Ontario Attorney General Madeleine Meilleur has appointed retired Court of Appeal judge Judith Beaman as commissioner to assist individuals who may have been affected by Motherisk’s flawed hair-strand testing.
Meilleur made the announcement just days after retired Ontario Court of Appeal justice Susan Lang’s independent review of the hair-testing practices at the lab in Toronto’s Hospital for Sick Children was released Dec. 15. Lang, who began the first review in November 2014, found the now-defunct Motherisk Drug Testing Laboratory never met international forensic-testing standards for hair-strand drug and alcohol testing.
“Given my conclusion that the hair-strand drug and alcohol testing used by MDTL between 2005 and 2015 was inadequate and unreliable for use in child protection and criminal proceedings, the use of that evidence has serious implications for the fairness of those proceedings and warrants a further review of individual cases or classes of cases,” Lang wrote. “Indeed, MDTL’s leadership failed to appreciate that the laboratory was doing forensic work. None of the laboratory’s leadership had any formal training in forensic toxicology.”
She wrote that in addition to the lab’s extensive use in child-protection proceedings, its hair test results were also used as evidence in criminal proceedings, although, in contrast to the hair samples from the 16,000-plus individuals tested by MDTL at the request of child-protection agencies between 2005 and 2015, few hair samples were processed by the laboratory for criminal matters. Her report found that information provided to the Independent Review by the Crown Law Office – Criminal identified six criminal cases, including the matter of Tamara Broomfield, which led directly to the review. In that matter, she was convicted and served 49 months in jail for allegedly administering cocaine to her toddler, in part due to the flawed testing and medical evidence surrounding it. Those findings were eventually quashed by the appeal court in October 2014, when fresh forensic evidence brought to light the flaws in methodology at Motherisk.
“Hopefully, they will be looking deeply into the science behind this and how this evidence was so trusted in court given the frailties that were eventually uncovered with it,” says lawyer Daniel Brown, who was involved in Broomfield’s defence.
“This is a symptom of a larger problem, and the problem is forensic testing is being conducted in labs without proper procedures and protocols in place and it’s being conducted by labs that simply don’t have the qualifications to do the testing they’re presenting in courts,” Brown says. “We hope that the findings of the inquiry will have broader application; it shouldn’t just be an answer to this one isolated problem.
What we hope is that these problems don’t happen in other cases.”
Peter Marshall, formerly an in-house lawyer for Children’s Aid in Toronto and now president of the Recovery Science Corporation in Bancroft that at one point had collected samples for Motherisk testing before the issues came to light, says that because public confidence has been shaken by the issue, it would be appropriate for the commissioner’s mandate to allow review of the practices at other labs.
Marshall says increased education for judges and lawyers in terms of how they interpret scientific evidence will be a vital element in restoring public confidence as well.
Brown says that often when dealing with scientific, forensic evidence, the courts “weren’t taking a close enough look at the science, that lawyers weren’t challenging the science, and that prosecutors didn’t understand the limits of the science when they were presenting this evidence in court.” He says that now that will significantly change and he expects a far higher level of scrutiny by all parties in court, but he adds that through the second review, he hopes the commissioner’s mandate will include ways to train a jury on interpreting such evidence as well.
“We assume science is black and white, it’s not open for interpretation, and there’s only one right answer when really it’s shades of grey,” Brown says. “This was, by all accounts, junk science the way it was being conducted; these were presumptive tests that were being presented as if they were the gold-standard testing.”
Meanwhile, shortly after the ministry announced the impending second review, Koskie Minsky LLP announced it would be issuing a Notice of Action against the lab and the hospital for the flawed testing methodology in child-protection matters.
“The lawsuit will allege that both Motherisk and SickKids were negligent in a failure to meet internationally recognized forensic standards with its hair testing and a failure to provide proper oversight to ensure the quality, proficiency and accreditation of its tests,” it wrote in a press release announcing the upcoming notice.
Family law specialist Steven Benmor says it’s not a surprising development even if “we don’t often hear the words class action in family law.”
“It was and is a fairly large event to the extent that there were people who have lost custody of their children to the state in part over incorrect findings by Motherisk,” says Benmor. “Number one [priority for the commissioner] will be establishing standards of practices that would be considered minimum standards of practice, and that’s exactly what the Koskie Minsky lawsuit is alleging.”
Benmor says that will require an international review of the bare minimum standards for testing.
“The testing must be rigorous and the commissioner hopefully will suggest recommendations whereby there will be some back-check installed where there will be regular monitoring of the agency, the laboratory that’s performing these services,” he adds, saying random testing should also be part of the oversight. “I hope the commissioner and the report provide very practical tools . . . not just [for] the laboratories that will operate but for the legal system to know how to properly examine forensic evidence, what questions we should be asking in order to form an opinion as to the validity of expert evidence.”
For its part, SickKids released an apology following the release of Lang’s review, quoting the hospital’s president and CEO Dr. Michael Apkon: “We deeply regret that practices in, and oversight of this particular program did not meet SickKids standards of excellence. We extend our apologies to anyone who feels they may have been impacted.
“SickKids is fully committed to addressing the recommendations and will work closely with the commissioner once appointed,” the release states. “We remain resolved in our efforts to ensure that we have effective oversight and the highest standards of quality and safety in all of our programs.”
It further states that the hospital now requires all summons and subpoenas to its clinicians and scientists be reviewed by the legal department and that it is implementing a training program to ensure that staff who prepare reports and testify in court have the appropriate training and context with regards to their roles and responsibilities.