Motherisk hair drug tests should be reviewed in Nova Scotia, says lawyer

Hair samples used as evidence of drug abuse in dozens of open child protection cases in Nova Scotia should be re-examined, a lawyer says, because the Toronto lab that tested the samples is under review for using questionable methods.

Drug test of father showed cocaine exposure, but test from 2nd lab was negative

Halifax-based lawyer Kymberly Franklin worked as a family lawyer in Nova Scotia representing a client in a custody case where Motherisk drug tests were used. (CBC)

Hair samples used as evidence of drug and alcohol abuse in dozens of open child protection cases in Nova Scotia should be re-examined, a lawyer says, because the Toronto lab that tested the samples is under review for using questionable methods.

The Hospital for Sick Children's Motherisk laboratory, a Toronto-based drug testing lab, was shut down in April following an investigation by the Toronto Star.

Ontario's attorney general has ordered a wide-ranging review looking into the reliability of the lab's methods for hair strand drug and alcohol testing.

The Ontario review includes hair test results, used as evidence in child protection and criminal proceedings in the province, between 2005 and 2015. Children's aid societies in Ontario have been told not to use results provided by the lab.

The Nova Scotia government has not issued a similar directive in the province, where there are 49 open child protection cases that are using the lab tests as evidence.

"It's a very serious issue to take a child away from its family, and it's permanent," said Kymberly Franklin, a Halifax-based lawyer.

"If they're going to rely on test results, then I think they need to be as certain as they can before they rely on those test results."

​Franklin was the lawyer in a Cape Breton case last year where the court was presented with drug test results from her client's hair samples. Those results from the Motherisk laboratory suggested the father was using cocaine or was around people using the drug over a two-year period prior to the custody case.

Testimony in the case painted a different picture of her client, she said.

2nd test negative for drug use

"The guy was living like a hermit," Franklin said. "He wasn't around that many people. The actual people that he had, sort of, in his life, were all brought in as witnesses.

"They all testified to the same type of lifestyle, he wasn't out partying, he wasn't involved with anyone that he knew of that was a user of cocaine."

Franklin had her client's hair tested again, this time by an Ohio-based lab, which found no evidence of drug use. She submitted those results to the court, but said it was an expensive process that not everyone could afford.

In the end, Franklin's client was able to keep custody of his child. The judge also said the Ontario review on the hair strand analysis methodology did not factor into her decision to award custody.

The experience is causing Franklin to call for retests on hair samples handled by the Motherisk lab.

"If you have a number of positive tests, whether it be Motherisk or any other lab, pretty much you're looking at permanent care for a child," she said.

Nova Scotia's Department of Community Services said it was watching the Ontario case as it unfolds.

"It would not be appropriate for the department to comment on Motherisk while it's under investigation in Ontario," said department spokeswoman Lori Errington.

'Piece of the puzzle'

Shelley Hounsell-Gray, a Dartmouth-based legal aid lawyer, doesn't think hair drug testing in child protection cases is a big issue.

Shelley Hounsell-Gray, a legal aid lawyer in Dartmouth, doesn't think hair drug testing in child protection cases is a big issue. (CBC)
She said positive hair drug tests from Motherisk or any other lab would be "one piece of the puzzle when we look at evidence of parenting, and if the parent is able to protect the child from harm."

"It's never just one piece of information the court would rely on, there's many other factors of parenting ability and an ability to protect a child from harm," she said.

But Hounsell-Gray said the information that's come to light about the Toronto lab has caused her to think about how she scrutinizes test results.

"For example, if we get a report back and it's not consistent with what my client's telling me, then I'm going to ask for other testing methods or retest, so that we're able to have an accurate account of what's happening," she said.


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