Twenty years ago, in a child-abuse case that made headlines for the shocking nature of the crime, a crack-addicted Toronto mother was convicted of repeatedly feeding her young son cocaine, based on drug-testing evidence from two Motherisk experts.
In his reasons for judgment, the judge cited test results of the 4-year-old’s hair, which purported to show “sustained use over a three-month period.”
This was not a case of “accidental exposure,” Justice John Hamilton concluded in the 1998 decision. “The amount found in the hair indicates numerous usages.”
Joyce, whose last name is being withheld to protect her son’s identity, has always maintained her innocence. She may have had drug problems. She may have made poor choices. But she insists she never fed her child cocaine.
Beginning in the early ’90s, Motherisk conducted at least 35,000 hair tests on 25,000 individuals, primarily for child welfare providers, who relied on the results as proof of parental substance abuse. These were often families on the margins, without the means or know-how to effectively challenge the results of Motherisk’s hair tests, which influenced decisions to take away their children.
In many respects, Joyce fit this profile: she was a single mother and an admitted crack addict, who relied on public assistance. But this was not a child-protection case. She was on trial for a serious crime.
Joyce served nine months in jail before she was released on probation. After decades of being maligned and disbelieved, she assumed she would have to carry the weight of her conviction for the rest of her life.
That changed last month, after her case was unearthed by the Star as part of an ongoing investigation into the drug-testing scandal at the Hospital for Sick Children’s former Motherisk lab. Despite efforts by Ontario’s attorney general to identify and review criminal cases involving Motherisk’s hair tests, which were discredited in 2015, Joyce’s conviction was missed.
The oversight raises questions about the comprehensiveness of the government’s internal review, and whether other convictions based on Motherisk testimony have gone unnoticed.
Nearly four years after serious concerns about the reliability of the once-trusted hair tests emerged, her story shows how difficult it is to trace or measure the lasting damage caused by Motherisk’s flawed forensics.
Joyce is now fighting to clear her name with the help of veteran wrongful-conviction lawyer James Lockyer, whose defence of another Toronto mother convicted of similar charges first raised doubts about Motherisk’s hair tests in late 2014.
“I will do all I can to quash her conviction for a crime that now I have every reason to believe she didn’t commit,” Lockyer said.
A spokesperson for the attorney general has confirmed that a review of Joyce’s case is underway.
In an interview, Joyce said, “When I was going to court, I knew I didn’t do it, but nobody believed me. Nobody listened to me. It’s about time somebody heard.”
Court records depict Joyce as a troubled young mother, struggling to manage the hyperactive, aggressive behaviour of her son when she was charged in the summer of 1996.
The 28-year-old had battled crack addiction since her late teens, following a traumatic childhood in Toronto, marked by physical abuse and neglect, and the “complete rejection” of Joyce by her mother, a pre-sentencing report states.
But Joyce was a loving and caring mother, according to the boy’s father, David, who maintained an on-and-off relationship with Joyce, provided financial support and visited her downtown apartment regularly.
During Joyce’s preliminary inquiry, David testified that she was “always attentive” to her son, even when she was using.
“She was good with him,” David told the court. “Lots of times she’d be reading him books, calming him down.”
Child welfare workers had visited Joyce’s apartment on two occasions, after receiving complaints, but both times they determined the concerns were unfounded.
“They came to my house and found that I was a good mother,” she said in an interview. “I had food in my fridge. My house was clean.”
By the time her son was 3, Joyce was having trouble controlling him. She also worried about his speech and communication skills, which appeared to be lagging.
She sought treatment at various hospitals with little success. After seeing a TV program about Ritalin, used to treat attention-deficit hyperactivity disorder, she took matters into her own hands. She bought Ritalin from a friend, and started giving it to her son. She believed the pills were helping.
In April 1996, while in the care of a babysitter, the boy somehow got into the Ritalin bottle and took two or three pills. Worried that he had overdosed, the babysitter took the child to Toronto Western Hospital. The doctor determined he was not displaying overdose symptoms, but after speaking with Joyce, who expressed concerned about the boy’s behaviour and development, referred him to a clinic at Sick Kids.
There, Joyce admitted to buying Ritalin from a friend. Pediatrician Dr. Patricia Parkin expressed concern that the high dose Joyce had been giving the boy could be dangerous in young children, who were not typically prescribed the drug until age 6.
Parkin prescribed a much lower dose with an eye toward weaning him off the medication, and attempted to set up a community support plan to help with parenting skills. Joyce agreed to bring in her son for regular checkups, including urine screening, and to stick to the new prescription. (Parkin declined to comment for this story, citing doctor-patient confidentiality.)
At a follow-up appointment, on June 5, 1996, the boy’s urine tested positive for cocaine. The positive urine screen was a red flag, an indication that the child was exposed to cocaine in the past few days.
