New Brunswick will review cases involving Motherisk testing

New Brunswick will review all child protection cases involving unreliable hair-based drug and alcohol testing from the discredited Motherisk lab, following a CBC News investigation.

The provincial government had previously said it would only review closed cases if a family requested a second look.

The change of heart is the latest move by the province to address concerns about questionable hair tests, which critics fear may have been used to unfairly rip children away from their families.

• Motherisk Commission lawyer urges review in New Brunswick, Nova Scotia
• Discredited drug testing used in Nova Scotia, New Brunswick

One of those critics is Norman Bossé, New Brunswick's child and youth advocate. He argued a review was necessary because parents aren't likely to come forward on their own.

Bossé has offered to help the government conduct its review.

"I don't have an answer yet, but I think that could give the government some degree of credibility in the way they do the reviews of these files," he told CBC News.

"Even if they don't (ask) us directly, I know I will be reviewing their work at some point."

The Department of Social Development automatically reviews its child protection cases before they're closed.

Once those are examined for ties to Motherisk testing, they will start re-opening closed files, spokesperson Dave MacLean said in an emailed statement on Wednesday.

Social Development Minister Cathy Rogers is away and was unavailable for an interview.

"As the work on the open files progresses — these will be reviewed — we will also begin a review of files that had previously been closed."

The change of heart is the latest move by the province to address concerns about the questionable tests.

Last week, the provincial government said as of March 1 that it has stopped using hair testing from any lab as evidence in child protection cases. Ontario did the same last April.

The Department of Social Development also vows it will stop using hair testing from any lab as evidence against parents in court, MacLean said.

Hundreds of positive tests

As many as 1,400 people in New Brunswick had their hair sampled at Motherisk's Toronto lab, a CBC News investigation has revealed.

Hundreds of those people produced at least one positive test between 1997 and 2015, results the lab now admits may be inaccurate.

Ontario has launched a sweeping review into 25 years worth of cases, looking to see if hair-based drug testing was given too much weight by judges, and banned hair testing from all labs.

Even though Sick Kids warned New Brunswick's attorney general about Motherisk's flawed testing in January, it wasn't until this past week that government took action.

Admitting the science of hair testing has come into question, the province stopped using hair test results from all labs in child protection cases on March 1.

It's not clear what made the government change its mind and examine old cases.

Officials with the Department of Social Development didn't provide any information on Thursday about how its review will work, who will conduct it and how far back they will look.

Tests became 'strong evidence'

A positive or negative drug test has never been the sole reason for removing a child from a home, the New Brunswick government has said.

But Bossé said a failed test, which may have been inaccurate, likely hurt a parent's credibility.

"While it wasn't the only proof, it became very, very strong evidence," he said.

"We got very comfortable with the whole procedure, with the whole testing of these hair samples without asking a whole lot of tough questions. We find out now they in fact weren't reliable."

The problems at Motherisk shows the courts must have strong practices to test the evidence of people allowed to give expert opinions, Bossé said.

"We have to do a better job at saying, look, just because they say they're an expert, (it) may not be in fact true."

Different approach in N.S.

Close to 1,000 people from Nova Scotia had hair samples tested at Motherisk, but that province won't proactively look at old cases.

• Motherisk lab tests prompt fewer than a dozen Nova Scotians to come forward

The province, which continues to use hair testing in child protection cases, says fewer than a dozen people have contacted the province and only one asked for a formal review, which led to no change in the case.

Community Services Minister Joanne Bernard said a review of all files would take "an extraordinary amount of human resources" and they are only a small part of any child protection decision.

"I'd rather focus on the prevention of abuse and neglect in children in Nova Scotia and put my limited resources on that."

Halifax-based lawyer Kymberly Franklin believes the province could do more to publicize the problems with Motherisk.

"I find it very odd there's complete silence on the whole issue, given the severity of it and given the fact that Ontario has taken it very serious," she told CBC News on Friday.

"There's no difference between the cases in Ontario or the cases in Nova Scotia. They're all relying on the exact same testing."

Do you have a story tip you'd like CBC News to investigate? You can email reporter Karissa Donkin.