R. v. Hayman, 2021 ONCA 242

Her Majesty the Queen v. Hayman 1 [Indexed as: R. v. Hayman] Ontario Reports Court of Appeal for Ontario Fairburn A.C.J.O., Doherty and Sossin JJ.A. April 14, 2021 155 O.R. (3d) 321 | 2021 ONCA 242 Case

Summary Criminal law — Appeal — Fresh evidence on appeal — Accused convicted in 1998 of administering noxious substance to her child with intent to endanger life — Conviction for criminal negligence stayed — Director and manager of testing laboratory testifying at trial that cocaine was found in child's hair — Reports published by Ministry of Attorney General after trial concluded that the laboratory's testing methods were flawed and inadequate for child protection and criminal proceedings — Reports easily met criteria for admission of fresh evidence — Accused's appeal allowed — Conviction and stay set aside and acquittals entered.

Criminal law — Publication ban — Accused convicted in 1998 of administering noxious substance to her child with intent to endanger life — Conviction for criminal negligence stayed — Director and manager of testing laboratory testifying at trial that cocaine was found in child's hair — Reports published by Ministry of Attorney General after trial concluded that the laboratory's testing methods were flawed and inadequate for child protection and criminal proceedings — Reports easily met criteria for admission of fresh evidence — Accused's appeal allowed — Publication ban on accused's name set aside at her request as she ought to be allowed the dignity of having wrongful conviction corrected in the media.

The appellant was a single mother dealing with her own drug and alcohol addictions and raising a son with significant behavioural challenges. To confront those behavioural issues, she began purchasing Ritalin from an acquaintance. A babysitter took the appellant's child to the hospital as a result of a suspected overdose of Ritalin. The child was determined to be fine. A doctor concluded that a prescription was necessary but in a lower dosage than what the appellant had been administering. At a subsequent hospital visit, a urine sample from the child was found to contain cocaine metabolites.

No evidence was led at trial as to the nature of the urine screening process or its reliability. As a result, the child was apprehended by the Children's Aid Society and placed into a foster home. Two samples of the child's hair were sent to the Motherisk Drug Testing Laboratory, which found that the samples contained cocaine. The appellant was charged and the matter went to trial before a judge alone. The appellant denied administering cocaine to her child. The director of the Motherisk laboratory was qualified as an expert witness in chemistry and hair analysis.

The laboratory manager was qualified as an expert pediatrician and toxicologist. In 1998, the trial judge delivered brief oral reasons for judgment in which he pointed to two pieces of evidence in support of his conclusion that the appellant had administered crack cocaine to her child: the urine analysis and the expert evidence of the witnesses from Motherisk. The appellant was convicted of administering a noxious [page322] substance to her child with the intent to endanger his life. She was also found guilty of criminal negligence causing bodily harm despite a finding that no bodily harm was established.

That conviction was stayed and the appellant was acquitted on two other counts. An appeal from conviction was abandoned. Two reports, published in 2015 and 2018 by the Ministry of the Attorney General, revealed that the work done at Motherisk was seriously flawed and that its testing was inadequate and unreliable for use in child protection and criminal proceedings. On the basis of that fresh evidence, the appellant was permitted to reopen her conviction appeal. With the support of the Crown, she asked that both the conviction and stay be set aside and acquittals entered. Held , the appeal should be allowed.

There was a reasonable basis upon which to question the validity of the conviction due to the court's reliance on the Motherisk evidence adduced at trial. The two reports constituted highly cogent, admissible evidence not available at the time of trial and easily met the criteria for the admission of fresh evidence. Crown counsel correctly acknowledged that the record revealed little information as to the details of the testing completed on the child's hair and that there was no evidence at trial about any confirmatory testing having been done.

Without the Motherisk evidence, the appellant would have been found not guilty. The conviction for administering cocaine was set

aside and an acquittal entered. The stay on the criminal negligence charge was set aside as, on the trial judge's own findings, theappellant was entitled to an acquittal on that count at that time. This appellant suffered an egregious miscarriage of justice and is thevictim of a failed criminal process. A publication ban on the appellant's name was set aside. The request was made by the appellant and the Crown took no objection.

Inlight of the wrongful nature of the conviction, resting on faulty science, the appellant was allowed the dignity to have the mattercorrected in the media should they choose to report on it. The publication ban in respect of her son's name remained. Cases referred to R. v. H. (J.), (ON CA), [1999] O.J. No. 1308, 118 O.A.C. 354, 135 C.C.C. (3d) 338, 42 W.C.B. (2d) 104 (C.A.);Truscott (Re), [2007] O.J.

No. 3221, 2007 ONCA 575, 225 C.C.C. (3d) 321, 226 O.A.C. 200, 50 C.R. (6th) 1, 75 W.C.B. (2d) 479 Authorities referred to Beaman, Judith C., Harmful Impacts: The Reliance on Hair Testing in Child Protection — Report of the Motherisk Commission (OntarioMinistry of the Attorney General, 2018) Lang, Susan E., Report of the Motherisk Hair Analysis Independent Review (Ontario Ministry of the Attorney General, 2015) APPEAL from conviction by J.F. Hamilton J., dated June 5, 1998, for administering a noxious substance. James Lockyer, for appellant. Elise Nakelsky, for respondent.

