Nova Scotia must review dozens of cases because hair strand drug testing too unreliable

Apparently darker hair absorbs more chemicals and drugs than lighter hair, and women using alcohol based hair care products can make the alcohol portion of the test unreliable.

Nova Scotia has become the fourth known province to suspend or ban the use of drug and alcohol hair testing in child protection proceedings, after New Brunswick, British Columbia and Ontario.

“The department has decided to suspend hair strand testing for child protection cases in Nova Scotia effective immediately,” said department of community services spokeswoman Heather Fairbairn Tuesday.

The move comes in the wake of a 2014 Star investigation into the Hospital for Sick Children’s Motherisk laboratory, which found that prior to 2010, the lab was using a hair test that was not recognized as the “gold standard.”

An independent review deemed the hair test results “inadequate and unreliable” in 2015.

They were used in potentially thousands of child protection cases in Ontario as well as in British Columbia, Quebec, Nova Scotia and New Brunswick, where they were routinely accepted as evidence with little scrutiny in court.

“The department has been reviewing the use of hair strand testing for some time. We stopped using Motherisk as soon as issues about their test results became known in 2015,” said Fairbairn.

“Since then, questions continued to be raised about the procedures used and the differences between the drug testing laboratories. The decision to suspend all hair strand testing will enable careful consideration of these questions. For the time being, we will rely on other established methods of testing and social work practice.”

Motherisk ceased its hair testing practices in 2015 prior to the completion of the independent review, but some provinces were still using hair tests from other labs in some cases until very recently.
“It’s welcome and long overdue,” said Halifax lawyer Mike Dull of the suspension. “Obviously, it’s recognition by the province of Nova Scotia that such tests are not reliable, so they’re taking active steps from preventing future harm that could result from these unreliable tests.

“But the question remains: What are they doing about the past harm, to families affected by these tests that they’ve implicitly deemed to be unreliable by stopping to use them? Those are questions that remain unanswered.”

Dull is co-counsel in the case of Nova Scotia residents William McIntyre and Natacha LeRoy. Motherisk hair testing was done in child protection cases that dealt with some of their children.

They are among an unknown number of Canadians outside of Ontario whose cases will not be reviewed by the ongoing Motherisk Commission in this province, chaired by retired Justice Judith Beaman, which is looking at files going back 25 years.

McIntyre and LeRoy’s case is being reviewed by the Nova Scotia department of community services, said Dull, but it’s unclear when they’ll receive any information.

“It’s an atrocity,” McIntyre, 50, told the Star earlier this year. “How could this be just an Ontario thing? You came down and took my hair and sent it to Ontario … This is not just Ontario. This is a Canada-wide situation.”

McIntyre and LeRoy’s 3-year-old son was made a ward of the province and later adopted as the result of a proceeding in which Motherisk said both parents had tested positive for traces of cocaine.

McIntyre and LeRoy — who were previously in a relationship and remain good friends — deny using the drug at the time. McIntyre also claims that subsequent hair testing done in the U.S. showed he was negative. They say they were asking that the court grant custody of their son to McIntyre with access to LeRoy.

There were 49 open child protection cases using Motherisk hair tests in Nova Scotia in 2014. The province continued to use hair testing services from other labs, including Toronto-based Dynacare, CBC reported.

The lab confirmed to the Star on Tuesday it has done testing for clients in Nova Scotia and New Brunswick, but would not disclose who the clients were, citing its privacy policy.

A Dynacare spokesperson said in an emailed statement that it provides “robust, high-quality analytical toxicology service” and presumptive positive tests are confirmed with more specific tests.

“Analysis for the presence of drugs in hair samples has been utilized and accepted as a powerful evidential tool in many criminal cases in the last decade. It is an important component of modern forensic science,” Andrea Price wrote in an emailed statement.

Motherisk hair tests have been used in Quebec court proceedings, but they were either requested by individuals or children and youth agencies and are not tracked by the government, a Ministry of Health spokeswoman previously told the Star.

Questions have been raised for years about hair strand testing, regardless of the laboratory performing the service.

Because of the effect of alcohol-based hair products, “the risk for false-positive results appears high when monitoring a female population,” Motherisk’s own manager at the time, Joey Gareri, wrote in a 2011 paper he co-authored with Motherisk founder and director Gideon Koren.

Studies have also suggested that drugs appear to be incorporated more readily into darker-coloured hair, and there is also evidence that the way substances are incorporated into the hair of a single individual may vary from strand to strand.

Ontario’s Ministry of Children and Youth Services ordered children’s aid societies amid the independent review into Motherisk last year to stop using hair strand testing.

The results from that review, released in December, were damning.

“In the circumstances, I have concluded that the laboratory’s flawed hair-testing evidence had serious implications for the fairness of child protection and criminal cases,” concluded independent reviewer Susan Lang, a retired Ontario Court of Appeal judge, last December.

The suspension of hair strand testing across the country would appear to be a natural consequence of the Lang report, said Katharina Janczaruk, chair of the Family Lawyers Association of Ontario.

“I think a natural event flowing from this examination of hair testing is a reaffirmation that we need to look at those other factors (in child protection proceedings), we need to demand that social workers are doing their social work (role) and not simply relying on the test, that lawyers are questioning tests when tests are being made,” she said.
With files from Rachel Mendleson and Sarah-Joyce Battersby

Read more about: Nova Scotia, New Brunswick, British Columbia

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