Friday, October 20, 2017

Motherisk: Part 3 of 3: Toronto Star/CBC investigation: Reporter Rachel Mendleson zeroes in on the brutal cost of Motherisk's flawed lab processes in Part 3: 'Tarred by the test results."..."I just wanted to crawl in a hole and never come out... Angela is one of the parents who disputed results of Motherisk’s tests. An analysis of 50 cases sheds light on how people often suffering from poverty or other disadvantages were tarred by test results indicating they were drinkers or drug users."..."Mental health concerns, questions about parenting ability and unstable housing were among the factors in the case of Angela, an Ontario mother who was labelled a chronic alcohol abuser by Motherisk in 2009, during her battle to regain custody of her two daughters. The results shocked Angela (not her real name) who said in an interview that she was “never a drinker” and “adamantly denied” the findings of several subsequent Motherisk hair tests, which returned the same result. “I always swore when I had my kids that I would be there for everything . . . It almost killed me because there was nothing I could do, and it wasn’t my choice not to be there,” she said. “I just wanted to crawl in a hole and never come out.” Access to her girls, who were 9 and 13 when they were removed, varied as they bounced in and out of care. During the worst of it, Angela’s younger daughter, who we are calling Jenna, estimates she was shuffled among nine placements over the course of a year. “I tried not to unpack my bags if I didn’t have to because a lot of the time when we did move we didn’t have notice that we were moving,” Jenna said. “Because of how often I moved, I didn’t feel like anyone wanted me. I missed feeling wanted.” Their ordeal finally ended three years later, in early 2012, after Angela presented competing evidence — three months of negative results from an ankle bracelet monitor that measures alcohol consumption through the skin, performed during the same 90 days as a Motherisk hair test."


STORY: Tarred by the test results," by reporter Rachel Mendleson, published by the Toronto Star on October 19, 2017. (Data analysis by Andrew Bailey);

GIST: "We analyzed 42 child protection cases across the country that involved Motherisk’s flawed hair-testing evidence. In 93% of those cases, the results were positive for drugs or alcohol. Only 14% of adults fighting for custody presented competing forensic evidence. Until the scandal broke in late 2014, Motherisk’s results were accepted in every case. In an Elliot Lake, Ont., courtroom in 2011, a woman fighting for custody of her step-grandchild tried to convince the judge that Motherisk’s results were bogus. The Children’s Aid Society of Algoma had submitted Motherisk’s tests of the woman’s hair, which were positive for cocaine and opioids, as proof she had recently used drugs. The woman, identified by the court as L.G., argued the lab must have miscalculated because she had been clean for several months. The judge was not swayed. “Ms. L.G.’s explanation for the hair follicle testing and the results of those tests is, in part, to challenge the very science of that hair testing,” the judge wrote in his decision. “Hair follicle testing occurs with regular frequency in the Province of Ontario and is relied upon by this court and other courts throughout the province. There is no evidence before this court . . . that would effectively challenge that science.” The case is one of 50 child protection proceedings involving drug and alcohol hair-strand testing that were reviewed in a Star/CBC investigation into the largely hidden corner of the justice system where the Motherisk scandal festered. For more than two decades, in family courts across Canada, judges accepted Motherisk’s faulty evidence, praised the lab’s untrained experts and disbelieved parents who lacked the means to adequately challenge damning results that influenced decisions that tore their families apart. The hair-testing in eight of the cases was conducted at private labs; 42 cases involving 65 children relied in some part on hair tests performed at Motherisk. Ninety-three per cent of those 42 cases included at least one positive result. Although an adult seeking custody denied the positive results in 67 per cent of the cases, only 14 per cent presented competing forensic evidence, such as urine screens or hair tests performed at a private lab. Almost always, judges favoured the hair tests from the Hospital for Sick Children. Motherisk’s results were accepted in all 34 cases that predated the start of Motherisk controversy, in late 2014. Motherisk’s hair tests, which were deemed “inadequate and unreliable” for use in court by a government-commissioned review in December 2015, informed everything from orders mandating the supervision of children by authorities to decisions making children Crown wards without access to their parents. Along the way, positive results eroded the credibility of parents who disagreed with the findings. “One of the difficulties with this kind of evidence is that it has a corrosive effect through the whole case,” said Rollie Thompson, a family law professor at Dalhousie University and former head of Dalhousie Legal Aid, where he represented parents in child protection cases. “It affects judgments that the ministry makes about what cases it goes ahead with and how hard they push them. It affects how much the legal aid lawyer trusts the parents,” he said. “That’s the insidious effect of this stuff.” As the Star has previously reported, Sick Kids missed the warning signs with Motherisk, a national tragedy that has left governments across the country struggling to right wrongs that can’t be undone. This is how Motherisk’s flawed forensics infiltrated the courts. For several years, a woman we’re calling Angela had limited access so her two daughters. partly because a Motherisk test labelled her a chronic drinker. Eventually she presented competing evidence. The Star/CBC review is based primarily on publicly available court decisions that have been sanitized to remove identifying information and posted online. The analysis captures only a sliver of the thousands of child protection cases involving Motherisk because many decisions and final orders in child protection proceedings are not publicly available. But the sampling is a window into the socio-economic challenges facing families who submitted to hair testing in their fight to keep their kids. Ninety per cent of case histories included some mention of at least two of the following: substance abuse; domestic violence; poverty/unemployment; criminal/police involvement; and prior involvement with child protection. Four of those factors were mentioned in 54 per cent of cases. “It’s not like ... we (were) randomly going through Rosedale and pulling people’s hair out” for testing, says Nicholas Bala, a family law expert at Queen’s University, referring to the affluent Toronto neighbourhood. (Bala was consulted in the review of Motherisk by retired judge Susan Lang, who was appointed by Queen’s Park in late 2014 and probed a decade’s worth of the lab’s hair tests.) These disadvantaged parents faced a formidable opponent in Motherisk. Trading on the reputation of Sick Kids, the lab actively marketed its hair tests, offering preferential rates to child protection agencies and holding speaking engagements across the country. Lab manager Joey Gareri also gave presentations to members of the legal community, according to his C.V., obtained by the Star/CBC, which lists a crime conference for Ontario Provincial Police in Orillia in 2007, a “lunch and learn” for family lawyers in Durham in 2011 and a seminar on drug testing at the Ontario Court of Justice in Thunder Bay in 2013. “Child welfare agencies, hospitals and law firms throughout North America rely on Motherisk’s testing expertise, technology and support,” stated a promotional brochure. The brochure, which was distributed to children’s aid societies in Ontario, boasts that Motherisk’s “world renowned team” has “extensive experience as expert witnesses in family and criminal court.”... Phyllis Lovell, executive director at Bruce Grey Child & Family Services in Owen Sound, said Motherisk’s hair tests were seen by children’s aid workers as an objective factor.  Unlike urine or blood tests, which can only detect short-term drug and alcohol use, Motherisk’s hair tests held the promise of tracking longer-term consumption. Because hair grows at a rate of roughly one centimetre per month, the lab said its tests could also pinpoint the specific timeframe. (Although some experts argue that the science of drug and alcohol hair testing is valid, Lang found Motherisk’s methods fell far below international forensic standards.) When faced with making tough calls about how to keep children safe, children’s aid workers saw the hair tests as an objective factor, Lovell said. “We thought the science was reliable and we particularly thought that Motherisk, Sick Kids hospital, was an institution, was a service that we could absolutely count on,” she said. “We trusted the hospital and the (lab) and we invited parents to trust us. It turns out that that trust was misplaced.” It is likely no coincidence that the Motherisk controversy was sparked by questions raised in a criminal case as opposed to family court, where risk to children is assessed on the balance of probabilities rather than proof beyond a reasonable doubt. (Criminal proceedings are also much more public.) In family court, Motherisk’s results often went unchallenged, and were almost as likely to be relayed to the court by social workers, as opposed to the lab’s experts, who only testified in 45 per cent of cases. (Forty-three per cent of cases did not include testimony from a Motherisk expert, while the available documents in the remaining 12 per cent did not specify how the lab’s results were presented.) In our review, the Motherisk expert who testified most often was lab manager Joey Gareri, despite the fact that he had no forensic training, as Lang found. Yet Gareri impressed a Superior Court judge in Cobourg in 2008, who praised him for being “competent, professional and understandable.” He also won esteem in the Supreme Court of Nova Scotia in 2014, where the judge found him to be “credible and reliable” and “knowledgeable about the subject matter.” Former Motherisk lab manager Joey Gareri in Toronto. Gareri is a defendant in at least 11 lawsuits related to Motherisk.  When interviewed by Lang, Gareri said that he “learned ‘on the job’ on a job that you should not be learning on,” according to her report, but he continued testifying in court, appearing in two child protection proceedings in Sydney, N.S., in January 2015, the Star/CBC found. Gareri, Sick Kids and Motherisk founder and longtime director Dr. Gideon Koren are named as defendants in at least 11 individual lawsuits related to the problems at Motherisk. Citing ongoing litigation, Gareri declined to answer questions for this story, telling a reporter who found him at his Scarborough home: “I’m sorry. It’s got to go through the legal system. I don’t have any comment.” In the face of a positive hair test from Motherisk, judges in several cases remarked that the onus was on the parent to present competing evidence. However, in the vast majority of child protection proceedings, Motherisk’s tests were “effectively impossible to challenge,” says Bala. Those who did succeed in countering the lab’s results did not emerge unscathed. Mental health concerns, questions about parenting ability and unstable housing were among the factors in the case of Angela, an Ontario mother who was labelled a chronic alcohol abuser by Motherisk in 2009, during her battle to regain custody of her two daughters. The results shocked Angela (not her real name) who said in an interview that she was “never a drinker” and “adamantly denied” the findings of several subsequent Motherisk hair tests, which returned the same result. “I always swore when I had my kids that I would be there for everything . . . It almost killed me because there was nothing I could do, and it wasn’t my choice not to be there,” she said. “I just wanted to crawl in a hole and never come out.” Access to her girls, who were 9 and 13 when they were removed, varied as they bounced in and out of care. During the worst of it, Angela’s younger daughter, who we are calling Jenna, estimates she was shuffled among nine placements over the course of a year. “I tried not to unpack my bags if I didn’t have to because a lot of the time when we did move we didn’t have notice that we were moving,” Jenna said. “Because of how often I moved, I didn’t feel like anyone wanted me. I missed feeling wanted.” Their ordeal finally ended three years later, in early 2012, after Angela presented competing evidence — three months of negative results from an ankle bracelet monitor that measures alcohol consumption through the skin, performed during the same 90 days as a Motherisk hair test. In a letter to Angela’s lawyer, Gareri indicated that in this instance, Motherisk had done two types of alcohol hair testing. While the results of the first test, called FAEE, suggested “binge alcohol consumption,” this was ruled out by the second hair test, called EtG, which was negative, as well as the negative ankle monitor results. “In the absence of any reliable additional supportive evidence (e.g. eye-witness accounts, smell of alcohol on breath, etc.); provide no clear reliable evidence of alcohol use during the tested time period,” he wrote. He acknowledged the results of FAEE tests “can be falsely elevated in hair by frequent use of ethanol-containing hair-care products.” Angela suspects this happened in her case. Three days later, the children’s aid society ended its involvement. By the time Angela cleared her name, her oldest daughter had turned 17 and already returned to her mom’s, after she learned she was pregnant while in care. Her youngest daughter, then 13, came home with crippling anxiety. Tannis Toohey for the Toronto Star. By then, Angela’s oldest daughter had turned 17 and already returned to her mom’s, after she learned she was pregnant while in care. Jenna, then 13, came home with crippling anxiety.


