Motherisk Commission lawyer urges review in New Brunswick, Nova Scotia

New Brunswick and Nova Scotia should proactively review child welfare cases that used discredited drug testing, according to the lead lawyer in Ontario's Motherisk Commission.

• Discredited drug testing used in Nova Scotia, New Brunswick
• Nova Scotia should stop hair-based drug tests, toxicologist says

​"I do think that kids and families should be given a chance to see if continuing connection is possible and whether continuing connection should have been kept in place in the first place," Lorne Glass told CBC News.

The commission will revisit 25 years worth of cases to make sure hair test results from the Motherisk lab at The Hospital for Sick Children in Toronto weren't given too much weight in court.

As many as 2,300 people in New Brunswick and Nova Scotia had samples tested at Motherisk between 1997 and 2015, a CBC News investigation has revealed.

Hundreds of people had at least one positive test result indicating use of alcohol or drugs, findings the hospital now admits could be unreliable.

While the Motherisk Commission reviews Ontario child protection cases dating back to 1990, that province has placed hundreds of adoptions on hold.

But New Brunswick and Nova Scotia aren't doing a similar, sweeping review.

Officials with both provinces say they will only review a closed case if a person or their lawyer makes a request.

'They don't want to relive those bad memories'

Glass said he can think of many reasons why parents may not want to come forward.

"Some people may be embarrassed by the situation that they had themselves in in the past and they don't want to go there again," he said.

"They don't want to re-live those bad memories."

He's asked children's aid agencies across Ontario to provide their "high-priority" cases, where a child was removed from his or her family on a permanent basis.

While adoptions are designed to be final, parents could be brought back together with their children through an openness agreement with the adoptive parents.

The commission will also offer children separated from their families the chance to come forward if they believe they were taken away from their parents or siblings unfairly.

"I think you're going to see some innovative procedures being tried by lawyers to try to help families get reunited if that's a possibility," Glass said.

He said he doesn't believe many judges placed undue weight on Motherisk testing.

"But you have to look at each and every case," he said.

Questioning the science

Glass, a veteran family lawyer in Toronto, saw Motherisk test results used "a lot" in cases that came across his desk.

Like many judges and lawyers, Glass said he had no concerns about Motherisk. He thought the tests were a "verifiable" way of assessing drug use.

Last April, Ontario told all child protection agencies to stop using hair testing from any lab "out of an abundance of caution," with questions arising about the science behind the tests.

There's no difference between the cases in Ontario or the cases in Nova Scotia. They're all relying on the exact same testing.- Kymberly Franklin

Despite the warning, New Brunswick and Nova Scotia continued to order tests from an Ontario-based lab called Dynacare. The lab says its testing is "robust," providing "high-quality analytical toxicology service for analysis of drugs-of-abuse in hair."

New Brunswick reversed its position and stopped using all hair testing as of March 1, citing concerns about the "overall reliability" of the tests.

Officials in Nova Scotia have started to question the testing too.

"Now that the science behind hair strand testing itself is coming into question, the department is considering the value it may offer to our clients and will be looking at alternative options," said Heather Fairbairn, a spokeswoman for the Department of Community Services, in a written statement on Monday.

She declined an interview request.

No different than Ontario

Halifax-based lawyer Kymberly Franklin said she doesn't agree with how Nova Scotia has handled the Motherisk situation.

"I find it very odd there's complete silence on the whole issue, given the severity of it and given the fact that Ontario has taken it very serious," Franklin said.

"There's no difference between the cases in Ontario or the cases in Nova Scotia. They're all relying on the exact same testing."

She's started reviewing her own past cases to see if anyone might be affected by faulty drug testing. At least one case comes to mind.

Franklin said the Nova Scotia government could do a better job publicizing the problems with Motherisk's testing.

She also suggested the provincial government could start looking through old legal aid cases to find out to people who may be affected.

Waiting to see what happens in Ontario isn't good enough, she said.

"I think in this case of Motherisk, there probably [are] children out there that were taken away for not good reasons," she said.

Better use of scientific evidence

In Toronto, Glass said he doesn't think the moratorium placed on hair testing will last forever.

He said he believes it will return as a way of being able to verify drug use to a court.

"Going forward, we're always going to see scientific evidence and our job is now to try to do a better job of making sure that it's verifiable and that we can trust it," Glass said.

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