Canadian Lawyer

10 F E B R U A R Y 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP S emi-etired Ontario Court of Appeal justice Judith Beaman has been tapped to assist individu- als who may have been affected by Motherisk Drug Testing Laboratory flawed hair-strand testing. Ontario Attorney General Madeleine Meilleur made the announcement days after former justice Susan Lang's indepen- dent review of the hair-testing practices at the lab in Toronto's Hospital for Sick Children was released Dec. 15. Lang found the now-defunct Motherisk lab never met international forensic-testing standards for hair-strand drug and alcohol testing. "Given my conclusion that the hair- strand drug and alcohol testing used by MDTL between 2005 and 2015 was inadequate and unreliable for use in child protection and criminal proceedings, the use of that evidence has serious implica- tions for the fairness of those proceedings and warrants a further review of individual cases or classes of cases," Lang wrote. She wrote that in addition to the lab's extensive use in child-protection proceed- ings, its hair-test results were also used as evidence in six criminal proceedings. They included the case of Tamara Broomfield, who was convicted and spent 49 months in jail for allegedly giving her baby cocaine. Her conviction, in part due to the flawed testing and medical evidence, led to the review. Her conviction was quashed by an appeal court in October 2014, when fresh forensic evidence brought to light the flaws in methodology at Motherisk. "This is a symptom of a larger prob- lem, and the problem is forensic testing is being conducted in labs without proper procedures and protocols in place and it's being conducted by labs that simply don't have the qualifications to do the testing they're presenting in courts," lawyer Daniel Brown, who was involved in Broomfield's defence, told Law Times. "We hope that the findings of the inquiry will have broader application." Peter Marshall, a former children's aid lawyer and now president of Recovery Science Corp., which has collected samples for Motherisk testing, says because public confidence has been shaken, it would be appropriate for the commissioner's man- date to allow review of the practices at other labs. He says increased education for judges and lawyers in terms of how they interpret scientific evidence will be a vital element in restoring public confidence as well. Brown says that often when dealing with scientific, forensic evidence the courts "weren't taking a close enough look at the science, that lawyers weren't challenging the science, and that prosecutors didn't understand the limits of the science when they were presenting this evidence in court." He says that now that will signifi- cantly change and he expects a far higher level of scrutiny by all parties in court. He says he hopes the commissioner's mandate will include ways to train a jury on inter- preting such evidence as well. "We assume science is black and white, it's not open for interpretation, and there's only one right answer when really it's shades of grey," says Brown. "This was, by all accounts, junk science the way it was being conducted; these were presumptive tests that were being presented as if they were the gold-standard testing." SickKids released an apology following the release of Lang's review. It also said that the hospital now requires all summons and subpoenas to its clinicians and scientists be reviewed by the legal department and is implementing a training program to ensure staff who prepare reports and tes- tify in court have the appropriate training and context with regards to their roles and responsibilities. — NEIL ETIENNE neil.etienne@tr.com Ontario judge to review cases affected by faulty hair testing AXIOM ENTERS CANADIAN MARKET A fter 10 years building up its in-house on-demand alternative services firm, Cognition LLP announced in January it has sold a portion of its business to U.S.-based Axiom. Cognition will now separate into two distinct entities: Axiom Cognition serving corporate clients with in- house departments, and Caravel Law, a law firm serving small and medium-sized enterprises without internal legal departments. Cognition co-founder Joe Milstone said the deal represents a "natural evolution." Axiom and Cogni- tion have worked together over a number of years referring clients and exchanging leads across different markets. Milstone said Cognition had grown two lines of business that were "increasingly independent of each other." "We thought in order to do them both justice we should separate them more formally and this was the best way to scale the shakeup we had already started," he said. "We were incredibly pleased with how clients reacted to the potential change and many of them were well aware of Axiom and how it can add the scale and investment in technology that you only get on a global scale." Will McKinnon, Axiom's senior vice president of new market development, said: "Expanding our model to Canada has been on the list of no-brainers. It was a matter of when, not if for us." Axiom Cogniton will be Axiom's sixth international office and 16th overall. He cited Toronto's large financial services hub, technology, and life sciences companies as well as a strong industrial base as sectors that have embraced Axiom's model elsewhere. Milstone said the 50 lawyers currently working with Cognition will have the choice of working for the new Axiom Cognition combination or Caravel. There will, however, be a big push to grow the lawyer roster at Axiom Cognition as its client base grows. "There are a lot of Axiom clients who are not yet Cognition clients who handle their legal work here through traditional firms. We think there will be an immediate opportunity to support those companies, which will create demand," said McKinnon. — JENNIFER BROWN jen.brown@tr.com

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