If Angela would go to the laundry room to have a cigarette, Jenna would be on the other side of the door, waiting for her to finish. When her mom used the bathroom, she would sit on the stairs nearby. For months, she refused to leave the house. Jenna, whose family is among those who have launched lawsuits, said: “I fell behind in school and I fell behind socially, which is why now I have social anxiety and social phobia. I can’t hold a job in a public place.” Nearly two years after Lang’s report confirmed the problems at Motherisk, holes in the system remain. The Ontario government is planning legislation this fall that would require labs that perform forensic testing to have forensic accreditation to make sure the evidence meets international standards. But no province currently has such legislation in place, a national survey of governments across Canada by the Star/CBC found. Some form of drug or alcohol testing in child protection continues in at least seven provinces. Hair testing is still used in Alberta and Manitoba, neither of which relied on Motherisk. In Manitoba, a spokesperson said drug testing labs “must be certified by the U.S. Department of Health and Human Services,” but did not clarify whether they were forensically accredited. A spokesperson for Alberta’s Children’s Services Ministry said labs that perform the hair tests “adhere to the standards” of the U.S. Substance Abuse and Mental Health Services Administration (SAMHSA), and the Department of Transportation, but did not respond to further questions about whether they have forensic accreditation. Following inquiries from the Star/CBC, another ministry official, Aaron Manton, said in an email late Thursday that, “Alberta is planning to phase out the use of hair testing in child protection cases.” "We will be communicating this to our service delivery regions in the coming weeks," Manton said. In Ontario, the way the child welfare system currently intersects with the medical system and the courts makes it “complex” for some agencies to end the practice of drug and alcohol testing, according to Caroline Newton, spokesperson for the Ontario Association of Children’s Aid Societies (OACAS). But Newton said the OACAS recognizes there are “serious concerns” about the reliability of the testing being done in Ontario labs, and is supporting “all efforts . . . to end the practice of overreliance on forensic testing.” Lang said she hopes the central message in her report about the dangers of flawed forensics “resonates all over Canada.” “A lot of people did not see family law as forensic work. They just (thought), ‘Oh if it’s probably so, then fair enough,’” she said. “Well, that isn’t good enough.”"

The entire story can be found at:
http://projects.thestar.com/motherisk/part-3/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Motherisk: Part 2 of 3; Toronto Star/CBC investigation: 'Rejected in Colorado.' Reporter Rachel Mendleson's disturbing revelation: "Motherisk hair test rejected by judge - 22 years before scandal blew up. A Motherisk expert testified for the defence in a Colorado murder case. The judge mocked the lab's processes. But the case remained virtually unknown in Ontario until now."..." "Twenty-two years before controversy shuttered the Motherisk lab, before its hair-strand drug tests were deemed unreliable, before the outcomes of thousands of child protection cases were called into question, a Colorado court threw out Motherisk’s evidence in a hearing that foretold the crisis that is now playing out across Canada. The same failings identified in an independent review of Motherisk in Ontario in 2015 were laid bare in the American criminal case in 1993. In a pretrial hearing in a murder case in Adams County, Colo., the hair-testing evidence presented by former Motherisk lab manager Julia Klein was blasted by the prosecutor as being so deficient that it gave “legitimate researchers in this area a bad name.” The judge who rejected Motherisk’s evidence compared the lab’s process to one in which the scientist “shot the arrow in the air, let it land, and then went and painted the target around the arrow.” The Hospital for Sick Children’s Motherisk lab was criticized by the prosecutor, the judge and two scientists, including the other witness for the defence, for failing to verify preliminary results with a confirmation test; not following standard operating procedures; the fact that it was a clinical lab operating as a forensic lab; and failing to meet the high bar for evidence to be accepted in court. All of these shortcomings were identified more than two decades later by retired judge Susan Lang, who was appointed by the Ontario government to review Motherisk after the Star reported on questions about the reliability of the lab’s hair-testing evidence."


 PASSAGE OF THE DAY: (HL):  "In a short oral ruling, Judge Donald Marshall said he would not allow the hair-testing evidence prepared by Klein or Selavka, in part, because “no confirmation test was run by either expert.” He reserved the harshest criticism for Motherisk, comparing the scientific process to archery to make his point. As Marshall put it, whereas Selavka had shot his arrow and then expanded the bull’s-eye “so that the result could be declared a success,” Klein had simply “shot the arrow in the air, let it land, and then went and painted the target around the arrow.”

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STORY: 'Rejected in Colorado' by Reporter Rachel Mendleson as part of a Toronto Star/CBC investigation, published by The Toronto Star on October 19, 2017.

