Finally, ‘it’s over’
A flawed Motherisk drug test led to her conviction for a crime she always denied. After 23 years, a court has lifted her burden
Sometime soon, Joyce Hayman is going to find a big, open field. She’s not sure where it will be, or how she’ll get there. But she knows she will scream as loud as she can, bellowing out the words she thought she’d never be able to say: “It’s over.”
For nearly 23 years, Hayman has carried the weight of a conviction for a shocking crime she always insisted she didn’t commit. That burden was lifted on Monday, when the Ontario Court of Appeal quashed Hayman’s conviction for feeding her young son cocaine and entered an acquittal.
Ontario’s Associate Chief Justice Michal Fairburn, who delivered the ruling on behalf of the three-judge panel, said Hayman “suffered an egregious miscarriage of justice.”
“Where the harm has fallen is crystal clear,” Fairburn said. “Ms. Hayman is truly the victim of a faulty criminal process.”
The court found that Hayman’s conviction was “rooted in the now discredited work” of the former Motherisk drug testing lab at Toronto’s Hospital for Sick Children, Fairburn said. If not for the lab’s flawed hair tests, which purported to show Hayman’s son had repeatedly ingested cocaine, she “would not have been found guilty.”
Crown lawyer Elise Nakelsky acknowledged on Monday that Hayman “should not have been convicted, and she has endured tremendous hardship as a result.” Nakelsky also expressed her “deepest sympathies for any hardship” Hayman’s son endured.
The Star unearthed Hayman’s case in 2018 as part of an ongoing investigation into Motherisk’s flawed evidence. Her wrongful conviction is emblematic of a scandal that devastated families on the margins, leaving a trail of damage that has been tough to trace and repair.
Beginning in the early 1990s, Motherisk conducted hair tests on 25,000 individuals across Canada, primarily for child welfare providers who relied on the results as proof of parental substance abuse. These were often families without the means or know-how to effectively challenge the results of the tests, which influenced decisions to take away their children.
Motherisk’s hair tests were also used in some criminal cases, including several cases in Ontario like Hayman’s where parents were convicted of feeding their children cocaine and other drugs.
In late 2014, after a series of stories in the Star exposed questions about the reliability of the Motherisk’s evidence, the Ontario government appointed retired judge Susan Lang to review the lab’s hair tests. The Hospital for Sick Children, which housed Motherisk, closed the lab, whose hair tests, Lang determined, were “inadequate and unreliable” for use in court.
Lang’s damning assessment carried profound implications. In Ontario, where the bulk of Motherisk’s work was concentrated, the government appointed Commissioner Judith Beaman to identify and review child protection cases that relied on lab’s evidence. The Ministry of the Attorney General searched for affected criminal cases, canvassing Crown law offices and obtaining information from the Motherisk lab, but Hayman’s case was missed.
Hayman didn’t know about the problems at Motherisk until the Star found an old newspaper article about her June 1998 trial, and tracked her down in 2018.
Like so many victims of Motherisk’s flawed forensics, Hayman had a tough life. She grew up poor, neglected and abused, and she fell into crack addiction. She said she loved her young son and tried her best.
In the spring of 1996, Hayman, then 28, took her four-year-old son to see a pediatrician at Sick Kids because of his hyperactivity and violent outbursts. Hayman told the doctor that she’d been buying the prescription drug Ritalin from a friend, and giving it to her son.
The doctor was concerned. She prescribed a much lower dose than what Hayman had been giving him, and recommended community supports. At a followup appointment at Sick Kids, the boy’s urine tested positive for cocaine. Sick Kids’s Motherisk lab tested samples of the boy’s hair. Hayman was charged in July 1996.
Former Motherisk manager Julia Klein and Dr. Gideon Koren, who founded Motherisk at Sick Kids in 1985, testified at Hayman’s trial. They told the court the levels of cocaine found in the boy’s hair were on par with adult addicts, and that it couldn’t have come from passive exposure to crack smoke.
Klein died in 2019. She previously told the Star that she couldn’t recall testifying in the case and could not answer questions about it. Koren, who retired from Sick Kids in 2015, did not respond to a request for comment for this story.
In her written submissions to the Court of Appeal, Crown lawyer Nakelsky said there was little information about how Motherisk tested the boy’s hair for cocaine in this case, but that “there is no evidence that confirmatory testing was done.”
Years later, Motherisk’s failure to confirm its results with a gold-standard test — a violation of international forensic standards — would be highlighted at the Ontario Court of Appeal, in the case of another Toronto mother found guilty of feeding her son cocaine. The appeal court’s 2014 decision to overturn Tamara Broomfield’s cocaine-related convictions cast doubt over the veracity of Motherisk’s evidence, the first in a chain of events that led Lang to discredit the lab’s hair tests.
Hayman testified at her trial that she never fed her son cocaine. She said she was always careful to keep her drugs away from the boy and tucked a towel under his door when she smoked at night.
However, in his 1998 ruling, Justice John Hamilton said this was not a case of “accidental exposure,” because the hair tests showed “sustained use over a three-month period.” (Hayman was also charged for giving her son Ritalin, but Hamilton acquitted her of those counts, finding that she had been forthcoming with doctors and had been trying to help him.)
Hayman was sentenced to the maximum jail term of two years less a day for feeding her son cocaine.
