Four years ago, Yvonne Marchand lost custody of her daughter.
Even though child services found no proof that she was a negligent parent, that didn't count for much against the overwhelmingly positive results from a hair test. The lab results said she was abusing alcohol on a regular basis and in enormous quantities.
The test results had all the trappings of credible forensic science, and was presented by a technician from the Motherisk Drug Testing Laboratory at Toronto's Sick Kids Hospital, Canada's foremost children's hospital.
"I told them they were wrong, but they didn't believe me. Nobody would listen," Marchand recalls.
Motherisk hair test results indicated that Marchand had been downing 48 drinks a day, for 90 days. "If you do the math, I would have died drinking that much" Marchand says. "There's no way I could function."
The court disagreed, and determined Marchand was unfit to have custody of her daughter.
"It's just so sad" Marchand says, remembering that day. "I don't even know how to describe the feeling. I wouldn't wish it on anybody – it's a terrible thing to go through."
As it turns out, Marchand wasn't alone. For over a decade, scores of Canadians received unsound hair test results from Motherisk. Their tests were used in some 16,000 child protection cases as well as six criminal cases that culminated in convictions, although it's unclear how many of those tests were faulty.
Since its inception in 1985, Motherisk's purpose was to conduct research and teach the medical community and general public about potential dangers posed to a fetus or infant from exposure to drugs, chemicals, diseases, radiation and environmental agents.
"Scientific evidence is often complicated and cloaked in a belief that reputable and experienced doctors providing expert evidence in court can't be wrong. The public too easily accepts these experts at face value."
But by the late 1990's, increasing numbers of child protection agencies were approaching Motherisk with requests to test hair samples, looking to prove that parents were impaired by drugs or alcohol. By the early 2000s, it was advertising nation-wide. As of last year, it was testing approximately 2,000 hair samples each year for child protection agencies.
When a person drinks or takes drugs, those substances produce metabolites, some of which are stored in a person's hair follicle. The metabolites stay in each individual hair strand as they grow. The virtue of hair-testing over other drug tests like urine samples or blood tests, is that it has the potential to show drug use over a period of time, and can also relay information about the amount of drugs or alcohol consumed.
A positive test could be sufficient grounds to separate a child from their parent or parents, and place them in foster care.
Motherisk was operating like a forensic lab, even though it had never received accreditation to do so. Dr. Gideon Koren, the lab's founder, and Joey Gareri, the lab's director since 2006, were not qualified in forensic science. The fact Motherisk lacked forensic accreditation didn't seem to hurt its evidence's admissibility in court.
The most obvious difference between a 'forensic' test and a 'clinical' test is that the former is used for legal purposes , while a clinical test is solely for research. Forensic science has its own standardized framework and methodology, which Motherisk completely disregarded, according to the report.
The magnitude of that mess is becoming increasingly clear.
Photo via Facebook.
Motherisk flew relatively under the radar until November 2014, when Toronto's infamous "crack mom" Tamara Broomsfield was exonerated from charges alleging she regularly fed cocaine to her two-year-old son, Malique. Broomsfield was convicted in 2009 after Koren testified that hair test results from Malique indicated he had been regularly ingesting high doses of cocaine, equivalent to what an adult addict takes.
When Broomsfield appealed the one charge — she was also found guilty of other child abuse charges — the court concluded that there was a "genuine controversy" about Motherisk's practices, and expressed grave concern over the program's methodology and scientific integrity.
The child abuse conviction was overturned.
"No forensic toxicology laboratory in the world uses ELISA testing the way [Motherisk] did."
Toronto criminal defence lawyer Daniel Brown, who had tried to reopen Broomsfield's case in 2010, told the Toronto Star, "everyone should be concerned that faulty science helped convict [her.]
"Scientific evidence is often complicated and cloaked in a belief that reputable and experienced doctors providing expert evidence in court can't be wrong," Brown said. "The public too easily accepts these experts at face value."
Marchand says she was on her way to work in 2014 when she read about Broomsfield's exoneration in the paper. What caught Marchand's eye was that Motherisk's credibility was finally being questioned by the medical community.
Some parents, like Marchand, pursued additional hair tests from independent labs in a bid to fight their cases. Marchand's second test showed up as negative. But, because the lab technician couldn't testify as an expert witness, the second test was thrown out by the court.
Marchand says the entire process was very frustrating. She says someone should have noticed a pattern when parents repeatedly presented hair test results from independent labs which completely contradicted Motherisk results. Alarm bells should have gone off sooner.
Marchand's tests — the ones that showed her drinking a staggering amount of alcohol each day — came after a protracted child custody battle between Marchand and her former partner led to him filing numerous reports with Ontario's child protection agency, claiming she was an alcoholic and unfit to be a mother. He called the agency five times in total. The first four times, the agency found his allegations unsubstantiated. When he called a fifth time, the agency sent Marchand to Motherisk to have a hair tested.
After Broomsfield was exonerated, the Toronto Star launched their own investigation into Motherisk, which in turn prompted the province to act. Ontario tasked Susan Lang, a retired appeal court justice, to conduct an independent review.
"The loss of a child is a very extreme and devastating result for these affected families. The harm, the anxiety, the depression…that spreads throughout the entire family."