GIST:  "Twenty-two years before controversy shuttered the Motherisk lab, before its hair-strand drug tests were deemed unreliable, before the outcomes of thousands of child protection cases were called into question, a Colorado court threw out Motherisk’s evidence in a hearing that foretold the crisis that is now playing out across Canada. The same failings identified in an independent review of Motherisk in Ontario in 2015 were laid bare in the American criminal case in 1993. In a pretrial hearing in a murder case in Adams County, Colo., the hair-testing evidence presented by former Motherisk lab manager Julia Klein was blasted by the prosecutor as being so deficient that it gave “legitimate researchers in this area a bad name.” The judge who rejected Motherisk’s evidence compared the lab’s process to one in which the scientist “shot the arrow in the air, let it land, and then went and painted the target around the arrow.” The Hospital for Sick Children’s Motherisk lab was criticized by the prosecutor, the judge and two scientists, including the other witness for the defence, for failing to verify preliminary results with a confirmation test; not following standard operating procedures; the fact that it was a clinical lab operating as a forensic lab; and failing to meet the high bar for evidence to be accepted in court. All of these shortcomings were identified more than two decades later by retired judge Susan Lang, who was appointed by the Ontario government to review Motherisk after the Star reported on questions about the reliability of the lab’s hair-testing evidence. In her 2015 report, retired judge Susan Lang determined that Motherisk “fell woefully short of internationally recognized forensic standards.”  Lang, in her 2015 report, determined that Motherisk “fell woefully short of internationally recognized forensic standards.” She concluded that its hair tests were “inadequate and unreliable” for use in the thousands of child protection cases and a handful of criminal cases in which they were relied upon. The Colorado case is the earliest known example of Motherisk testifying to its hair tests in a criminal court, and shows for the first time that the lab’s reach extended beyond Canada’s borders. It also calls into question statements made under oath by Dr. Gideon Koren, the lab’s founder and former director, in the high-profile criminal trial that blew the lid off the Motherisk scandal. Koren’s testimony in Tamara Broomfield’s 2009 trial led a Star/CBC investigation to the Colorado case, which is perhaps the most tangible proof to date that even in the very earliest days of the Motherisk lab, the red flags were there. In early 1993, Colorado public defender Robert Pepin was preparing for a first-degree murder trial, trying to figure out how to save his client from the death penalty. Robert Pepin, the public defender in the 1993 case, in his Denver office. Pepin was searching for possible mitigating factors that could stave off a death sentence, and contracted Motherisk at Sick Kids to test his client's hair. Jack Dempsey for the Toronto Star. Allen Thomas Jr., an ex-con in his mid-20s, was charged with raping and stabbing to death a 71-year-old grandmother in her home in a Denver suburb in February 1991. The state had a strong case. But to obtain a death sentence, the jury would have to be convinced, among other things, that there were no mitigating factors clouding Thomas’s state of mind. Allen Thomas Jr. was charged with raping and stabbing to death 71-year-old grandmother Leah Bratsch. In an interview, Pepin said hair-strand drug testing was “pretty novel” in the early ’90s, but was a promising, “objective” way to prove heavy drug use. It seemed an avenue worth pursuing. “We’re talking about a capital case ... life and death,” Pepin said. “No stone goes unturned if you’re doing your job right.” He travelled to Toronto and contracted the Motherisk team to test Thomas’s hair. Klein, who managed the lab, went to Adams County in April 1993 to present Motherisk’s evidence. That’s six years earlier than Lang reports Motherisk started conducting hair tests for use in child protection and criminal cases, around 1999. According to the Lang report, that information was provided by Klein, who was “instrumental in the development of (Motherisk’s) testing methodologies,” before she was fired from the hospital in 2005. Lang said Sick Kids terminated Klein and a senior secretary “purportedly for cause” after an investigation into allegations that the secretary had “misappropriated funds from (Motherisk’s) customers.” Klein declined to comment for this story, citing pending litigation. She is being sued along with Koren, Sick Kids, another former lab manager, Joey Gareri, and a children’s aid society by a mother who claims she lost custody of her two daughters because of Motherisk’s flawed hair tests. According to a court transcript, Motherisk tested a sample of Thomas’s hair using radioimmunoassay (RIA), an immunology-based test that can be used to screen for drugs. Based on the results of that test, Motherisk concluded that at the time of the murder, Thomas was ingesting an average of 55 grams of cocaine a month, which translates to nearly two grams a day, heavy use by most standards. In 1993, the standard for admissibility of scientific evidence in Colorado was known as the Frye test. To meet it, Thomas’s defence would have to convince the judge that Motherisk’s testing was generally accepted by the scientific community, and that it produced reliable results. That did not happen. During the pre-trial hearing on April 8 and 9, prosecutor Eva Wilson exposed flaws in the testing’s methodology and analysis. She did so with the assistance of Frederick Smith, at the time a forensic chemist and associate professor of correctional justice at the University of Alabama at Birmingham, who acted as an “advisory witness” for the prosecution. Colorado prosecutor Eva Wilson exposed flaws in Motherisk's testing methodology and analysis during a pre-trial hearing in a murder case in 1993. In her opening statement, Wilson said she objected to Klein’s evidence for two primary reasons: “she came up with her results on the basis of one test, which was a screening test”; and that the hair-testing was performed in a “clinical laboratory.” Clinical labs are primarily interested in diagnosis and treatment, while in forensic labs, the analysis must meet the high bar for evidence in court — a point Wilson underscored when her witness, Smith, took the stand. “Do you have any concerns about the laboratory that she did her work in or about the other methods, just briefly?” Wilson asked Smith. “Yes,” he replied. “I’m concerned that the laboratory is not a forensic laboratory. It doesn’t have the safeguards that the forensic laboratory would have, such as documenting coming and going of people, such as storing specimens and controls. “There are all areas that point to a laboratory that may be fine clinically but for forensic purposes, in my opinion, don’t pass the mustard.” Smith said a major concern with Klein’s analysis was the use of “unconfirmed” radioimmunoassay (RIA) “for forensic purposes.” Relying solely on a preliminary screening test “is just not acceptable among forensic scientists,” he said, estimating this had been the case for at least five years. Smith explained that at the time, the consensus among forensic toxicologists was that results had to be verified with a second test, using the so-called gold-standard method, called gas chromatography-mass spectrometry (GC-MS). By 2005, the start of Lang’s review period, Motherisk was using a different immunology-based screening test, called ELISA (enzyme-linked immunosorbent assay), manufactured by a company in California. But Lang found that before 2010, despite “the international consensus and the unambiguous instruction from the manufacturer” that results must be verified, Motherisk “very rarely” confirmed its preliminary results with a gold-standard test..Decades apart, Motherisk’s tests debunked' In 1993 in Colorado a lawyer’s questions expose the same failings Justice Susan Lang identified in her report 22 years later... From the Colorado trial: Prosecutor Eva Wilson: We challenge her (Motherisk expert Julia Klein), Judge, in that we feel that her results are inaccurate and inadmissible because of the fact that she only used a screening method to arrive at them. … the Laboratory relied on the unconfirmed results of its … tests — both qualitatively (to distinguish positive from negative) and quantitatively (to calculate the drug concentration in the sample); and second, it had no written standard operating procedures for the hair tests it carried out, thereby calling into question the reliability. These two deficiencies alone are sufficient to render (Motherisk's) hair tests inadequate and unreliable during this period. P. 83 Prosecutor Eva Wilson: Other than the subjects that they deal with, do you know any of the differences between a forensic laboratory and a clinical one? Motherisk expert Julia Klein: No. I did an article published in the Journal of Forensic Sciences, and they are very similar. Their work is very similar to our work. Although the leaders of (Motherisk) had relevant experience as research or clinical toxicologists, none of them had any formal training or experience in forensic toxicology. … The result was inevitable: (Motherisk)'s testing and operations fell woefully short of internationally recognized forensic standards. P. 5 Wilson: What is your opinion, just briefly, with regards to the validity of Miss Klein’s analysis in this case? Forensic chemist Frederick Smith: I have two main areas of concern. First is that the use of an unconfirmed R.I.A. for forensic purposes is not generally accepted, and in fact, I believe it’s not accepted at all for forensic purposes. Wilson: I’m sorry, sir, you said an unconfirmed? Smith: Yes, using radioimmunassay without GC/MS— Wilson: Go ahead. Smith: —is just not acceptable among forensic scientists. Despite the international consensus and the unambiguous instruction from the manufacturer about the manner in which the ELISA tests could be used, (Motherisk) did not have the capability to test hair samples using a confirmation method, such as GC-MS or LC-MS/MS, in-house. P. 88 Wilson: Do you have any concerns about the laboratory that she did her work in or about the other methods, just briefly? Smith: Yes. I’m concerned that the laboratory is not a forensic laboratory. It doesn’t have the safeguards that a forensic laboratory would have, such as documenting coming and going of people, such as storing specimens and controls. Motherisk’s practices were unacceptable and fell well below expected standards for a forensic laboratory. P. 7 Defence lawyer Pepin presented a second expert, who also tested a sample of Thomas’s hair for drugs, using GC-MS, and testified after Klein: Carl Selavka, at the time director of forensic operations at National Medical Services, a drug-testing facility based in Willow Grove, Pa. At one point, Wilson asked Selavka if he was relying “in any way, shape or form in your opinion on the work that Miss Julia Klein did.” “No. I’m not,” Selavka answered. “You would actually call it (Motherisk’s testing) work which gives legitimate researchers in this area a bad name, would you not?” Wilson said. “I might, the researchers being those in forensic toxicology. There are certainly clinical utility (in the) work that has been described to me,” he said. In a short oral ruling, Judge Donald Marshall said he would not allow the hair-testing evidence prepared by Klein or Selavka, in part, because “no confirmation test was run by either expert.” He reserved the harshest criticism for Motherisk, comparing the scientific process to archery to make his point. As Marshall put it, whereas Selavka had shot his arrow and then expanded the bull’s-eye “so that the result could be declared a success,” Klein had simply “shot the arrow in the air, let it land, and then went and painted the target around the arrow.” Thomas was convicted of first-degree murder. Although prosecutors requested the death penalty, the jury declined to impose it, and he was sentenced to life in prison. The criticism of Motherisk tests at the Colorado hearing might have remained buried had it not been for Koren’s testimony in the Broomfield case. The case of Tamara Broomfield and her son, Malique, who suffered a near-fatal cocaine overdose, led to serious questions about Motherisk testing. Peter Small/Toronto Star file photo Before Motherisk’s evidence — tests of Broomfield’s son’s hair that purported to show high levels of cocaine over 15 months — was admitted in her trial, it was challenged by her lawyer in a voir dire hearing, a kind of trial within a trial, where the judge hears what evidence is to be admitted. Koren testified that Motherisk’s tests and the lab’s expertise had been “accepted by the courts in different jurisdictions,” including Canada and the U.S.
Justice Tamarin Dunnet asked Koren to “clarify how Motherisk’s tests were applied in court in the U.S.” Koren replied: “About 10 years ago, Your Honour, we were asked by the Colorado court in a case of murder to test hair for cocaine in an individual who claimed to being addicted to the drug, and to the best of my knowledge, our results, not were just accepted, but had an impact on the judgment.”
In her decision to admit Koren’s testimony, Dunnet said: “His expertise has been accepted in courts in Canadian provinces and in Colorado.” Koren did not provide — nor was he asked to — any more information about the Colorado case. (He also was not questioned by the Crown, defence or the judge about Motherisk’s lack of forensic accreditation, or the fact that the hair-testing results in the case were not verified with a confirmation test.) Dr. Gideon Koren, seen at a medical conference in England earlier this month, is the founder and former director of Motherisk. Koren referred to a U.S. case during testimony in Ontario, but wasn’t challenged on it. CBC, The Fifth Estate Broomfield was sentenced to seven years in jail for breaking her toddler’s bones and repeatedly feeding him cocaine leading up to a near-fatal overdose. Koren, who retired from Sick Kids in 2015 during Lang’s review, did not respond to emails seeking comment for this story. He told a reporter who approached him following a presentation he gave at a medical conference in the U.K. earlier this month: “Under legal instructions, I cannot talk.” The Star and the CBC searched legal databases, contacted Colorado district attorneys and criminal defenders, including Pepin and Wilson, as well as posting to several listservs for Colorado lawyers, but we were unable to locate a Colorado criminal proceeding in which Motherisk’s evidence was accepted. Toronto defence lawyer Daniel Brown tried to get Broomfield’s trial judge to reopen the case in 2010 to re-examine the medical evidence. The Star/CBC recently provided Brown with a transcript of the Colorado hearing. He says that if this was the case that Koren was referencing during Broomfield’s trial, a perjury investigation is warranted. “Dr. Koren’s testimony in the Broomfield case appears to be a deliberate attempt to mislead the presiding judge about the widespread acceptance of Motherisk’s hair testing procedures in criminal courtrooms throughout the continent,” said Brown, a Toronto director of the Criminal Lawyers’ Association. “Perjury strikes at the core of our justice system and any witness who deliberately lies under oath ought to be investigated by police for such misconduct.” Broomfield’s cocaine-related convictions were overturned in October 2014 with consent of the Crown after an expert sharply criticized the reliability of Motherisk’s results. As part of that deal, Broomfield agreed to abandon her appeals of the other child-abuse convictions related to her son. But in light of subsequent revelations about Motherisk, said her appeal lawyer, James Lockyer, “It is clear that bargain should never have been entered.” Lockyer said the new questions about Koren’s testimony at trial are “part of a pattern” that warrants reopening the case. He is currently drafting an application to set aside the abandonment of her appeal. After Klein left Sick Kids, she started a drug-testing consulting company and continued to testify, appearing in a child protection proceeding in Halton region as recently as 2014. Klein told Lang that Motherisk was not a forensic lab and that its work was “definitely not forensic.” However, she said she spoke to Koren “on several occasions” between 2003 and 2005 about the need to routinely confirm results with a gold-standard test — a claim Koren denied, according to the Lang report. Koren is now working in Israel, where he is listed as a member of the big data team at Maccabitech, the business development arm of the Maccabi Group, a health-care company based in Tel Aviv. He is under investigation by the College of Physicians and Surgeons of Ontario and is named as the co-defendant in at least 11 lawsuits including a national class action that is awaiting certification. In his statement of defence in the proposed class action, Koren denied the claims, and said the Motherisk’s hair tests were “accurate and reliable for their intended purpose” of providing clinical information “relevant to the medical care and safety of children.” He told the Lang review that “the term ‘forensic’ was not mentioned by any judge, child protection lawyer, defence lawyer, or Crown lawyer,” according to her report. In an interview, Colorado prosecutor Wilson said she was stunned to hear that Motherisk continued to present unconfirmed hair-testing results in Canadian courts after the 1993 hearing, and that the lab’s evidence went virtually unchallenged for so long. Eva Wilson, pictured in Golden, Colo., exposed flaws in the methodology and analysis of the Motherisk hair test used in the murder case. Jack Dempsey for the Toronto Star “It is extraordinarily surprising to me that that was allowed, especially where you’ve got a community where it’s been used routinely,” she said. Sometimes, that becomes the problem,” Wilson said. “Nobody steps back and says, ‘Why are we OK with this?’ ”

