Unclear if province will stop using Halifax toxicology lab

Judge rules against lab’s director giving expert opinion evidence

A week after a highly critical Supreme Court decision questioned the reliability of drug and alcohol testing results from a Halifax toxicology lab in a child custody case, it remains unclear whether the province will halt or continue to use the service.

In her ruling, Justice Theresa Forgeron ruled against a motion by the Department of Community Services to have the director of the Central Health Authority’s toxicology lab, Dr. Bassam Nassar, give expert opinion evidence concerning urine testing samples from a Cape Breton father.

“I find that Dr. Nassar’s opinion, respecting the toxicology lab results, is not reliable where the lab is not designated a forensic lab, where the lab is not subject to external proficiency testing or oversight, and where the lab’s adherence to international standards is uncertain,” said Forgeron.

The ruling came in the case of a Cape Breton father who wants unsupervised access with his young daughter. The department disagreed, pointing to three urine testing results — taken between April and July 2017 — that indicated the presence of cocaine. The father disputes the results.

The department has indicated it will appeal Forgeron’s ruling.

When asked this week if the department will continue to use the Halifax-based lab for such testing, a spokesperson’s only comment was “as the matter is before the courts, the department will not be commenting.”

As for the health authority’s response to criticisms of its lab, Shauna Thomson, senior director of pathology and laboratory medicine, offered a brief comment.

“We have been investigating options related to specific accreditation for our forensic toxicology laboratory as a means to formally recognize our adherence to national and international standards for some time. Our intent is to move this forward as soon as possible,” said Thompson.

While Thompson refers to the lab as a forensic lab, Forgeron, in her decision, said the facility is not designated or certified as a forensic lab but as a clinical lab and no application has been made to have the lab certified.

Just to what extent the province relies on the lab to perform drug and alcohol testing in custody cases is not clear as the department had declined to answer any questions on the subject.

During another case hearing this week in Sydney, the department wanted the father to consent to have further testing done at a lab in the United States. The father declined.

The father said Friday he has become angry and frustrated with the department and its intrusion into his life and that of his daughter. The father continues to have supervised visits with his daughter.

“I will not be bullied, strongarmed or threatened by these people,” he said.

The use of the Halifax lab comes two years after the province stopped using an Ontario laboratory for such testing.

In 2016, Nova Scotia was among a number of other provinces to halt drug and alcohol hair testing in child protection cases from the Toronto Hospital for Sick Children’s Motherisk lab.

In 2014, the Toronto Star revealed that the lab was using a hair test not recognized as the “gold standard.”

An independent review deemed such results “inadequate and unreliable” in 2015, prompting reviews of thousands of child protection cases across the country.

In her decision, Forgeron said the Halifax facility is not subject to any external testing or oversight that could offer independent assurances that it is free of problems that could result in flawed testing.

She said the court drew little comfort from the fact the lab is subject to Accreditation Canada, as Nassar admitted to the court that he could not recall anyone from Accreditation Canada ever inspecting the toxicology lab.