’s allegedly recovered traumatic memory, her mental status, and the impact of the alleged assaults on the respondent. She was qualified at trial “to give expert evidence generally in the area of psychology, and in particular in relation to sexual victimization”. Dr. Maddocks acknowledged the controversy surrounding memory recovery and admitted that recovered memories of early childhood abuse are rare and not always reliable. She agreed that it is impossible, without corroborating evidence, to distinguish a true recovered memory from a false one, stating that she could not know for certain whether the respondent’s memories, which remain fragmented, represented actual events. Nonetheless, she opined that the respondent’s recalled memories were not implanted and were consistent with the literature on types of recalled memory that have been found to refer to actual events, concluding that “there is a strong indication” that the respondent’s brother severely sexually and physically abused her on a regular basis over a long period of time, starting when she was very young.

 

The trial turned on the credibility and reliability of the respective parties’ accounts. Finding the appellant and respondent equally credible as witnesses and their stories equally compelling, the trial judge deemed Dr. Maddocks’ evidence to be of “critical importance in resolving this litigation”. He concluded that he could use this evidence not simply in furtherance of the quantification of the respondent’s claim for damages, but also to support the respondent’s case on liability.

 

After a trial which spanned about a year, the trial judge found in favour of the respondent, awarding her $250,000 in “aggravated general damages”, $50,000 in punitive damages, and $54,200 in special damages for future therapeutic care, as well as costs.

 

The appellant submitted that the trial judge erred in law in his reliance on and use of Dr. Maddocks’ opinion evidence. The Court of Appeal agreed, finding that the trial judge relied on the expert evidence for the impermissible use of corroborating the truth of the respondent’s allegations of sexual and physical assault for the purpose of finding the appellant liable.

 

Writing for the Court, Roberts J.A. found that the trial judge’s reliance on the Court of Appeal’s decision in S.R.S. v. H.P.S. (1999), 122 O.A.C. 351, to corroborate the respondent’s allegations was misplaced. That decision does not stand for the general proposition that expert evidence can be admitted as corroboration of a claimant’s allegations of sexual abuse for the purpose of establishing liability. The Court simply held in that case that expert opinion evidence regarding the impact of sexual abuse was widely accepted.

 

Although the trial judge indicated in his reasons that he would not allow Dr. Maddocks’ evidence to disproportionately influence his analysis, in Justice Roberts’ view it was clear that this was precisely what occurred. The trial judge did not use Dr. Maddocks’ evidence to explain the memory process in human beings and delayed recall in victims of historical sexual abuse or for the purpose of assessing the respondent’s damages, all of which would have been permissible uses. Rather, he expressly relied on Dr. Maddocks’ evidence “to resolve the litigation by tipping his otherwise evenly balanced assessment of the credibility and reliability of the appellant and the respondent”. By relying on Dr. Maddocks’ evidence to corroborate the truth of the respondent’s fragmented recovered memories, the trial judge abdicated to the expert his role as the trier of fact.

 

Roberts J.A. observed that in light of the judge’s determination that “the scales between the case” for the appellant and respondent were “relatively evenly balanced,” it was clear that Dr. Maddocks’ evidence was essential to his finding that the respondent had made out her case. That evidence was simply not available to the trial judge to resolve the conflict between the parties’ respective accounts.

 

The appellant’s counterclaim against the respondent for defamation was founded on the publication of a series of letters and emails which the respondent sent to family members, lawyers and an old friend, which contained allegations of sexual and physical abuse against her brother which formed the basis for her claim. The trial judge determined that even if the respondent’s allegations were not accepted as true and her action had not been successful, the defence of qualified privilege would apply to all of her communications to third parties, barring the counterclaim.

 

In Justice Roberts’ view, the trial judge’s finding of qualified privilege was “irreparably tainted” by his erroneous finding that the respondent’s allegations were true, supported by Dr. Maddocks’ evidence. Moreover, even if the defence of qualified privilege could be said to apply to the communications to the respondent’s family and the two lawyers, it could not apply to the communications to the respondent’s former friend from high school, who, having had almost no contact with the respondent in several decades, had no duty or interest in receiving them. The respondent did not testify as to her reason for copying her old friend on the defamatory emails and provided no evidence that she asked her for assistance or advice, or that the friend ever responded. In these circumstances, there was no legitimate interest to be protected by the statements and, accordingly, they did not merit the protection afforded by the defence of qualified privilege.