The entire story can be found at:

http://projects.thestar.com/motherisk/part-2/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Motherisk: (Part 1 of 3) A very special national Toronto Star/CBC investigation 'Separated by a hair: A once-respected lab inside the Hospital for Sick Children, performed tests for more than 100 child welfare providers in five provinces, an investigation reveals. For some families, the fallout is a tragedy."..."It was a trusted lab inside the country’s premier children’s hospital. Motherisk raked in millions performing hair-strand drug and alcohol tests on at least 25,000 people across Canada. The tests were discredited, but not before they were used in at least eight criminal cases and thousands of child protection cases. Now, many of those cases are under review.So far, the Ontario review has identified 50 cases where Motherisk’s tests had a significant impact on decisions to remove children from their families. Many of those decisions can’t be undone."


PUBLISHER'S NOTE: Read this and weep: 'Separated by a hair.'... A phenomenal  three-part joint  Toronto Star/CBC investigation into Motherisk (The Hospital for Sick Children) conducted by The Toronto Star (Reporter Rachel Mendleson) and the CBC.  Rachel Mendleson  was awarded the prestigious 'Tracey Tyler Award" by the Association in Defence of the Wrongfully Convicted, now known as 'Innocence Canada'  for her brilliant investigative work exposing the disastrous debacle at the Hospital for Sick Children  - and its link to the notorious Charles Smith era at the once iconic hospital as well.

Harold Levy: Publisher; The Charles Smith Blog;

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QUOTE OF THE DAY: "I don't know where my kids are. I don't know if they are safe. I don't know if they are happy."

