The Inviolability of the Body

The central premise behind civil laws is a private wrong done to another.

According to Graham McBain in International Law Research, the earliest example of what would become the common law probably can be attributed to the Anglo-Saxon concept of “wounding,” which constituted a tariff system of fines from the 6th c. CE, based on the nature of the injury.

This personal wrong evolved into a form of trespass to the person, which we now know today as a civil tort of battery. Justice Cartwright drew on an 1891 Queen’s Bench decision in an early Canadian case in Cook v. Lewis to describe the wrong in 1951 as,

…where a plaintiff is injured by force applied directly to him by the defendant his case is made by proving this fact and the onus falls upon the defendant to prove “that such trespass was utterly without his fault.”

The facts in this case were complicated, in that the plaintiff was shot by one of two hunters but neither knew which one was responsible, so the decision was decided under the principles of negligence instead, finding both hunters liable. Expressly pleading negligence in the claim was therefore essential to its success.

After reviewing the decision in Cook, Justice MacDonald affirmed the following definition of battery in Larin v. Goshen in 1974,

The law in Canada at present (sic) is this: In an action for damages in trespass where the plaintiff proves that he has been injured by the direct act of the defendant, the onus falls upon the defendant to prove that his act was both unintentional and without negligence on his part, in order for him to be entitled to a dismissal of the action.
[emphasis in the original]

The tort of battery continues to develop and evolve, for example, contemporary calls to expand it to include non-consensual exposure to toxic substances, which would violate bodily integrity and compromise individual autonomy.

As recently as two decades ago, it was still relatively unusual to have battery claims for sexual assault. The Supreme Court of Canada decision Non-Marine Underwriters, Lloyd’s of London v Scalera examined a civil action against five bus drivers for various alleged sexual assaults between 1988-1992.

Justice McLauchlin, as she then was, stated for the majority,

2 As Goff L.J. (as he then was) stated in Collins v. Wilcock[1984] 3 All E.R. 374 (Q.B.), at p. 378, “[t]he fundamental principle, plain and incontestable, is that every person’s body is inviolate”.  The law of battery protects this inviolability, and it is for those who violate the physical integrity of others to justify their actions.  Accordingly, in my respectful view, the plaintiff who alleges sexual battery makes her case by tendering evidence of force applied directly to her. “Force”, in the context of an allegation of sexual battery, simply refers to physical contact of a sexual nature, and is neutral in the sense of not necessarily connoting a lack of consent. If the defendant does not dispute that the contact took place, he bears the burden of proving that the plaintiff consented or that a reasonable person in his position would have thought that she consented…

10 …In my view the law of battery is based on protecting individuals’ right to personal autonomy. To base the law of battery purely on the principle of fault is to subordinate the plaintiff’s right to protection from invasions of her physical integrity to the defendant’s freedom to act… Although liability in battery is based not on the defendant’s fault, but on the violation of the plaintiff’s right, the traditional approach will not impose liability without fault because the violation of another person’s right can be considered a form of fault. Basing the law of battery on protecting the plaintiff’s physical autonomy helps explain why the plaintiff in an action for battery need prove only a direct interference, at which point the onus shifts to the person who is alleged to have violated the right to justify the intrusion, excuse it or raise some other defence.

15 These arguments persuade me that we should not lightly set aside the traditional rights-based approach to the law of battery that is now the law of Canada. The tort of battery is aimed at protecting the personal autonomy of the individual. Its purpose is to recognize the right of each person to control his or her body and who touches it, and to permit damages where this right is violated. The compensation stems from violation of the right to autonomy, not fault. When a person interferes with the body of another, a prima facie case of violation of the plaintiff’s autonomy is made out. The law may then fairly call upon the person thus implicated to explain, if he can. If he can show that he acted with consent, the prima facie violation is negated and the plaintiff’s claim will fail. But it is not up to the plaintiff to prove that, in addition to directly interfering with her body, the defendant was also at fault.