The hospital notified children’s aid. The boy was apprehended, and a sample of his hair was collected for another type of drug testing at Sick Kids that held the promise of tracing the boy’s long-term history of cocaine exposure, including the amount in his system and how it got there.
There is some uncertainty about how the hair-testing was performed in Joyce’s case. The available court records contain few details about the procedures the lab used, and the Motherisk experts who testified — former lab manager Julia Klein and former lab director Dr. Gideon Koren — declined to provide this information to the Star.
In a recent email, Klein said, “I do not remember testifying 20 years ago in the … case and I cannot answer your questions about the case.”
Koren, who founded Motherisk in 1985, did not respond to a request for comment.
Sick Kids also declined to respond to questions, citing ongoing litigation, except to say that hospital CEO Dr. Michael Apkon and Dr. Denis Daneman, who retired last year as pediatrician in chief, “were not aware of (Joyce’s) case.”
There is good reason to doubt the reliability of any hair-testing evidence the lab produced before it was closed in 2015.
As a Star/CBC investigation revealed last year, a Colorado court threw out Motherisk’s evidence in a pretrial hearing in a murder case in 1993. In that case, in which Klein testified, the lab was criticized by the prosecutor, judge and two scientists for: failing to verify preliminary results with a confirmation test; not following standard procedures; operating as a forensic lab without proper accreditation; and not meeting the high bar for evidence presented in court.
These same concerns were identified 22 years later in a government-commissioned review of Motherisk’s hair tests from 2005 to 2015. Retired Ontario judge Susan Lang concluded the testing was “inadequate and unreliable” for use in criminal and child protection cases. She said it had “serious implications for the fairness of those proceedings,” and recommended a review of those cases.
Last summer, an Ontario government committee completed a review of six criminal convictions involving Motherisk’s hair tests, including the case of Tamara Broomfield, who was convicted in 2009 of feeding her son cocaine. Broomfield’s successful appeal of the drug-related charges blew the lid off the Motherisk scandal. (Koren provided the hair-testing evidence at her trial.)
Aside from the Broomfield case, the attorney general has said there were serious concerns about only one other conviction, but has refused to identify the cases reviewed, although criminal charges are on the public record. Earlier this year, the ministry declined the Star’s request through freedom-of-information legislation for a copy of a report on the committee’s review. The Star is appealing.
A spokesperson for the attorney general confirmed that Joyce’s case was “not referred to the (committee) during its initial review,” and that it will now be examined.
In general, he said the ministry’s search for affected criminal cases included canvassing Crown law offices and obtaining information from the Motherisk lab. He declined further comment.
But there is at least one source of historical information the government apparently failed to consider: newspapers.
The Star stumbled across Joyce’s case by chance, while combing through the paper’s archives for stories about Motherisk’s experts.
“Boy’s hair samples loaded with cocaine,” read the headline from Joyce’s June 1998 trial.
It was one of several stories published in the Star on the case, which was also covered by the Toronto Sun, Canadian Press and Globe and Mail. The articles don’t contain the word Motherisk, but the Sick Kids experts who testified about hair testing they performed in the case are identified as Julia Klein and Gideon Koren.
The court records make clear that the hair-testing evidence played a pivotal role in Joyce’s conviction.
According to the transcript, Klein testified that after washing the hair sample repeatedly to eliminate “external” contamination, she detected levels that would typically be found in “adult chronic users of cocaine,” which she defined as someone who uses three times a week for at least three months.
There were also high levels of cocaine metabolite, which is produced when the drug is broken down by the body, suggesting the cocaine had been consumed, she said.
Koren testified that out of hundreds of samples the lab had tested in recent years, the levels of cocaine found in Joyce’s son’s hair were “in the highest range … we have encountered.
“(It) is much more likely that cocaine was incorporated in the hair through the bloodstream that nourished the hair and much less likely from the environment,” Koren said. (The hair testing did not measure the Ritalin in the boy’s system.)
Joyce told the court that she smoked crack only after her son was in bed, opening the apartment windows and tucking a towel under his door. She testified that the boy may have been exposed through second-hand smoke or accidentally eating “a crumb off the floor,” the Star reported at the time.
“I just said, ‘I never did that. I never gave it to him,’ ” she recalls. “They kept saying I force-fed my son cocaine. They kept saying it and kept saying it, and I just told them I wasn’t going to talk to them anymore.”
Nobody believed her “because I was a drug addict,” she said. “Drug addicts are liars and thieves, that’s what everybody thinks.”
Joyce was acquitted of the charges related to Ritalin. Justice Hamilton found Joyce had always been up-front with doctors about giving the medication to her son and “at all times was seeking help.” He also found no evidence that the boy had suffered bodily harm.
But because the cocaine was detected in the boy’s urine as well as in his hair at levels that could not have come from second-hand smoke, Hamilton concluded that “he must have obtained this drug from within the apartment.”