Heather, who lost her two young daughters eight years ago following Motherisk's positive cocaine tests despite dozens of clean urine tests she produced before her trial.

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SECOND QUOTE OF THE DAY:

"My daughters have a right to know where they come from.They have a right to know that they were loved."

Heather; 

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PASSAGE OF THE DAY: "(Judge) Susan Lang says Motherisk shows "these problems can happen again." After all, despite a high profile public inquiry in 2007 and 2008 into the devastating mistakes of Sick Kids forensic pathologist Charles Smith, whose flawed autopsies tainted more than a dozen cases, Sick Kids and the courts failed to see history repeating with Motherisk."

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STORY: "Separated by a hair: Motherisk, a once-respected lab inside the Hospital for Sick Children, performed tests for more than 100 child welfare providers in five provinces, an investigation reveals. For some families, the fallout is a tragedy," by Rachel Mendleson -a Toronto Star/CBC investigation - published on  October 20, 2017.

PHOTO CAPTION: "A Nova Scotia couple the Star is calling Fred and Julie to protect their children's identities, say they were hurt  by Motherisk hair tests that purported to show active cocaine use by Fred. Their son was eventually adopted."

PHOTO CAPTION: "Dr. Gideon  Koren, founder and former director of Motherisk, still speaks at medical conferences around the world."