16 Having stated that we should not set aside the traditional approach to battery, I do not wish to foreclose the possibility of future growth in this area of the law. References in definitions of the tort of battery to “injury”, or to contact being “unlawful” or “harmful or offensive” are different ways of expressing the idea that not every physical contact constitutes a battery. In other words, the tort requires contact “plus” something else. One view, as I discuss in the next section, is that the “plus” refers merely to non-trivial contact. The caselaw to date tends to support this view, and generally does not require actual physical or psychological injury. In a future case, it may be necessary to consider whether the “plus” required in addition to contact should be extended beyond the minimum of non-trivial acts...
[emphasis added, citations omitted]

The case came before the Court not necessarily about the definition of battery or that the lack of an intention to harm constituting a defence, but whether a homeowner’s insurance policy by one of the defendants would provide coverage.

Specific exclusion clauses for sexual assault would be scarce in such policies generally, which led to the court to examine the pleadings. They found the plaintiff to have properly plead allegations of both intentional and non-intentional tort, and at para 86 the dissent stated, “…one must always remember that insurance is presumed to cover only negligence, not intentional injuries.”

While cautioning that a plaintiff may draft a claim in a way that seeks to turn intention into negligence, specifically for the purpose of accessing an insurer’s deep pockets, the dissent relied on the comments around the interpretation of insurance polices found in Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Coto conclude a literal meaning should not be applied to an insurance contract where it would bring an unrealistic result or one that was not contemplated at the time of agreement.

Thomas O’Leary explains this in the Alberta Law Review Society,

Most policies have a number of mechanisms… to safeguard the principle of risk and preclude cover for intentionally caused losses. These mechanisms include requirements coverage as well as exclusion clauses for intentional acts. Usually, plaintiffs in sexual tort cases allege negligence in an attempt to circumvent these types of provisions and gain access to some insurance money. The decision in Scalera seemed largely directed toward limiting this practice and any effectiveness it might have enjoyed.

Given the convoluted nature of the pleadings, the dissent sought to interject a reasonable person element to the analysis as it related to consent. In part, this was because the plaintiff plead a breach of fiduciary duty, likely due to the previous case of Reibl v. Hughes in 1980, dealing with medical battery. Unlike in that case, there was no physician-patient relationship that would give rise to such duty.

The majority rejected what they considered a reformulation of sexual battery, affirming that personal interference with the body is prima facie violation of autonomy, without requiring a plaintiff to prove that they did not consent or that the defendant knew or ought to have known that they did not consent.

The advantage of relying on battery instead of negligence in pleadings is also apparent from an evidentiary basis, independent of any insurance concerns. Chief Justice Laskin stated for the Court in Reibl,

The tort [of battery] is an intentional one, consisting of an unprivileged and unconsented to invasion of one’s bodily security. True enough, it has some advantages for a plaintiff over an action of negligence since it does not require proof of causation and it casts upon the defendant the burden of proving consent to what was done.

For sexual assault cases, the evidentiary concern can be a significant one, as these proceedings can often be brought years after the alleged battery, due to an exception to limitations under s. 16 of the Limitations Act, which were introduced in 2016. The court in Jane Doe v. Weinstein confirmed that these exceptions apply retroactively.

More recently, the Ontario Superior Court of Justice released a decision in Barker v. Barker, alleging battery, assault, and intentional infliction of emotional distress.

The action involves patients at a maximum security health centre between 1966-1983, by patients in the Social Therapy Unit (STU) involving controversial treatment that included mind-altering drugs, isolation cells, hallucinogenic drugs, and a strict disciplinary regime, Tactics included verbally aggressive communication and patient-on-patient physical enforcement, all under the guise of therapy.

One of the defendants described it as the “greatest experiments in psychiatry.” Notably, all of the plaintiffs were committed involuntarily, and did not consent to this treatment or the tactics employed. The entire program was subject to an Ombudsmen report, and they in turn reported to the Ontario Legislature stating in 1978,

1. That the program is applied humanely and intensively
2. that the patients understand the nature
of the therapy…

4. that the patients are well informed about
the treatment and its possible benefits…

The court in this action found otherwise. The medical expert for the plaintiffs, a medical ethicist, went as far as saying they violated the Nuremberg Code of 1947 and the Declaration of Helsinki of 1964. Perhaps this was only possible because at least one of the physicians acknowledged also taking hallucinogenic drugs.

