A report reviewing a controversial drug-testing program shut down this year at Toronto's Hospital for Sick Children has found it was "inadequate and unreliable" in its use for child protection and criminal proceedings over a 10-year period.
Susan Lang, a retired appeal court justice who led the review of the Motherisk Drug Testing Laboratory, said the testing warrants a second review, adding that the province should appoint a commissioner to provide support to those affected by "the laboratory's flawed test results."
The review examined the use of the hair testing in criminal and child protection cases between 2005 and 2015.
Lang said the use of the hair-testing evidence, used "primarily for child protection purposes," has "serious implications for the fairness of those proceedings."
"A child's removal from parental care affects the fundamental relationship between child and parent, with serious consequences for both," she said.
"In those circumstances, it is imperative that evidence relied upon by child protection agencies in seeking the removal of children from parental care be both adequate and reliable."
Lang said between 2005 and 2015, 9,000 individuals tested positive, according to data provided by Sick Kids.
The program was reviewed before, and changes were made in 2010.
"In those years [between 2005 and 2010], the laboratory's analytical procedures remained flawed and continued to misinterpret and over-interpret its results," said Lang. "Despite extensive testing for child protection agencies, neither the laboratory nor the hospital appears to have appreciated that the testing was forensic in nature or that it was required to meet forensic standards."
She said that in most cases the lab's hair test results were only one piece of evidence available to assess protection concerns.
"However, there will be cases where flawed test results were given significant weight and may have had a material effect on the outcome in several ways, including by adversely reflecting on a parent's credibility."
Lang found that the laboratory "fell short" of international standards for forensics, adding that the hospital did not provide "meaningful oversight" of the laboratory.
Between 2005 and 2010, Lang said, the laboratory used a preliminary screening test that "specifically cautioned users about its limitations."
"Despite this caveat, the laboratory went on to represent that the test — preliminary test — could both identify and quantify drugs in hair," she said. "It could not."
James Lockyer from the Association in Defence of the Wrongly Convicted hopes those who feel they have been wronged will come forward.
"The idea that parents are not allowed to see their children, have custody of their children, have access to their children because of results coming out of Motherisk ... when it's based on unreliable results, an unreliable laboratory that wasn't being supervised but was acting under the auspices of the Hospital for Sick Children, is really troubling," he said.
The test was used in six criminal cases, according to Lockyer.
Province to appoint commissioner
Ontario Minister of Children and Youth Services Tracy MacCharles said the province will appoint a commissioner in the coming weeks to examine cases.
"Our government is deeply concerned by the findings of this review and we will be taking immediate action," she said.
"Our government recognizes how difficult the situation is for many people and the need for urgent and meaningful action."
MacCharles said her directive, issued in April to child protection agencies, to cease using the results of hair testing still stands.
She urged anyone who believes they were affected by the laboratory's testing to call 1-855-235-8932 to register their case. Through this hotline, individuals can also obtain counselling, effective immediately, she said.
MacCharles said the province will issue a detailed response to the report in the new year.
The NDP says it supports the call for a comprehensive review, saying the "negligence" uncovered in the review can shake peoples' confidence in getting justice.
Program shut down in spring
The hospital initially suspended the program's operations in March after a provincial review.
The program was shut down in April following questions about the reliability of its hair-testing method.
The hospital ultimately decided not to reinstate the program after questions and concerns were "further explored and validated."