GIST: "It was a trusted lab inside the country’s premier children’s hospital. Motherisk raked in millions performing hair-strand drug and alcohol tests on at least 25,000 people across Canada. The tests were discredited, but not before they were used in at least eight criminal cases and thousands of child protection cases. Now, many of those cases are under review.So far, the Ontario review has identified 50 cases where Motherisk’s tests had a significant impact on decisions to remove children from their families. Many of those decisions can’t be undone. In British Columbia, a mother is desperate to convince the children she lost years ago that she didn’t choose drugs over them. In Nova Scotia, a 7-year-old girl prays for her brother, who was adopted into another family. And in Ontario, a mother whose daughters were taken shortly after they were born is waiting for a reunion that may never come. For more than two decades, in thousands of cases across Canada, flawed drug and alcohol testing from the Hospital for Sick Children’s Motherisk lab influenced high-stakes battles over whether to remove children from their families. Child welfare agencies in five provinces paid for Motherisk’s hair-strand tests, believing the results were hard evidence of substance abuse. In fact, Motherisk’s results were faulty opinions, devised by scientists who operated without oversight or forensic training yet testified as experts in family and criminal courts as far afield as Colorado. The sterling reputation of Sick Kids and the promise of a simple, concrete answer in difficult cases obscured the warning signs that were there from the earliest days. A joint Toronto Star/CBC investigation reveals, for the first time, the scope and impact of a tragedy that was experienced across Canada. The lab’s client list, obtained through freedom-of-information legislation, and an analysis of court records show Motherisk performed tests for more than 100 child welfare providers in British Columbia, Ontario, Quebec, New Brunswick and Nova Scotia. At least four of these provinces continued to rely on the tests after 2014, when the Star first sounded the alarm on the lab after its results were challenged in an Ontario appeal court. Even after the Ontario government released a report in December 2015 that determined Motherisk’s evidence was “inadequate and unreliable” for use in court, New Brunswick and Nova Scotia persisted in using hair testing to help decide whether children should be permanently removed from their parents’ homes. Journalists from the Star and CBC’s The Current and The Fifth Estate interviewed families, reviewed more than 40 child protection cases that relied on Motherisk’s testing, and surveyed provincial governments about their responses to Motherisk’s failings. So far, only one province, Ontario, is providing counselling and legal support to affected families. None are offering financial compensation. For more than two decades, in thousands of cases across Canada, Motherisk's flawed drug and alcohol testing influenced decisions about whether to remove children from their families. Parents who've lost children speak out about the heartbreaking aftermath and experts weigh in on how it all went wrong. “Losing your child is the capital punishment of child protection law,” said retired judge Susan Lang, who wrote the government-commissioned report on Motherisk. “You need to have these test results done right.” In a recent interview, she called the fallout “a tragedy.” “I suppose the best that any of our families can hope for is ongoing contact between parent and child,” she said. “I wish I could wave a magic wand and make it all happen, but I suspect that we cannot do that.” Dr. Gideon Koren, the founder and former director of Motherisk who retired from Sick Kids during Lang’s review in 2015, still speaks at medical conferences around the world. This month, he was a panellist in Windsor, England. A crowd of 50 listened as Koren, who now works in Israel, spoke about hyperemesis gravidarum, a severe form of morning sickness, in a room overlooking the Royal Windsor Racecourse favoured by the Queen. Koren’s smile faded when he was approached by a reporter who asked about the problems at Motherisk. “I will not answer. Under legal instructions, I cannot talk about that,” he said, before exiting down a back stairwell. Fifth Estate co-host Mark Kelley confronts Dr. Gideon Koren, the founder and former director of Motherisk, at a medical conference in Windsor, England, this month. The mother in B.C. wants answers. The woman, who is identified as Lisa, a pseudonym, to protect the identity of her children, said “I lost my whole life over those tests.” This B.C. mother the Star is calling Lisa believes Motherisk’s hair tests were the linchpin in the decision to place her children in permanent care. Darryl Dyck for the Toronto Star Her two daughters were placed in permanent care 11 years ago due in part to Motherisk testing, which showed she had recently used methamphetamine, a finding she denied. Although there were other factors in her case, including allegations of neglect, she believes the hair testing was the linchpin. “I didn’t even have an identity outside of being a mother,” she said. “I didn’t know who I was or where I was going when they took my kids away from me. I tried to commit suicide more than once. “I felt I was this horrible person. I wasn’t capable of having children or being around people. I just didn’t think I was human.” The Motherisk scandal emerged in late 2014, after an expert witness challenged the reliability of the lab’s evidence in the case of a Toronto mom convicted in 2009 of repeatedly feeding her toddler cocaine, leading up to a near-fatal overdose. The criticisms of Motherisk led the Ontario Court of Appeal to toss Tamara Broomfield’s cocaine-related convictions. But it wasn’t until spring 2015, after Sick Kids had shuttered the lab during Lang’s review, that provincial governments addressed the use of hair-strand testing. The responses varied widely. That April, Ontario instructed child welfare agencies to stop relying on the testing in “ongoing and future” child protection cases. A month later, B.C., where media has reported that 8,000 newborns and adults underwent Motherisk testing between 1997 and 2015, imposed a moratorium on hair testing for child protection cases. Almost a full year later, in March 2016, New Brunswick issued a similar order; there, according to information released by Sick Kids, between 1,100 and 1,400 individuals had their hair tested by the Motherisk lab. Nova Scotia, where an estimated 750 to 900 individuals were tested, stopped relying on hair testing in April 2016, four months after Lang’s final report was released. That was too late for a Nova Scotia mother and father who were in the final throes of a battle to keep their family together. The parents, who we are calling Fred and Julie, had a history with child protection, according to court rulings. The primary concerns were their volatile relationship and allegations of substance abuse, which were confirmed, in part, by Motherisk testing. A Nova Scotia couple the Star is calling Fred and Julie, to protect their children’s identities, say they were hurt by Motherisk hair tests, including testing that purported to show active cocaine use by the dad. Their son was eventually adopted. Two of their children — a girl, 3, and a boy, 7 months — had been living with their paternal grandmother when the kids were apprehended in July 2013. A child protection worker alleged Fred had violated a court order prohibiting him from being in the house at night and that there was a “physical altercation” between Julie and the grandmother. The ministry moved for permanent care in separate trials. The parents lost the first trial, concerning their son, in June 2014. Fred, who was seeking sole custody, had recently produced a clean Motherisk test. But the judge noted that previous Motherisk testing showed “active, intensive and frequent” cocaine use, which reflected the “lack of honesty” of Fred, who characterized his past use as recreational. By the time their daughter’s case got to court in December 2014, Lang’s review of Motherisk was underway. This time, Fred, again seeking sole custody, presented hair tests from a forensically accredited lab in the U.S., which came back negative for cocaine. He got his daughter back. In that May 2015 ruling, the judge said she assigned “no weight” to the news that Ontario had stopped relying on Motherisk testing. Instead, based on the test from the independent lab and other evidence about the father’s lifestyle, she concluded he had not used cocaine since September 2013, despite several positive Motherisk tests showing very low concentrations of the drug during this period. Fred then filed an application to terminate the permanent wardship order for his son, but was told it was too late. He tried to get a judicial review but his application was found to be outside the court’s jurisdiction. The boy’s adoption was finalized in June 2015, a month after the decision in his sister’s case. After Lang’s report was released, the parents petitioned the province to review their case. They were told only that the review request had been granted but have not received further information. The Nova Scotia Community Services Department declined to comment on the case. A spokesperson said the department had received only one request to review a child protection file involving Motherisk, “resulting in no change to the original decision.” As far as the province is concerned, they are not getting their son back. Fred and Julie are suing Sick Kids, Koren, lab manager Joey Gareri and the Nova Scotia government — two of the estimated 275 named plaintiffs in at least 11 lawsuits related to Motherisk. In their statement of claim, they allege the province exercised “tunnel vision” and “failed to consider strong evidence ... surrounding the accuracy and reliability of the evidence provided by the Motherisk laboratory and, instead, sought to suppress it.” In an interview, Fred said, “It’s torn me apart ... because that’s my son, and that’s my daughter. They’re not together when they should be together. Every day, I think about that.” The mother, who was granted access to her daughter, said the 7-year-old collects toy cars for her brother, and mentions him in her nightly prayers. “She’ll ask God to hurry up and let (him) come back home,” she said. In its statement of defence, the province argued Motherisk’s tests were “but one item of evidence” in the case, which had been decided in a fair trial, in a decision that had not been appealed by the legislated deadline. Sick Kids and Gareri, in a joint statement of defence, argued that “any losses, damages, injuries or harm allegedly suffered by the plaintiffs were caused entirely by their own actions.” Motherisk lab manager Joey Gareri testified in a proceeding in 2014 that placed an infant in permanent care without access to his parents. Those parents are now suing Gareri, Sick Kids and Koren. Koren, in his statement of defence, said Motherisk’s hair tests were “accurate and reliable for their intended purpose” to “provide information relevant to the medical care and safety of children,” and maintained that “any loss of custody or visitation rights (in this case) would have occurred regardless of the hair tests.” Koren is also the subject of an investigation by the College of Physicians and Surgeons of Ontario. The research arm of the Motherisk Program he founded in 1985 to provide drug safety advice to pregnant women is still operational. Sick Kids has never released complete details on the number of court cases that relied on Motherisk’s hair tests. Citing ongoing litigation, the hospital refused to answer questions for this story. Individual governments conducting reviews of affected child protection cases declined to share any tallies that may exist, despite repeated requests. Even in Ontario, the total is unknown; Lang’s review found that roughly 16,000 individuals had their hair tested by Motherisk at the request of 43 child welfare agencies from 2005 to 2015. (Of those, more than 9,000 individuals tested positive.) However, the Star/CBC investigation indicates Motherisk cast a long shadow, conducting at least 35,000 tests on 25,000 individuals across Canada. The lab’s client list shows Motherisk performed testing for 46 child welfare providers in B.C. from 2007-15, including several serving Indigenous communities. In Quebec, the client list includes the Batshaw Youth and Family Centres in the Montreal suburb of Westmount, the strongest evidence to date that the results were used in child protection proceedings in that province. (Batshaw declined to comment, citing confidentiality issues.) As the Star has previously reported, Motherisk gave evidence in a 2013 criminal case in Quebec, but the testimony did not affect the guilty verdict.  In at least one instance, Motherisk’s evidence was given in the U.S., where former lab manager Julia Klein testified in 1993, in a pre-trial hearing for a murder case in Colorado, according to a transcript of the proceeding obtained by the Star/CBC. The hearing exposed the same failings that were identified by Lang, including that Motherisk fell short of forensic standards and did not confirm preliminary results with a gold-standard test. It is the only known case in which a judge threw out Motherisk’s results before the controversy emerged more than 20 years later. In Ontario, a government committee reviewed seven criminal cases, six of which resulted in convictions. Attorney General Yasir Naqvi refuses to identify the cases, citing privacy concerns, although all are on the public record. In an interview, Naqvi said that outside of the Broomfield case, the review identified only one conviction where there were “serious concerns” that Motherisk testing “played an important role.” He said the “affected parties” have been informed and “given access to legal representation.” Ontario Attorney General Yasir Naqvi said a review of seven crimiinal cases identified only one conviction where there were "serious concerns" about Motherisk testing playing a key role, outside of the Tamara Broomfield case that launched the Star's investigation. Andrew Francis Wallace/Toronto Star The Star/CBC has confirmed that case involves a father who, like Broomfield, was convicted of feeding his young son drugs — in this case, OxyContin — based on Motherisk’s hair tests. The father, who can’t be named to protect the identity of his son, was sentenced in Barrie in 2008 to six months in jail. He died after his release. The reviews of child protection cases vary widely, from Ontario’s $10-million Motherisk Commission, established in January 2016 to probe cases and offer counselling and legal aid funding, to Nova Scotia, where the framework has not been finalized. (Quebec has not answered questions about hair testing or whether it will probe affected child protection cases.) Whatever the parameters, it’s an inherently imperfect process that involves untangling a web of factors that influence custody decisions. And with Motherisk, there is also no chance for exoneration: The lab’s analyses were sloppy but not necessarily incorrect, and samples were not retained for retesting. Those who believe they were wrongfully branded drug addicts and alcoholics and lost their children will never be able to prove it. Legal remedies will be hard fought, and in many cases unsatisfying, for the reason that once finalized, adoptions are virtually impossible to disrupt. Rollie Thompson, a family law professor at Dalhousie University, explains that the difference between overturning criminal cases and child protection matters is that “the wrongly convicted criminal gets out of jail.” “Children’s lives move on, so that you can’t reverse it,” he said. “You can’t let them out of permanent care and put them back with their parents. You can’t rewrite history.” In Ontario, where the Motherisk Commission expects to review roughly 1,200 files during its two-year mandate, the probe has identified 50 cases where Motherisk’s tests had a substantial impact. So far, there are only six cases where parents and children have reunited in some way. Commission counsel Lorne Glass said one of the challenges is that “there are lots of cases where adoptive parents don’t want to have to deal with openness, no matter what that openness really constitutes.” Motherisk Commission counsel Lorne Glass said “there are lots of cases where adoptive parents don’t want to have to deal with openness, no matter what that openness really constitutes.” Andrew Francis Wallace/Toronto Star “Where a child still has access with a parent, the chances of a reunification are a lot greater,” he said. “Where a child’s been adopted ... and has not had any contact with a parent for many years, the chances of a reunification are slim.” (The commission has drawn criticism for not looking at all affected files, but Glass, who is also reviewing select cases that relied on hair tests performed in private labs, says he believes the review will capture the cases where children have been permanently removed.) The success stories do not include an Ontario mother who lost her two young daughters eight years ago following Motherisk’s positive cocaine tests, despite dozens of clean urine tests she produced before her trial. Heather (not her real name) was informed in April 2016 that the commission found Motherisk’s results had a substantial impact in her case. However, she was upset by the letter she received from Commissioner Judy Beaman, which stated that Motherisk “was not the only evidence supporting the decision.” Heather believed it was. “All they had to say is yes or no: Did the hair test play a role? ... To elaborate on that you’re ... judging something that you don’t have the complete information to make a determination on,” she said in an interview. Heather was one of three mothers who launched an unsuccessful application for judicial review of the commission last year, arguing that the process should include public hearings and participation from birth parents. A Toronto Divisional Court dismissed her application as moot because the commissioner had rendered a positive decision in her case, but she is no closer to reconnecting with her daughters. (The court also said that because her daughters were previously involved with children’s aid, she could not be identified in media reports. Heather is among the parents suing Sick Kids.) “Heather,” a mother who was informed that Motherisk’s results substantially affected her case. She lost two daughters eight years ago. CBC, The Fifth Estate In a letter to Heather’s lawyer in June, Glass indicated that the children’s adoptive parents had been told of Heather’s desire to engage in mediation, which the commission is offering to fund as an alternative to a court challenge, “but to date, they have not advised us that they are prepared to participate in such a process,” he said. Glass declined to comment on individual cases, but in general, he said the commission doesn’t have “the authority to compel parties to participate in any process,” and noted that in cases where Motherisk was found to have played a significant role, funding is available to fight for reunification in court. Heather said: “I don’t know where my kids are. I don’t know if they’re safe. I don’t know if they’re happy. “My daughters have a right to know where they come from. They have a right to know that they were loved. They have a right to know they were wanted.” Susan Lang says Motherisk shows “these problems can happen again.” After all, despite a high-profile public inquiry in 2007 and 2008 into the devastating mistakes of Sick Kids forensic pathologist Charles Smith, whose flawed autopsy analyses tainted more than a dozen cases, Sick Kids and the courts failed to see history repeating with Motherisk. “You have someone who is positioned in a place where they can make a difference ... and who sees the work growing and takes advantage of it, and is able to persuade children’s aid workers, courts, judges, lawyers, that they have the answer ... it’s something that everybody wants,” Lang said. “There will be another time, there will be another issue. It’s hard to predict what it is, but the more transparency we all have and the more understanding we all have ... the better we might be able to raise some red flags in the future.”








