N.S. Court of Appeal overturns earlier decision on drug tests

The Nova Scotia Court of Appeal ruled Friday that a father's results from drug tests can be admitted as evidence in a child protection case, overturning a lower court ruling.

'In this case, the Court of Appeal ruled that international standards had been met,' lawyer says

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)

The Nova Scotia Court of Appeal has overturned a lower court decision that ruled results from drug tests from a Queen Elizabeth II Health Sciences Centre lab could not be admitted as evidence in a child protection case because the lab wasn't designated a forensic lab.

"As a result, the tests that were performed on my client will now be admissible in the child protection case," Réjean Aucoin, the lawyer representing the father in the child protection case, said in an interview Friday.

Expert's results were not admissible

In February, Nova Scotia Supreme Court Justice Theresa Forgeron ruled the lab was not subjected to external oversight, and that it was not clear to what extent it adheres to international standards.

Fred and Julie, who cannot be identified for legal reasons, had their son taken away from them because of faulty Motherisk hair testing. (Vaughan Merchant/Canadian Press)

Based on that, she ruled that that Dr. Bassam Nassar, the lab's director, could not be considered an expert witness and found that his results were not admissible.

"In this case, the Court of Appeal ruled that international standards had been met when the urine samples were tested at the QEII lab," Aucoin said.

In its decision, the Appeal Court said Nassar's evidence was "more than enough" to qualify him as an expert capable of giving an opinion on the presence of cocaine metabolites in the father's urine samples.

Nova Scotia's Department of Community Services appealed Forgeron's decision in June.

Important decision for Nova Scotia

Aucoin called the Appeal Court's decision a very important one for this province.

"Because had the Court of Appeal decided otherwise … that would have meant that this lab could not be used for drug testing on clients … in children's aid cases," he said.

"So now, the Minister of Community Services, or children's aid as it's locally called, can go back and send the tests back to the QEII for testing, so they don't have to get them tested in another lab in Ontario, as they're presently doing in some other cases."

Letters and internal emails received by the New Brunswick government show it was warned about flawed drug tests. (Karissa Donkin/CBC)

Both future and past cases could have been affected.

"That would have meant that a lot of older cases might have had to be reviewed as in the Motherisk decision in Ontario," Aucoin said.

Faulty Motherisk lab results

Earlier this year, a damning report was released about the work of Toronto's Motherisk lab, which found that test results based on faulty hair analysis had torn apart dozens of families in Ontario.

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

Both Ontario and Nova Scotia stopped using hair-based drug and alcohol testing in 2016 and went back to testing urine.

The case appealed centred around the custody of a nine-year-old girl, who has been sent to live with her maternal grandfather last year.

Child protection services had been involved with the family since 2006 due to domestic violence, drug and alcohol use, criminal activity and questionable parenting. They required the parents to take drug tests and allowed supervised visits.

The child's mother regained custody last November, but the father was still required to have supervised visits.

The Department of Community Services opposed the father's quest for unsupervised visits because they said he had tested positive for cocaine six times last year. The father challenged the reliability of the tests in Supreme Court.

About the Author

Sherri Borden Colley

Reporter

Sherri Borden Colley has been a reporter for more than 20 years. Many of the stories she writes are about social justice, race and culture, human rights and the courts. To get in touch with Sherri email sherri.borden.colley@cbc.ca