Ontario’s review of the controversial Motherisk Drug Testing Laboratory at the Hospital for Sick Children could have profound implications for child welfare agencies and courts across Canada.
Motherisk’s hair drug and alcohol tests have been used as evidence in child protection and criminal cases in at least four provinces and one territory outside Ontario, a Star investigation has found.
In Nova Scotia, for instance, there are 49 cases “that are currently open before the courts that have used the services of the Motherisk testing program,” according to Lori Errington, spokeswoman for the province’s community services department.
With the exception of the Halifax region, which uses a different lab, Errington said, “all regions in the provincial system use Motherisk services.”
“The province will use a different forensic testing lab and will monitor the outcome of the review in Ontario,” she said.
Errington said she could not quantify past cases that may have relied on Motherisk’s analysis, or provide numbers for cases that were handled by Mi’kmaw Family and Children’s Services, which is an external agency that operates alongside the provincial system.
Sick Kids suspended all non-research operations of Motherisk last week after questions about the lab’s policies and procedures were raised by an internal audit and an independent provincial review, which was launched last year following a Star probe.
The Ontario government has continued to defend the other work done by Motherisk, which includes counseling pregnant women on which medications are safe to take.
Shelley Hounsell-Gray, a managing family lawyer with Nova Scotia Legal Aid in Dartmouth, said the province’s past reliance on Motherisk is “a big concern.”
“If you can’t rely in the evidence that’s being presented against your client then you are concerned that the outcome is unjust,” she said, adding that “there is no easy fix” in cases where children were removed from a parent.
Sick Kids spokeswoman Gwen Burrows said Motherisk has provided drug testing services for clients in British Columbia, New Brunswick, Quebec, Nova Scotia and the Northwest Territories over the last year.
Burrows did not provide information about previous years.
When Motherisk’s services were halted, 60 clients — nearly one-third of the lab’s total clients — were based outside of Ontario, Burrows said. All clients who used Motherisk in the past year were notified by letter of the suspension of services, she said.
Stephanie Cadieux, B.C.’s children and family development minister, said in an email, “We have only recently been made aware of the Ontario government’s review and the suspended operations of Motherisk.”
“I have not been briefed on this issue and any further comment would be premature,” she said.
Spokeswomen for the governments of Alberta, Saskatchewan and P.E.I. told the Star that child welfare agencies in those provinces do not use Motherisk’s hair testing services.
The governments of New Brunswick, Quebec, Manitoba, Newfoundland and Labrador, Yukon, the Northwest Territories and Nunavut did not respond to a request for comment for this story.
Sick Kids has not provided detail about the questions that led to the decision to halt lab operations pending the outcome of the provincial review.
A survey of Canadian legal databases reveals a handful of past criminal and child protection cases that used Motherisk’s analysis in Nova Scotia, New Brunswick and Quebec, but this may be just “the tip of the iceberg,” said Ontario Justice Marvin Zuker.
Databases such as the Canadian Legal Information Institute (CanLII) include only those decisions judges believe will be of interest, which means they capture a small fraction of total rulings, Zuker said.
“All provinces that used the Motherisk program . . . could certainly be subject to the same type of review,” said Zuker, who was a family court judge in Toronto for more than 20 years before moving to criminal court in 2012. “It could be huge.”
In each of the cases listed in CanLII or Quicklaw, another legal database, substance abuse was one of many factors that led to the outcome:
- Citing concerns about their mother’s “untreated drug addictions,” male companions and prolonged involvement with child protective services, a New Brunswick judge gave guardianship of her three children to the province in 2011. Her access to them was preserved. Motherisk manager Joey Gareri testified that an earlier test of the mother’s hair showed “a consistent pattern of repeated cocaine use” over a six-month period, and either cannabis exposure or use during a later time frame. Another hair test was positive only for codeine, he said.
- In 2013, a mother was found guilty in a Quebec criminal court of endangering the health of a child and possession of the drug GHB after the child drank GHB from a bottle she had left out. Gareri testified that a hair sample from the child, taken at a hospital in Ottawa, showed passive exposure to cocaine. The judge found it “highly plausible” the exposure happened at a neighbour’s home. It was not a factor in the decision.
- Last year, a judge in Sydney, N.S., sided with the province, and removed a young boy from his parents permanently, with no access, citing concerns about violence, substance abuse and a history of agency involvement with the mother’s other children. Gareri testified that hair samples from both parents at various periods showed on-and-off cocaine use and inconclusive results regarding alcohol consumption.
Children’s aid societies in Ontario relied heavily on Motherisk’s hair drug and alcohol tests as proof of parental substance abuse until late last year, when a Court of Appeal decision cast doubt on evidence the lab presented in the 2009 criminal trial of Toronto mom Tamara Broomfield, and prompted the Star investigation.
In November, the province appointed a retired judge to assess the reliability and adequacy of five years worth of hair drug tests performed by Motherisk from 2005 to 2010.
Toronto lawyer Daniel Brown, who tried in 2010 to get the trial judge to reopen Broomfield’s case to re-examine the medical evidence, said Sick Kids has a duty to make public “the scope of the problem and the issues uncovered” as soon as possible.
“There may be other people like Tamara Broomfield across this country, who were convicted on this type of science, that may not be reliable,” Brown said.
Broomfield was sentenced to seven years in jail after Motherisk director Gideon Koren testified that hair tests of her toddler’s hair showed he had regularly ingested large doses of cocaine for more than a year leading up to a 2005 cocaine overdose that left him brain-damaged.
Her cocaine convictions were tossed in October after evidence from an expert witness for the defence criticized Motherisk’s preparation and analysis of the hair sample. Broomfield dropped her appeals of other child-abuse convictions related to the boy.
With files from Jacques Gallant