“As (Joyce) is the only source, I find that she must have administered the drug to him,” he wrote. “As Dr. Koren said, cocaine is not meant to be given to children and is a dangerous and noxious drug and the amount found in the son was a dangerous amount and thereby, by giving it to him or allowing him to get it, she endangered his life, and I find her guilty.”
Joyce’s lawyer argued for house arrest, but Hamilton was not swayed.
“Such conduct of giving a young child cocaine cannot be rewarded with a conditional sentence. The public would be outraged,” he said. “This is a serious violation to the victim and (Joyce’s) conduct does not justify clemency.”
She was sentenced to the maximum jail term of two years less a day.
Prison was tough on Joyce. She said she was targeted by other inmates, who did not look kindly on those convicted of hurting kids.
“They know all about you before you even get in the front door,” she said. “I got hurt many, many times. I was scared every day that I was going to get killed.”
In an interview, David said he was “mad as hell” when Joyce was convicted, and tracked down the “best lawyer” to handle her appeal.
That lawyer was James Lockyer.
In a 1998 letter filed in court, Lockyer told David that the trial judge “may have wrongly excluded the possibility that the cocaine in (the boy’s) hair was a consequence of second-hand cocaine smoke.” But to render a solid opinion on the merits of a conviction appeal, he said he would need to consult an independent expert on the hair evidence and obtain a full trial transcript — which he estimated would cost roughly $3,000.
However, Lockyer said he had enough information to “strongly recommend” a sentence appeal, in part because Joyce had no previous criminal record. David took him up on the offer. In April 1999, the Court of Appeal reduced Joyce’s sentence to time served and three years’ probation.
“The commission of this offence is difficult to comprehend,” Justice Marc Rosenberg wrote on behalf of the three-judge panel in a unanimous decision. “It does not appear that (Joyce) bore any ill will towards her child or that she was unconcerned for her child’s welfare.”
Joyce’s problems persisted. She continued to struggle with crack, and the nature of her conviction made it tough to find work. Before her conviction, she and David consented to their son becoming a Crown ward. She had supervised visits with her son for several years, but the visits stopped when he started questioning her about why he was taken away.
“Children’s aid … said it’s not appropriate for him to know. I feel that if he asks me a question about himself that I should answer. He has the right to know,” she said.
“They started telling me he wasn’t available,” she said of her son. “After that I just stopped calling them. I got the hint.”
Fifteen years after Joyce’s sentence appeal, Lockyer would play a key role in exposing the problems at Motherisk, by producing fresh expert evidence in Broomfield’s appeal that criticized the reliability of the hair tests.
Lockyer did not initially make the connection between Joyce’s case and the flawed hair tests, but as soon as he read his old file last month, he could see that “this was another case in which Motherisk … had caused a miscarriage of justice,” he said.
Within 24 hours, Joyce was in his office, hashing out a plan to overturn her conviction.
Joyce had no idea about the problems at Motherisk.
“I was shocked. I was overwhelmed. I was angry,” she said. “I keep wondering, why didn’t (the government) tell me or say anything? I’ve had to live with this for 20 years.”
Lockyer said he has asked the Crown to join him in an application to the Court of Appeal to quash Joyce’s conviction. His preliminary conversations with the other side suggest the Crown is “concerned about this case and that it hasn’t been resolved,” he said.
Michael Lacy, the president of the Ontario Criminal Lawyers’ Association, said the fact that Joyce’s case was overlooked by the attorney general raises doubts about the “legitimacy of the internal review.”
Lacy is urging the province to appoint a reviewer who is “independent of the ministry” to cast the net wider, and examine affected convictions in a transparent, impartial way.
However, the search for additional cases will be a formidable challenge for any reviewer, because there is no tracking system for various types of forensic evidence admitted in individual cases, and some of the key players at Motherisk have not been forthcoming.
During Justice Lang’s review of Motherisk, in which participation was voluntary, both Koren and Klein declined requests to be interviewed, choosing to respond to Lang’s questions in writing. When asked whether he had testified in any cases besides that of Broomfield, Koren replied: “I do not recall testifying in other cases regarding hair testing.” Klein, for her part, told Lang that she was called to testify in court beginning in 2002, although both the 1993 Colorado case and Joyce’s 1998 trial pre-date that period.
Joyce, 50, now lives in a rooming house in North York, where she is recovering from the crack addiction that has dogged her for more than half her life. She is taking a computer course and relies on public assistance.
But for the first time in decades, she has hope — that she will be able to reconnect with her son, now 26, and start anew.
“It would be nice to have a clean record. Then I can get a real job,” she said. “I want to put on an application, ‘No criminal record.’ That’s what I’d like.”
Rachel Mendleson is a Toronto-based investigative reporter. Follow her on Twitter: @rachelmendleson