Queen’s Park orders review of province’s forensic labs
Discredited Motherisk program ‘taught us that we need to do better,’ minister says
The stunning litany of failings uncovered at the Hospital for Sick Children’s Motherisk laboratory has prompted the province to launch a review of the oversight and accountability of Ontario’s forensic labs.
The review will examine setting mandatory accreditation standards for forensic labs, as well as improving forensic training and increasing transparency.
Marie-France Lalonde, minister of community safety and correctional services, said the problems at Motherisk “taught us that we need to do better.”
“We need to make sure that the public confidence is there,” Lalonde said in an interview on Monday. “We want to ensure that the justice system . . . can rely on very strong evidence” and the “same standard of training for all our labs.”
The ministry will hold consultations in June with key stakeholders, including experts from the justice sector, forensic associations, civil liberties groups, Indigenous organizations, laboratories and accreditation bodies.
The Motherisk scandal, which was revealed by a Star investigation in late 2014, has cast doubt over thousands of child protection proceedings across Canada that relied on the lab’s discredited hair-strand drug and alcohol tests from the late 1990s to the spring of 2015, when Sick Kids closed the lab.
“We need to make sure that the public confidence is there.” MARIE-FRANCE LALONDE MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES
It also exposed oversight gaps at Sick Kids and in the justice system, which failed to ensure that Motherisk’s hair tests met the high bar for evidence presented in court, and has served as yet another reminder of the dangers of flawed forensics.
In December 2015, a retired judge appointed by the province to review the previous decade’s worth of Motherisk hair tests concluded that the lab’s operations “fell woefully short of internationally recognized forensic standards,” and the tests were “inadequate” and “unreliable” for use in criminal and child protection cases.
Motherisk was never accredited as a forensic lab. It did not have clinical accreditation — which is not as stringent as forensic accreditation, but ensures basic standards are being met — until 2011.
In her report, Justice Susan Lang found the lab did not double-check results before August 2010, until which point it reported screeningtest results despite “an explicit warning” that the results were preliminary and must be confirmed.
Neither the hospital nor Motherisk leadership appreciated that the nature of the tests the lab carried out was forensic, which Lang defined as being “used for a legal purpose.” Staff routinely performed a forensic service yet lacked the forensic training required to meet the stringent standards for evidence presented in court, she said.
Lang also found Sick Kids failed to provide “meaningful oversight” and did not learn from the lessons of the 2008 public inquiry into Charles Smith, a former Sick Kids pediatric forensic pathologist, whose flawed autopsy analyses tainted more than a dozen cases.
Lalonde said these incidents have prompted the province to explore the possibility of creating a process of mandatory accreditation for labs performing forensic services “in a very serious way.”
“My view is that we will be moving forward on mandatory accreditation,” she said, adding that the goal is to ensure “not only that we are learning from past events, but that we are also moving forward in improving our system.”
In a letter to stakeholders obtained by the Star, the ministry said it is considering “implementing an appropriate accountability framework” for forensic labs that could include establishing a registry, reporting requirements and a code of conduct, as well as enforcement mechanisms.
As Lang said in her report, forensic accreditation is not currently required for a lab to perform tests for forensic purposes.
The Standards Council of Canada, a federal Crown corporation, is responsible for accrediting forensic labs based on international standards, which include strict rules for documentation and chain-of-custody procedures.
Toronto criminal defence lawyer James Lockyer, who was instrumental in exposing the failings at Motherisk, said the review is long overdue.
“If a proper accreditation process had been in place 10 years ago for Motherisk, presumably we wouldn’t have had these problems. They would have been compelled to function properly in a scientific manner,” he said.
From 2005 to 2015, Motherisk performed its hair-strand tests for 16,000 individuals at the request of Ontario’s child protection agencies — 54 per cent of whom tested positive for drugs or alcohol, Lang found. The tests were also relied upon in thousands of child protection cases in B.C., Nova Scotia and New Brunswick.
Between January 2007 and March 2015, the lab’s revenues exceeded $11 million, $6.8 million of which came from children’s aid organizations, as the Star has previously reported. Used primarily as evidence of parental substance abuse, the results of Motherisk’s hair tests were rarely challenged in legal proceedings, and influenced decisions to remove children from their families.
On Lang’s recommendation, the province established the Motherisk Commission in January to probe child protection cases in Ontario that relied, in part, on Motherisk’s hair testing evidence, and to offer counselling and legal assistance to affected families. Led by retired judge Judith Beaman, the commission has identified 41cases in which there was a “substantial reliance” on Motherisk testing out of 701 files reviewed so far.