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Hair-strand testing in child protection cases across Canada
British Columbia
Used Motherisk
No longer uses hair testing in child protection cases
Motherisk tested the hair of roughly 8,000 newborns and parents in B.C., beginning in 1997, according to media reports. The province initially said it would not review affected child protection files but recently told the Star/CBC it will probe all cases from 2005 to 2015 that resulted in a written decision.
Source: FOI documents obtained from Sick Kids, British Columbia government
Alberta
Did not use Motherisk
Still uses hair testing in child protection cases
Alberta continues to rely on hair-strand testing in child protection cases. The government said it started using hair testing in 2011, but never relied on Motherisk. A spokeswoman for the Ministry of Children’s Services said labs that perform the hair tests “adhere to the standards” of the U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) and the Department of Transportation.
Source: Alberta government
Manitoba
Did not use Motherisk
Still uses hair testing in child protection cases
Manitoba still uses hair testing in child-protection cases, but the government says it did not rely on Motherisk. A spokesman for the Department of Families said labs that perform drug testing are certified by the U.S. Department of Health and Human Services.
Source: Manitoba government
Ontario
Used Motherisk
No longer uses hair testing in child protection cases
Motherisk tested the hair of more than 16,000 individuals at the request of Ontario’s child welfare agencies between 2005 and 2015 alone, according to a government-commissioned review of the lab. The independent commission established in early 2016 to probe affected cases anticipates it will review 1,200 files before the end of its two-year mandate.
Source: Ontario government
Quebec
Used Motherisk
Has not responded to questions about whether they still use hair testing in child protection cases
Motherisk performed hair testing for Batshaw Youth and Family Centres in Westmount, Quebec, according to information provided by Sick Kids through FOI. The Quebec government did not address questions about the use of hair testing in child protection cases, and Batshaw said it could not comment, citing confidentiality issues.
Source: FOI documents obtained from Sick Kids
New Brunswick
Used Motherisk
No longer uses hair testing in child protection cases
New Brunswick started using Motherisk's hair tests in child protection cases in 1997. In March 2016, the government suspended the use of hair testing and launched a review of files involving Motherisk.
Source: New Brunswick government, CBC stories
Nova Scotia
Used Motherisk
No longer uses hair testing in child protection cases
Motherisk was among several labs that performed hair testing for use in child protection cases in Nova Scotia. The government stopped relying on hair testing in April 2016. The province is currently establishing a framework to review cases involving hair-tests performed at Motherisk and private labs.
Source: Nova Scotia government
Newfoundland and Labrador
Did not use Motherisk
Used hair testing from other labs until July 2016
Although Newfoundland and Labrador never used Motherisk, the province relied on hair testing from other labs until July 2016. A spokeswoman said the government does not keep statistics on the use of drug testing in child protection cases, and is not conducting a review of files that involved hair testing.
Source: Newfoundland and Labrador government
Governments in Saskatchewan, Prince Edward Island, Nunavut, Northwest Territories and Yukon said they have never relied on hair testing in child protection cases. According to Sick Kids, Motherisk performed hair testing for clients in PEI and the Northwest Territories, but those governments said they were unable to confirm the nature of that testing.

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A timeline of Motherisk

1985
Motherisk is born
Dr. Gideon Koren, a clinical pharmacologist and toxicologist, creates the Motherisk Program at Toronto’s Hospital for Sick Children. Within five years, Motherisk becomes a leading resource for pregnant and lactating women and their doctors about the effects of medication, alcohol and street drugs, and opens a research lab.
1999
From research to selling
The focus of the lab evolves from studying drugs in hair to selling its hair-testing services. Motherisk begins marketing the tests to child welfare agencies as a means of quantifying drug use and exposure.
2000
Grounds for dismissal
Koren is fined and suspended by the former presidents of Sick Kids and the University of Toronto for “repeatedly lying” and showing a “reckless dereliction of duty” during a high-profile dispute with whistleblower colleague Dr. Nancy Olivieri, conduct that was “sufficient ground for dismissal.”
2008
Red flags missed
The Goudge Inquiry into the mistakes of Sick Kids forensic pathologist Charles Smith that tainted more than a dozen criminal cases exposes the dangers of performing forensic services without proper training. No other departments are audited.
Oct. 14, 2014
Cocaine convictions tossed
The Ontario Court of Appeal overturns the cocaine-related convictions of Toronto mom Tamara Broomfield after expert evidence questions the reliability of Motherisk’s hair tests. Broomfield was convicted in 2009 of feeding her toddler cocaine based in part on Motherisk’s tests of the boy’s hair.
Nov. 2014
Star investigation
The Star publishes stories raising questions about Motherisk’s testing, which is now routinely relied on in child protection cases across the country. For weeks, Sick Kids and the government defend the reliability of the hair tests.
Nov. 26, 2014
Review launched
The Ontario government appoints retired judge Susan Lang to lead an independent review into the “adequacy and reliability” hair drug tests performed by Motherisk from 2005 to 2010.
March 5, 2015
Operations suspended
Sick Kids suspends “all non-research operations” at Motherisk after learning it had been misled about Motherisk’s proficiency testing. The next month, the lab is shut for good.
March 12, 2015
Canada-wide implications
The Star reports that Motherisk’s hair tests were used as evidence in child protection in Nova Scotia, New Brunswick, British Columbia and Quebec, signalling the potentially wide-reaching implications of Lang’s review.
April 22, 2015
Expanded mandate
Lang’s mandate is expanded to cover Motherisk’s hair testing between 2005 to 2015. The province directs Ontario’s children’s aid societies to stop relying on hair testing in child protection cases.
Oct. 15, 2015
Mea culpa
Sick Kids CEO Michael Apkon issues a public apology for “unacceptable” practices at Motherisk.
Jan. 15, 2016
Commission established
Ontario launches an independent review to determine the role Motherisk’s flawed hair tests played in decisions to remove children from their families. Retired judge Judith Beaman is appointed to lead the $10-million Motherisk Commission, which is given a two-year mandate to probe 25 years of individual child protection cases, and provide counseling and legal support to affected families.
March 2016
Other provinces respond
After initially saying it will only review cases at the request of affected parties, New Brunswick commits to reviewing child protection cases that relied in some part on Motherisk’s tests. Nova Scotia would not commit to establishing a formal review until 2017. British Columbia at first refuses to review affected cases, but later reverses that decision.
March 1, 2017
Koren under scrutiny
The College of Physicians and Surgeons of Ontario confirms it is investigating Dr. Gideon Koren, who retired from Sick Kids in June 2015. Sick Kids sent the CPSO findings from its internal investigation of Motherisk.
May 30, 2017
Restoring public confidence
Ontario launches a review of the oversight and accountability of the province’s forensic labs to explore setting mandatory accreditation standards, as well as improving forensic training and increasing transparency.