Her appeal lawyer James Lockyer first got involved in the case after her conviction in 1998. He successfully argued for a reduced sentence of nine months in jail, followed by probation. (Hayman initially appealed her conviction, but gave up that fight because she didn’t have the $3,000 it would cost to obtain a full trial transcript and consult an independent expert on the hair evidence.)
Lockyer, a veteran wrongful conviction lawyer, represented Broomfield in the 2014 appeal that blew the lid off Motherisk. When the Star informed him about the Hayman case in 2018, he vowed to help her clear her name.
On Monday, Lockyer praised the court for doing everything “they possibly could to remedy as best they could what Joyce has been through.”
In her written submissions, Nakelsky said Hayman’s case went unnoticed “because it did not fall within the time frame or purview” of the governmentcommissioned reviews of Motherisk. (Lang’s review assessed the reliability of Motherisk’s evidence from 2005 to 2015, while Beaman’s commission probed affected child protection cases.)
The Crown consented to reopening Hayman’s appeal and agreed that she should be acquitted of feeding her son cocaine.
In an affidavit filed in court last year in support of her appeal, Hayman said that when she was arrested in 1996 she was working at a department store, and had plans to marry her son’s father.
“I could have still made it.”
Her conviction made it hard to find work. She continued to struggle with her addiction and survived on social assistance. She lost custody of her son. When she gave birth to another son in 2003, she lost custody of him as well.
“The charges and the conviction took away all my self respect,” she said in the affidavit. “I do not think I have ever really recovered my spirit.”
An Ontario government committee that reviewed Hayman’s case has previously reviewed six other criminal convictions involving Motherisk’s hair tests. The government has refused to identify the cases reviewed and declined the Star’s request through freedom-of-information legislation for a copy of a report on the committee’s review. The Information and Privacy Commissioner dismissed the Star’s appeal in the case in 2019, saying the records are protected by solicitor-client privilege, and contain personal information.
When Hayman’s conviction came to light in 2018, the head of the Ontario Criminal Lawyers’ Association said it raised questions about the “legitimacy” of the government’s internal review. He urged the government to appoint an independent reviewer to broaden and make more transparent the search for and examination of affected convictions.
In an email on Monday, a spokesperson for the Ministry of the Attorney General reiterated the steps the government took in the wake of the Motherisk scandal to find affected criminal cases, and said any cases identified in the future will be reviewed.
Hayman’s case is also intertwined with another tentacle of the Motherisk scandal, related to possible problems, including inaccuracies, and undeclared conflicts of interest, in the vast body of published work by Koren. In 2019, Sick Kids announced a systematic review of papers Koren published in medical journals, amid a Star investigation that identified possible problems in more than 400 papers he co-authored.
One of those papers, which falsely states that Motherisk confirmed its results with gold-standard testing, appears to reference Hayman’s case. Published in 2000 in the journal Forensic Science International, the paper states that Motherisk’s evidence had been used in three criminal cases, including one in Ontario.
In 2019, the director of the government committee reviewing her conviction reached out to Koren to ask him to identify the Ontario case, according to Lockyer’s written submissions. Koren’s lawyer responded that “given the passage of time,” Koren has “no recollection of what case might be referred to in this article.” Lockyer said it is “presumably” Hayman’s case.
As Lang observed, Motherisk rarely confirmed its results with gold-standard testing until 2010, a decade after the paper was published.
The Star highlighted the falsehood in the paper again in 2019, noting that, four years after Lang’s report, it still stood uncorrected, polluting the scientific literature. At the time, the editor of Forensic Science International, Dr. Christian Jackowski, said the journal would be “looking into these issues,” but it appears no corrective action has been taken.
In an email last week, Jackowski, who is a forensic pathologist in Switzerland, said he was on call and therefore unable to review the case.
Sick Kids spokesperson Jessamine Luck said the hospital recently completed its internal review of Koren’s papers, and referred its findings to the research integrity office for further investigation. Luck said the hospital provided the Crown’s office with a list of criminal cases involving Motherisk’s evidence in 2015. But that list “was subject to specified limitations,” she said, including that the former lab manager who prepared the list joined Motherisk in 2005, and the lab didn’t track “tests that may be relevant to criminal cases.” She said the hospital “remains willing to assist as required.”
After Hayman learned about the problems at Motherisk in 2018, she tracked down her son, who is now in his 20s. They’ve spoken once by phone. She said the conversation, their first since the boy was 13, was awkward and emotional. Hayman said he asked her a lot of “serious questions” about the case, and told her about the challenges he’s faced.
She tried reaching out again, but he hasn’t taken her calls.
“I can’t push him to answer the phone,” she said. “It’s up to him now.”
Hayman attended the virtual court hearing on Monday at Lockyer’s office. She wore a pink scarf, her favourite colour. She dabbed her eyes with a tissue as the court delivered its ruling.
“Some of the things they were saying just brought back memories,” she said in an interview. “I’m very happy, but it really hasn’t sunk in.”
The Court of Appeal also granted Hayman’s request to lift the publication ban on her name, which was put in place when her case was reopened in 2019.
“In light of the wrongful nature of the conviction in this case, resting on what can only be described as faulty science, the least that can be done is to allow (Hayman) the dignity to have this matter corrected in the media,” Fairburn said, noting that Hayman was identified in news stories in the late 1990s.
“She deserves to hold her head high for the first time in a long time.”