The investigation arrived at damning conclusions. The 366-page report — a meticulous examination of every aspect of Motherisk — was released in December. Lang concluded that results from Motherisk hair tests, like Marchand's, were "inadequate", "unreliable", and had "serious implications for the fairness of those proceedings." At the urging of Lang, a commission will review the thousands of child-protection cases which relied on hair testing results from Motherisk.
Justice Lang's findings have thrown the foster care system and child protection services into total disarray.
On Monday, the Ontario Association of Children's Aid Societies announced that up to 300 adoption cases were being put on hold while those cases are reviewed, leaving adoptive parents, foster families and adoptees in limbo.
Lang found that the lab was regularly relying on enzyme-linked immunosorbent assay (ELISA) test results — those tests, however, are primarily for screening. It can tell you if a hair sample is negative, but it can't tell you if a hair sample is positive. To determine if a sample is positive, you have to carry out a second test using another method.
According to the review, Motherisk communicated all 'maybe' results as 'positives' to their clients from child protection agencies, instead of carrying out a follow up test.
"No forensic toxicology laboratory in the world uses ELISA testing the way MTDL [Motherisk] did," the report states.
They also found that Motherisk lab technicians failed to routinely wash hair samples before analysis, again failing to meet internationally recognized forensic toxicology standards.
Lang and her counsel were also troubled to discover that there were "no written records of any kind….calling into question the reliability and standardization of all its testing procedures." They also found "significant reporting anomalies or errors" when they looked through randomly selected case files.
The Children's Aid Society, one of the largest child protection services companies in Canada, declined to comment on the findings of the review.
Marchand is the lead plaintiff in a class action suit, which is suing Toronto's Hospital for Sick Kids, Dr Gideon Koren and Joey Gareri.
"I try to do special stuff so we can have memories. Going to the Park. Disney on Ice. She really likes the Frozen movie so sometimes we just stay in and watch that."
Matet Nebres, who directs communications at SickKids, wrote in a statement "We extend our apologies to families who may have been impacted and we acknowledge responsibility for the Hospital's role." Nebres says that SickKids undertook its own internal investigation of Motherisk, and came to similarly damning conclusions. "In the wake of our internal investigation and Justice Lang's review, SickKids has reflected deeply on its oversight structure and mechanisms, and quality controls systems."
"We are resolved to learn from these events which we know have shaken the public's trust," Nebres added.
SickKids' internal investigation unearthed "significant and completely unacceptable issues" regarding Motherisk. The hospital shuttered the program in March 2015.
Rob Gain, an attorney with Koskie Minsky LLP, the firm which is handling the class action suit, says the failings of Motherisk has "poisoned" child protection proceedings.
"The loss of a child is a very extreme and devastating result for these affected families," Gain says. "The harm, the anxiety, the depression… that spreads throughout the entire family."
"They just never believe us. They tell the public to have confidence, and so they do. It's a big mess."
Some communities may have been hit harder than others. Jonathan Rudin, who directs Aboriginal Legal Services of Toronto, believes that at least a quarter of those affected by Motherisk's failings were Aboriginal or First Nation Families, primarily because those children are "dramatically overrepresented" in Ontario's child welfare system.
Rudin says that his firm has worked with many individuals who have had positive hair strands from Motherisk. With the launch of the Independent Motherisk Commission, Rudin says his firm is waiting to see "how it's going to roll out" and is hoping to assist any affected clients in that process. "This is a failing of massive proportions" Rudin says. "Lots of people dropped the ball with Motherisk. Nobody bothered to ask "How do they do this stuff?" Everyone assumed they knew what they were doing, in part because Toronto's hospital for Sick Kids is such a world renowned institution."
That said, this isn't the first time that a program at Toronto's Hospital for Sick Kids has come under fire, or that Koren has been reprimanded by the medical community. An inquiry into the forensic pathology unit by Justice Stephen Goudge in 2008 drew similarly damning conclusions.
Photo via Facebook
Marchand feels like Motherisk's failings were shielded by the credibility of SickKids and finds it hard to believe they didn't know what was going on. She says that, when the quantity of alcohol cited in her test was so extreme, that should have been a red flag. "They just never believe us," Marchand says. "They tell the public to have confidence, and so they do. It's a big mess."
It's still unclear how many Motherisk tests were actually false, or how many convictions or child custody decisions — which may have relied on other evidence — were determined by the tests.
Moreover, there's the theory of the "CSI effect" which contends that the public are easily seduced by the presentation of forensic evidence in a case, due in part to the popularity of crime shows such as CSI. "There's an aura of science to it," says Rudin. "It becomes very persuasive."
Marchand's daughter is now six years old. Her ex husband continues to have custody, thanks to the Motherisk test, but she's allowed to visit on occasion.
"It's hard to go from being a full time parent to not seeing her," Marchand says. She was permitted to have supervised access to her daughter at first. Now she sees her for six hours total each week, unsupervised: one hour on Wednesday evening and five hours on Sunday.
"We go to movies, or go bowling," Marchand says. "I try to do special stuff so we can have memories. Going to the Park. Disney on Ice. She really likes the Frozen movie so sometimes we just stay in and watch that." Holidays, like Christmas, are especially hard.
"I just give her a kiss, and send her off," Marchand says.
Follow Tess Owen on Twitter: @misstessowen