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http://projects.thestar.com/motherisk/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Rajesh and Nupur Talwar: India: A police officer gives his personal view of "The Aarushi-Hemraj Murder Case"...as he explains, 'Why India’s Crime Investigators Should Write Fiction," in The Wire..." It was a textbook example of how to destroy evidence at a crime scene. Noida police, busy preparing for a VVIP visit, failed to protect the sanctity of the place, leading to a messed up probe. The local police could not find the body of Hemraj – whom Aarushi’s parents blamed for her murder in their FIR – because it was lying on the terrace and the police had themselves locked the terrace. On the seventh day after the incident – also Aarushi’s 14th birthday – inspector general of police (Meerut) Gurdarshan Singh held a press conference and claimed the police had solved the case. He brought up the honour-killing angle and referred to both Aarushi and her father as “characterless”. The government of the day transferred Singh for his objectionable comments. He was reinstated to the same post within two months of being shunted out unceremoniously. So much for the daily dirge of the IPS against political interference. The first CBI team that took over the case from the Uttar Pradesh police turned their focus on Hemraj’s three other friends and subjected them to narco tests. The second CBI team filed its closure report that read more like a chargesheet against the parents. The three probe teams contradicted one another regarding the motive behind the double-murder, the weapon of offence and the involvement of the domestic help. The Allahabad high court raised grave questions on the CBI’s probe implicating the accused, saying that evidence was tampered with, a witness was planted and the agency discredited “clinching evidence” of the presence of Talwar’s compounder Krishna in the flat on the night of the murder."


PASSAGE OF THE DAY: "India’s criminal justice system is crumbling under the weight of underfunded, incompetent and unaccountable criminal investigating agencies – exceptions like Kumar notwithstanding. The policymakers of this country need to appreciate this: the absence of evidence is not evidence of absence."... "(Keshav Kumar, a 1986 batch IPS officer of the Gujarat cadre, has done outstanding work in using modern tools of forensic science to solve criminal cases. But he is an exception.)"

STATISTICS OF THE DAY: "More than 22 million cases are currently pending in India’s district courts. Six million of those have lasted longer than five years. Another 4.5 million are waiting to be heard in the high courts and more than 60,000 in the Supreme Court, according to the available official data. India, with only 13 judges for every million people, has one of the world’s lowest ratios of judges to population in the world, compared with 50 in developed nations. Similarly, there are huge gaps in the knowledge of investigating officers, forensic experts and judges. The tendency on part of our investigating agencies to treat narcoanalysis and brain mapping as two heaven-sent magic wands is an example of how self-defeating their approach has been in recent times."

STORY: "The Aarushi-Hemraj Murder Case, or Why India’s Crime Investigators Should Write Fiction, by Basany Rath, published by The Wire on October 19, 2017. (Basant Rath is 2000 batch IPS  (Indian Police Service) officer who belongs to the Jammu and Kashmir cadre. Views expressed are personal.)

SUB-HEADING:  "The leadership deficit blighting our criminal justice system is too urgent an issue – its redressal should not be postponed and it cannot be left to the investigating agencies."

GIST: How much of fiction writing is too much for our criminal investigation agencies? Any informed debate on the state of India’s criminal justice system and the accountability of the state machinery to the victims of crime needs to start with this question, especially after the recent Allahabad high court’s judgement on the 2008 unsolved double murder of Aarushi Talwar and Hemraj Banjade. The judgement underlines the unrestrained incompetence – willful or otherwise – of the investigative agencies – including the Central Bureau of Investigation (CBI) headed by the finest among the Indian Police Service (IPS) – and the bias of the trial court and its inability to put an end to their criminal journey impersonating as criminal investigation. It was a textbook example of how to destroy evidence at a crime scene. Noida police, busy preparing for a VVIP visit, failed to protect the sanctity of the place, leading to a messed up probe. The local police could not find the body of Hemraj – whom Aarushi’s parents blamed for her murder in their FIR – because it was lying on the terrace and the police had themselves locked the terrace. On the seventh day after the incident – also Aarushi’s 14th birthday –  inspector general of police (Meerut) Gurdarshan Singh held a press conference and claimed the police had solved the case. He brought up the honour-killing angle and referred to both Aarushi and her father as “characterless”. The government of the day transferred Singh for his objectionable comments. He was reinstated to the same post within two months of being shunted out unceremoniously. So much for the daily dirge of the IPS against political interference.
The first CBI team that took over the case from the Uttar Pradesh police turned their focus on Hemraj’s three other friends and subjected them to narco tests. The second CBI team filed its closure report that read more like a chargesheet against the parents. The three probe teams contradicted one another regarding the motive behind the double-murder, the weapon of offence and the involvement of the domestic help. The Allahabad high court raised grave questions on the CBI’s probe implicating the accused, saying that evidence was tampered with, a witness was planted and the agency discredited “clinching evidence” of the presence of Talwar’s compounder Krishna in the flat on the night of the murder. The high court judgement noted that the second CBI probe team and the Hyderabad based Centre for DNA Fingerprinting and Diagnostics (CDFD) “connived” to remove a key evidence that was pointing to the innocence of the Talwar couple. The CBI officer, late A.G.L. Kaul, wrote a letter to the CDFD stating “is it possible that this part of the report is based on a typographical error”. A leading question as understood in the legal parlance. The judgement was equally unsparing about the trial judge, “Like a film director, the trial judge has tried to thrust coherence amongst facts inalienably scattered here and there but not giving any coherence to the idea as to what in fact happened.” What does this case say about India’s criminal justice system? Our criminal justice system is afflicted with four deficits: infrastructure, knowledge, accountability and leadership. Our investigating agencies, forensic laboratories, public prosecutors and courts are painfully underfunded and understaffed. There are huge gaps in their physical facilities and carrying capacities. In an age of smartphones and iPads, they are untouched by process improvements based on IT. More than 22 million cases are currently pending in India’s district courts. Six million of those have lasted longer than five years. Another 4.5 million are waiting to be heard in the high courts and more than 60,000 in the Supreme Court, according to the available official data. India, with only 13 judges for every million people, has one of the world’s lowest ratios of judges to population in the world, compared with 50 in developed nations. Similarly, there are huge gaps in the knowledge of investigating officers, forensic experts and judges. The tendency on part of our investigating agencies to treat narcoanalysis and brain mapping as two heaven-sent magic wands is an example of how self-defeating their approach has been in recent times. In terms of competence and immunity to extraneous considerations, our public prosecutors are not good enough to withstand the highly paid defence lawyers. More often than not, India’s criminal justice system has not been able to make the erring investigating officers, forensic experts and, at times, trial court judges accountable for their commissions and omissions. When the Terrorist and Disruptive (Prevention) Act (TADA) was in operation between 1985 to 1995, maximum arrests and the single largest use of TADA happened in Gujarat, a state where there was no terrorism (in whichever way you define terrorism) during those years. The IPS officers leading the police at various levels in Gujarat cadre and the courts supervising their work could do nothing to stem the rot. How Delhi police officials fabricated a terror case (according to the National Investigation Agency) against Liaquat Ali Shah of Lolab and went unpunished is another example of this murky business of criminal investigation going on under the nose of the IPS leadership. The leadership deficit blighting our criminal justice system is too urgent an issue – its redressal should not be postponed and it cannot be left to the investigating agencies. The problem didn’t start with a Ranjit Sinha here or an A.P. Singh there. Notwithstanding the IPS lobby harping on their usual stable tenure based approach to police reforms, the hard reality is this: they have failed to prove their worth as leaders. Keshav Kumar, a 1986 batch IPS officer of the Gujarat cadre, has done outstanding work in using modern tools of forensic science to solve criminal cases. But he is an exception. The majority of the IPS is a victim of MAFA (mistaking articulation for achievement) syndrome. The problem of leadership deficit doesn’t end with the police forces either. IT-based process improvements have largely eliminated the case backlog at the Supreme Court level and are now helping the high courts. Below the high courts, the situation is depressing. Our lower courts are in bad shape, both physically and functionally. Criminal justice is a transaction-intensive discretionary public good. It is very difficult to overcome agency problems: building a robust criminal justice system is resource intensive and a long drawn process and demands sincere involvement of a number of stakeholders. India’s criminal justice system is crumbling under the weight of underfunded, incompetent and unaccountable criminal investigating agencies – exceptions like Kumar notwithstanding. The policymakers of this country need to appreciate this: the absence of evidence is not evidence of absence. Merely because an objective evaluation of the efficiency and effectiveness of our criminal justice system has not been done, it does not mean its efficacy for a large section of the victims of crime is not questionable. Evidence-based policing is not exactly a favourite domain of expertise for the majority in the IPS. It is time this must change. It is time fiction writing is left to Chetan Bhagat and Amish Tripathi."

The entire story can be found at: 

https://thewire.in/188532/aarushi-hemraj-murder-case-indias-crime-investigators-write-fiction/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.