There were 28 named plaintiffs in the action, after a class action was denied certification. The Court of Appeal then reversed a partial summary judgement, which included issues around limitations, and varied the ruling around procedural fairness, noting the claims included “very serious allegations of torture and degradation of human dignity.”

The court intended to expedite the matter given that the events were nearly half a century old, and it then proceeded as a hybrid summary and full trial. By that time, 4 of the 28 plaintiffs had already died, with two more dying during the course of the trial, and another 2 plaintiffs dying while the judgement was under reserve.

The court concluded that it was obvious that the practices at the centre were experimental, and not “innovative,” as described by the defendants, stating,

[1178] McLachlin J. (as she then was) stated in Norbergsupra, at para 78, that these duties are even more stringently applied to psychiatrists than to other practitioners:

“The Task Force of the Ontario College of Physicians and Surgeons has in its report also recognized the greater danger of breach of trust inherent in psychotherapeutic relationships, and has as a consequence recommended even more stringent guidelines for appropriate psychotherapist behaviour than it has for physicians practicing in other areas.” Accordingly, “[t]he physician is pledged by the nature of his calling to use the power the patient cedes to him exclusively for her benefit. If he breaks that pledge, he is liable”: Ibid., at para 98.

In other words, a breach of professional ethics can in and of itself qualify as a legally cognizable breach of fiduciary duty.

Although some of the plaintiffs may have signed forms of consent or appeared to provide verbal consent, the court noted that “even where there was a semblance of consent, truly voluntary and informed consent was not possible in the coercive environment,”

[1193] All 3 of the impugned STU programs amounted to a non-consensual, non-trivial invasion of the Plaintiffs’ bodily integrity. The physical regiment of MAPP, whether or not accompanied by restraints, was self-evidently an infringement of bodily inviolability, as was the stripping and placing of patients in the Capsule with unhygienic conditions and sleep deprivation, again with or without restraints. Finally, the administering of DDT drugs without properly informed consent, whether by injection or orally, constituted a physical invasion that is legally a battery. For Joseph Bonner, being placed in confinement for extended periods of time – 6 of the 9 months that he was at Oak Ridge – likewise amounted to a physically invasive battery.

The limitations issue became the matter of an unusual mid-trial motion to amend the pleadings. The 2016 amendments to the Limitations Act occurred after the action began, and therefore could have been plead at that time. These amendments define the exception to limitations as including an assault, where ““assault” includes a battery; (“voies de fait”)”, and includes claims where a person was ” financially, emotionally, physically or otherwise dependent” on the defendant.

The court addressed the limitations issue as follows,

[1298] In Oak Ridge, the Plaintiffs were physically and psychologically dependent on the Defendants by virtue of the physician-patient relationship, a relationship of trust and an inherently fiduciary one even where the patient is a voluntary one. Where the patients are involuntarily admitted to a maximum-security psychiatric hospital, their dependence on the physicians and administration of the institution is complete.

[1301] In the context of this claim, no limitation periods, including the specially short ones invoked by Defendants’ counsel for involuntarily admitted patients, are applicable. In the first place, where there is any ambiguity or question, limitation provisions are to be construed in favour of the person whose right of action is being truncated: Berardinelli v. Ontario Housing Corp.1978 CanLII 42 (SCC)[1979] 1 SCR 275, 280. Moreover, it has long been the position of this court that conduct that is an abuse of power, rather than an exercise of power, would “not be deserving of the special protection afforded by the short limitation period”: Cascone v Rodney; Prochnicki, Third Party (1981) 34 OR (3d) 618 (HCJ). That characterization readily applies to the acts of the Defendants in breaching fiduciary duties and perpetrating intentional torts on the Plaintiffs.
[emphasis added]

The magnitude of this case may transform the understanding of the harm that flows from certain forms of battery, including a broader recognition of psychological damages. The Court pointed to the Court of Appeal’s decision in CCLA v Canada (Attorney General), where confinement can constitute cruel and unusual punishment, and earlier, that such physical confinement can also result in psychological harm.

Wounding of this type, which goes beyond the scale of battery claims as typically defined, may allow us to better understand how the inviolability of the body without excuse or defence, can have further reaching impacts than we ever imagined. Perhaps even more than a psychiatrist on hallucinogenic drugs.

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