Province should investigate whether faulty drug tests tore families apart: lawyer

Nova Scotia's Department of Community Services used faulty drug tests for years in hundreds of child protection cases, but the minister says the department will only review cases if families request it.

Recent N.S. Supreme Court decision questions work of Halifax toxicology lab

​As many as 380 people from Nova Scotia received a positive hair-strand drug or alcohol test at Motherisk between 1997 and 2015, results that are now considered unreliable. (Pavel Golovkin/Associated Press)

A senior lawyer with the Nova Scotia Human Rights Commission says the provincial government owes it to families to look into whether faulty drug tests have resulted in the unjust removal of their children.

Kymberly Franklin's comments come in the wake of a damning report last week into the work of Toronto's Motherisk lab. The report, issued by a commission set up by the Ontario government, found that test results based on now-discredited hair analysis had torn apart dozens of families in that province.

Nova Scotia's Department of Community Services also used Motherisk tests for years in hundreds of child protection cases to determine whether parents were using drugs.

"Not every case involving drug testing and Motherisk totally turns on that [drug testing], but I think there are enough out there to look into simply because it is a permanent thing," said Franklin.

Like Ontario, Nova Scotia stopped using the hair-based drug and alcohol testing in 2016 and went back to testing urine instead.

The Ontario commission reviewed more than 1,200 cases potentially impacted by the bad science dating back to 1990 to determine whether the courts placed too much weight on the results. It found 56 cases where vulnerable children were taken from their families based largely on the tests.

Unlike Ontario, Nova Scotia did not review cases potentially impacted unless people came forward.

Minister won't review all cases

Last week, Community Services Minister Kelly Regan said the department would only review individual cases if people came forward, and said no one has come forward since May 2016. 

"We would never make a decision about removal of child based simply on lab analysis," Regan said. "We have a number of tools we would use to make that determination."

Minister Kelly Regan says Community Services would only review individual cases if people came forward. (Craig Paisley/CBC)

However, Franklin said some Nova Scotia cases have indeed turned on drug testing results.

"They have taken steps to help ensure that children aren't wrongfully taken away from their parents, but for those people that have lost their children because of wrong drug testing, I think they're owed a duty to have those cases looked into," she said.

It takes money to challenge results

A CBC News investigation found as many as 380 Nova Scotians between 1997 and 2015 had at least one positive test for drugs or alcohol from the lab, which was found to be using unreliable methods.

Franklin said many people who are potentially affected don't have the resources to argue.

"Many of the people that are going through these proceedings don't have enough money to hire a lawyer and look into something like this," she said. "It's a lot of work and it takes a lot of background work. I think if I were working for government, in that capacity, I would be more concerned about what's going on."

For more than two decades, Motherisk performed flawed hair-strand tests on thousands of vulnerable families across Canada, influencing decisions in child protection cases that separated parents from their children and sometimes children from their siblings. (CBC)

After the problems with Motherisk came to light, Nova Scotia switched back to urinalysis for drug testing in child protection cases and some criminal cases. 

Concerns about N.S. toxicology lab

However, there are still problems with how Nova Scotia currently tests for drugs, as a recent court case outlines. Unlike Ontario, Nova Scotia does not have a forensic laboratory. Samples are sent to the Halifax toxicology lab of the Nova Scotia Health Authority overseen by Dr. Bassam Nassar.

"There's a big difference between just doing drug testing and doing it in a forensic manner," said Franklin. 

"There are extra safeguards in place to make sure the testing is proper and you don't get negative results when you have positive results and vice versa."

Franklin said even something like unknowingly touching a surface that had cocaine on it, like at a bar, could trigger a positive drug result.

Kymberly Franklin is the senior legal counsel for the Nova Scotia Human Rights Commission. (CBC)

"I mean, you could take 10 people off the street who had been out clubbing the night before, test them and I guarantee you some of them will test positive," she said.

"So if you don't have a forensic standard that will eliminate the casual contact that you probably don't even know about then you're going to have all kinds of positive tests when people are not actually, knowingly, engaging in using drugs or even being around them."

Court concludes results not reliable

In a Supreme Court of Nova Scotia decision two weeks ago, Justice Theresa Forgeron ruled the Halifax lab could not offer expertise in a child protection case because the lab was not designated as a forensic lab or subjected to external oversight, and it's not clear to what extent the lab adheres to international standards.

Based on that, Forgeron ruled Nassar could not be considered an expert witness and concluded Nassar's results were not reliable. 

Réjean Aucoin, the lawyer for the father in the child custody case, said the decision raises many questions.

"My concern is, do we have the highest level of monitoring and do we have the best testing facility, and ultimately are the tests 100 per cent reliable? That's the question that we all have to answer and that we all have to know."

The case centred around a custody battle of a nine-year-old girl.

According to the decision, the province's child services division had been involved with the family since 2006 because of concerns over "domestic violence, drug and alcohol use, criminal activity and inappropriate parenting." The girl was sent to live with her maternal grandfather last May and both parents were required to take drug tests and were allowed supervised visits.

The child's mother regained custody Nov. 3, but the father was still required to have supervision during visits. 

The Department of Community Services objected to the father's request for unsupervised access, saying he had tested positive for cocaine in three urine samples taken in April and July. The father challenged the reliability of the test results and the judge in the case agreed.

Ruling could have significant repercussions 

The Community Services Department has the option to appeal the decision but refused to tell CBC News whether it intended to do so, saying it would not comment on a case before the courts and it was still reviewing the decision. 

Aucoin said the decision could have impact on any case involving child custody or criminal drug testing.

"Oh, absolutely. Until the court of appeal decides this case, it affects all of their cases," he said. 

"It's an important case because we need to know if this lab can provide results in legal settings, that's the ultimate question."

About the Author

Cassie Williams

Reporter/Editor

Seasick marine biologist, turned journalist. I live in Halifax.