 

The Court of Appeal concluded that the trial judgment, including the dismissal of the appellant’s counterclaim, must be set aside. Finding a new trial to be unnecessary, the Court dismissed the respondent’s action and allowed the appellant’s counterclaim. 

 

Venezuela, a Country on Life-Support

"There are people dying for lack of medicine, children dying of malnutrition and others dying because there are no medical personnel."
Dr. Yamila Battaglini, surgeon, J.M. de los Rios Children's Hospital, Caracas, Venezuela

"I had a patient just now who needed artificial respiration, and I had none available. A baby. What can we do?"
"What can we do here? Every day I pass an incubator that doesn't heat up, that is cold, that is broken."
Dr. Amalia Rodriguez Luis Razetti Hospital, Barcelona, Venezuela

No beds: Nicolas Espinoza's daughter sleeps in the children's cancer ward at Luis Razetti Hospital

This is the Bolivarian revolution in living colour in Venezuela, the brave new world of socialism, for the people by the people, of the people. A Venezuela that Hugo Chavez, the socialist dictator who used the natural resources of his country to buy the friendship of Cuba and Venezuela's neighbours but neglected to bank any of the financial windfall resulting in the country's vast wealth of oil. And nor did he invest in upgrading infrastructure, let alone in building the means by which his country could refine its own oil.

But he did ensure that when he died long before he was willing to give up the ghost, that his replacement would be, like him, a man of the people, a bus driver who so excelled at his job he knew how to pick people up and drop them off at the junction of their choice, for a fee. And now Nicolas Maduro is president of all he surveys and in his wisdom has refused to accept international aid for his faltering nation.

Food is scarce, and so is gasoline and energy, so government departments operate only two days a week. People spend all their time waiting in long lineups for pedestrian products that should be available readily and affordably. Availability and affordability are now foreign concepts in Venezuela. And the health care system has collapsed under the weight of unavailable funding, drug shortage, and equipment failure.

"Some come here healthy and they leave dead", explained Dr. Leandro Perez at Luis Razetti Hospital. With the largest oil reserves in the world there was no vision of the potential for hard times to arrive at some point, no thought that the price per barrel of oil would plunge to unsustainable depths. Looting has become commonplace, and the bolivar is close to worthless. Crime has soared.

"This is criminal that we can sit in a country with this much oil, and people are dying for lack of antibiotics", lawmaker Oneida Guaipe observed with despair for his country. Political opponents of the president have declared a humanitarian crisis and were prepared to allow Venezuela to accept international aid, but that humiliation was vetoed by President Maduro.

Pumps supplying water to the University of the Andres exploded, and it took months for repairs to be undertaken. In the absence of water, gloves, soap and antibiotics, surgeons undertook surgery in operating rooms covered in blood from previous surgeries. Two of nine operating rooms only remain functional at the J.M. de los Rios Children's Hospital in Caracas.

Lack of supplies: Jugs and soda bottles that doctors at Luis Razetti Hospital rigged to treat patients with broken legs in Puerto la Cruz

A month ago Aquiles Martinez, director of Barcelona's Luis Razetti Hospital was arrested, accused of stealing hospital equipment; machines to treat respiratory illnesses, intravenous solutions and 127 containers of medicine. The shelves in the hospital's pharmacy are partially bare reflecting a shortage of imports the government can no longer afford. When treatment is needed, doctors inform patients' families, handing them lists of medicines. Then they are sought on the black market.

Energy blackouts shut down maternity ward respirators leaving doctors to keep infants alive pumping air into their lungs for hours by hand. Newborn babies requiring ongoing respiratory treatment die. "The death of a baby is our daily bread", said Dr. Osleidy Camejo a Caracas surgeon, deploring the collapsing of Venezuela's hospitals and the anguish of doctors.

Shortages everywhere in society are so acute that hospitals see their supplies of gloves and soap evaporate, and medications for cancer can be found only through black market acquisition. Not enough water is available at the University of the Andes Hospital in the city of Merida to wash blood from operating tables and surgeons prep their hands for surgery with bottles of seltzer water.

"It is like something from the 19th Century", despairingly stated Dr. Christian Pino as the death rate of babies under a month has increased over a hundredfold in public hospitals. New mothers are dying in those hospitals by almost five times in the period between 2012 and 2015, according to a government report.

Patients rest where they can in little comfort in the hallways at the overcrowded public hospital in Merida, Venezuela, in January