September 28, 2016 MRC and Meaningful Participation by Indigenous Communities

The Motherisk Laboratory at the Hospital for Sick Children  The Motherisk Laboratory at the Hospital for Sick Children conducted hair strand testing for drugs and alcohol at the request of Children’s Aid Societies in Ontario  Between 1998 and 2015, more than 20,000 people were tested and approximately 11,300 had positive results 2

R. v. Broomfield  In this case, Tamara Broomfield was convicted of charges that she had administered cocaine to her 2 ½ year old child.  She was convicted, in part, on the basis of the Motherisk Laboratory’s tests.  Based on fresh evidence, the Ontario Court of Appeal found that the science and methodology used by the Motherisk Lab was questionable.  As a result, part of the conviction was overturned. 3

First Review: Independent Review  The Ontario government established an Independent Review in 2014 to investigate and make recommendations about the hair strand drug and alcohol testing at the Motherisk Lab at the Hospital for Sick Children.  Retired Court of Appeal Justice Susan Lang was appointed Commissioner of the review. 4

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Independent Review In her report dated December 15, 2015, Justice Lang found that there were a number of problems with the hair strand testing, which rendered the results inadequate and unreliable for use in child protection and criminal cases. 6

Findings of the First Review 7 The lab did not meet internationally recognized forensic standards. Test results were misinterpreted and over- interpreted. Very poor records were kept of the testing. Staff were ill-trained to perform and interpret results.

Findings of the First Review The use of the hair strand evidence in child protection and criminal cases had serious implications for the fairness of those proceedings. second review A second review should be set up that would look at individual cases that may have been affected by the Motherisk laboratory’s methodology 8

Review and Resource centre Justice Lang recommended that a Review and Resource Centre be established to provide support to affected persons involved in child protection proceedings who may have been affected by the lab’s test results. The Commission offers: Information Information Counselling Counselling Legal referral Legal referral Mediation/Alternative Dispute Resolution Mediation/Alternative Dispute Resolution 9

Mandate The Commission’s mandate is to: establish and lead a Review and Resource Centre design and implement a process to identify and notify affected persons so that they have access to services and support Offer early advice or guidance on high priority cases Review individual child protection cases Engage with parties and stakeholders about the operation of the Review and Resource Centre 10

High Priority Cases The Commission has required all Children’s Aid Societies to send us “high priority cases” for legal review where, adoption 1.a child had been placed for adoption and the adoption was finalized during the period December 17, 2015 to today; adoption 2.a child has been placed for adoption but the adoption has not been finalized; custody order under section a custody order under section 57.1 of the CFSA was made during the period December 17, 2015 to today; crown ward 4.a child has been made a crown ward, is in the care of a society but has not yet been placed for adoption; crown ward custody 5.a child is a crown ward, is in the care of a Society and an application for a custody order under section 65.2 of the CFSA is pending; crown warcustody 6.an application is pending in court to make a child a crown ward or for a custody order under section 57.1 of the CFSA; customary care arrangement 7.a child(ren) are placed in a customary care arrangement. 11

Status of File Review  As of September 20, 2016, 43 out of 47 CAS’s have responded 462 high priority cases have been received so far 293 cases have been reviewed 279 cases closed with no further action (letters sent to the E.D.’s of agencies) 14 cases require further action 12

Motherisk Commission  126 people have contacted the Commission by phone and .  Of these, 96 people have requested a legal review of their file.  50 people have requested counselling.  43 people have requested a legal review and counselling.  16 people have requested information only. 13

File Review Process  The lawyers review the court file and make a recommendation to the Commissioner  Where a reviewing lawyer believes that Motherisk hair testing may have played a substantial role in the file, the case is presented at a Review Meeting for discussion by the full team of lawyers.  Commissioner Beaman then reviews the lawyer’s recommendation and decides whether additional information is required.  Commissioner Beaman then determines whether the parties should be notified that a potential legal remedy should be considered.  If it is determined that there may be a possible legal remedy, the person affected is then referred to their own legal counsel.  The Commission also offers counselling and alternative dispute resolution in the affected person’s community. 14

Substantial Impact “Substantial impact” when referring to a positive Motherisk tests means one of the following outcomes: The test result led to the creation of a status quo The test result changed the position of the children’s aid society respecting the disposition of the case The test influenced the decision of the court 15

Services Offered Where Substantial Impact Where the Commissioner determines that the Motherisk testing did have a substantial impact on the outcome of the case, affected persons will be offered the following services: Counselling assistance A meeting with the Commissioner and/or review counsel to discuss the outcome Legal referral Funding for legal services Any other services the Commissioner deems appropriate, having regard to the fundamental principles set out in the Terms of Reference. 16

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We need your help 20 To help notify potential affected persons about the Review and Resource Centre by:  Informing clients and/or community members  Sharing our information sheets/postcards  Putting up our posters in the community  Share your ideas with us about what else the Commission can do to ensure meaningful participation  Provide contact person for people to reach out to  Assist with names of counsellors in your area

To contact the Motherisk Commission  us at  Phone us at    Website: motheriskcommission.ca  Contact Marian Jacko directly at   (office)  (mobile) 21