Criminal Law

Report shows it's key to challenge scientific evidence

By Peter Small, Contributor

A report on a Toronto laboratory’s discredited alcohol- and drug-testing process shows how important it is for child-protection lawyers to closely examine, and, where necessary, challenge scientific evidence, Toronto criminal lawyer Melanie Webb tells

“Lawyers in this field will need to educate themselves on how to deal with so-called expert evidence,” says Webb, founder and principal of Melanie J. Webb Barrister.

Justice Judith Beaman was commissioned by the Ontario government to review hundreds of child-protection cases affected by the drug-testing laboratory. The flawed process behind the Motherisk laboratory only came to light as a result of an appeal in a criminal case, in which field Motherisk testing had been relied upon only “a handful” of times, even though the results of such testing had been admitted without question in tens of thousands of child protection cases over many years. She concluded in her report that the hair tests were unfair and harmful when used to monitor parents for substance use and determine their credibility.

The tests were imposed on vulnerable parents with little regard for due process, and the results were often admitted into evidence without the legal system’s usual checks and balances, Beaman wrote in her report, released in February.

Lawyers who acted for the parents rarely challenged the test results and most judges did not perform their gatekeeper role against unreliable expert evidence, Beaman wrote.

“It’s really quite shocking from my perspective as a criminal defence lawyer,” Webb says. "It’s instinctive for criminal lawyers to carefully look at a report to satisfy themselves as towhether the evidence is reliable and the conclusions are valid, especially where the report may have a substantial impact on the case.”

Beaman wrote that there are significant cultural differences between child-protection law and criminal law. Where criminal lawyers are expected to vigorously advocate for their clients, parents’ counsel who do the same in child-protection cases are seen to be lacking in concern for the best interests of the children, she said.

Webb finds this particularly troubling because the stakes are so high in child-protection cases, arguably higher than in many criminal cases.

“This quite literally broke families apart,” she says. “Relationships were damaged. There was irreparable harm. Children were moved from their homes and their communities, and even adopted out.”

Webb notes that a majority of the parents tested by the lab were poor and had to rely on legal aid, where it can be difficult to obtain funding for a second expert opinion.

Beaman addressed this issue, recommending that Legal Aid Ontario, when authorizing disbursements to parents’ counsel related to expert evidence, consider the complexity of the cases and the possible miscarriages of justice.

She also recommended that medical or scientific test results used in proceedings should be accompanied by a report from an expert explaining their meaning and the underlying science behind them.

Webb welcomes these recommendations. It should be ingrained in child-protection lawyers, as it is for criminal lawyers, to question the admissibility of expert evidence, she says.

“As defence lawyers, we are expected to not just take a report at face value and say, ‘Oh well, it’s going in and we’re not going to challenge it,’” she says, “especially where that report adversely affects the client’s case.”

The commissioner observed that it was rare for parents’ counsel to advise their clients not to submit to the testing. Children’s aid societies and the courts drew negative inferences about parents who refused to submit to the tests or disputed the results, her report says.

Webb finds this disturbing. As a criminal lawyer, she is wary of such tests. “In a criminal case, I wouldn’t just be saying, ‘Hey, yeah, go ahead, let’s consent to a hair sample,’ which could potentially be used against you and carry drastic consequences.

Beaman recommended that children’s aid societies be required to get written, informed consent from parents every time they are asked to provide a bodily sample.

She was critical of the fact that most judges in child-protection cases rarely questioned the admission of the test results.

Webb echoes her concerns. The Supreme Court of Canada and case law both say that a judge has the ultimate responsibility to determine the admissibility of expert evidence, even when the parties make no objections, she says.

The justice system must continue to guard against the misuse of reports founded on unreliable test results in future child-protection cases, Webb says.

This is underscored by the fact that although the use of hair tests has been discontinued, child protection cases are now increasingly relying upon testing of other bodily samples,Webb says. As Beaman noted in her report, urine screening for alcohol and drug use are reportedly still being admitted without scrutiny, while fingernail testing for substance use and ankle bracelets for alcohol monitoring are being administered in some jurisdictions.

The commissioner urged the Law Society of Ontario and organizations like the Ontario Bar Association (OBA) to develop continuing legal education courses for lawyers involved in child-protection cases.

In response, the OBA’s criminal justice section will hold a professional development session for lawyers in the fall. It will be an opportunity for lawyers and judges to both engage in discussion and impart their experience on the dealing with expert evidence, says Webb, who will co-chair the educational event.

“There needs to be more information sharing and joint educational opportunities," she says.

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