BY THE COURT: -- [page323] Overview [1] As set out below, the appellant has suffered an egregious miscarriage of justice. Where the ultimate responsibility lies is not aquestion before this court. Where the harm has fallen is crystal clear. The appellant is truly the victim of a failed criminal process. [2] The appellant faced a four-count indictment. On June 5, 1998, she was convicted after a judge alone trial of administering a noxioussubstance to her own five-year-old child, with the intent to endanger his life. The noxious substance was said to be cocaine.

She was alsofound guilty of criminal negligence, despite a finding that bodily harm was not established. A stay of proceedings was later entered on that count. She was acquitted on the other two counts.2 [3] On July 22, 1998, the appellant was sentenced to the maximum reformatory term of two years less a day. [4] The trial judge's findings were rooted in evidence relating to the now discredited work of the Motherisk Drug Testing Laboratory("MDTL"). [5] While the appellant originally appealed from conviction and sentence, the conviction appeal was later abandoned.

On April 22, 1999,the sentence appeal was granted on the basis of errors in principle having been made. The sentence was reduced to one of time served,the equivalent of about nine months, and three years of probation: R. v. H. (J.), (ON CA), [1999] O.J. No. 1308, 135C.C.C. (3d) 338 (C.A.), at paras. 25-26. [6] In his reasons for reducing the sentence, Rosenberg J.A. noted, at para. 2, that the offence was "difficult to comprehend", in partbecause it appeared that the appellant "bore [no] ill will towards her child".

These were prescient words. [7] On November 28, 2019, this court made an order on consent of the parties that the appellant be permitted to reopen her [page324]conviction appeal. Almost 23 years following her conviction, this is her conviction appeal. She asks that both the conviction and stay beset aside and acquittals entered. The Crown joins the appellant in her request for this relief. [8] These are our reasons for granting that relief. History of this Matter [9] It would be a serious understatement to suggest that the appellant has had a tragic life.

[ 10 ] She was born into a family that could not properly care for her. Her childhood was marked by serious emotional and physical neglect, as well as physical violence. [ 11 ] By her early teen years, the appellant was abusing drugs and alcohol. The appellant's mother eventually gave her over to the Children's Aid Society ("CAS"), and while the appellant was living in a group home, her brother died in a house fire. She started living with a man in an abusive relationship before she even reached adulthood. This resulted in her wardship with the CAS being terminated. [ 12 ] The appellant's addictions grew in size.

By the time she was 23 years of age, she was bringing her first child into the world, while at the same time facing the challenges of being a heavy user of crack cocaine. [ 13 ] The appellant was a single mother, grappling with incredible addiction issues and raising a son who was presenting significant behavioural challenges, including aggression toward his mother. To confront those behavioural issues, the appellant started purchasing the drug Ritalin from an acquaintance.

She had learned of the benefits of this drug in dealing with behavioural issues by watching a television program. [ 14 ] The situation came to the attention of the authorities when, one weekend, the appellant's child was taken to the hospital by a babysitter as a result of a suspected overdose of Ritalin. While he was fine, this hospital interaction eventually led to the appellant and child coming into contact with the Hospital for Sick Children ("HSC"). The appellant did not hide from the medical professionals how she had obtained the Ritalin or the amounts she had been administering to her child.

While the doctor she consulted at HSC determined that the administered amounts were too high, the doctor thought a prescription was necessary and simply reduced the dosage. That doctor was of the view that the appellant was "sincerely . . . seeking assistance for her son" and she was "sincerely wish[ing] to follow through on [the hospital's] recommendations". [page325] [ 15 ] At the appellant and child's next HSC visit on June 5, 1996, a urine sample was taken from the child. It was found to contain cocaine metabolites.

No evidence was led at trial about the nature of the urine screening process or its reliability. [ 16 ] As a result of that urine test, though, the child was apprehended by the CAS and placed into a foster home, and a police investigation ensued. During that time, the appellant was permitted unsupervised visits with the child once a week. According to CAS records, she was "very consistent with her visits" and the child seemed "happy and content to see his mother". This is consistent with how the appellant and child's relationship was described by others, including the child's biological father.

The biological father said that the appellant was a "very, very good mother" to the child, and a babysitter described her as a "very loving and caring" mother. [ 17 ] Two samples of the child's hair were taken while he was in foster care. Those samples were sent to the MDTL. At that time, Dr. Gideon Koren was the director of the laboratory and Julia Klein was the laboratory manager. They were qualified to testify as experts at trial. Neither explained the methodology they used when examining the child's hair. [ 18 ] Ms. Klein was qualified as an expert in chemistry and hair analysis.

She testified that the child's hair contained the presence of cocaine and its metabolites in amounts that are high enough to "kill a child" and that are "[n]ormally" what one would see in "adult chronic users of cocaine". In her view, it was "unlikely that one single exposure would give such a level in the hair of a child" and "it was not [from] external deposition but [from] the consumption of cocaine". She reached the "scientific conclusion" that the child had been "given cocaine, used cocaine". [ 19 ] As for Dr.

Koren, qualified as an expert pediatrician and toxicologist, he maintained that the level of cocaine found in the child's hair made it "much more likely that cocaine was incorporated in the hair through the bloodstream that nourished the hair and much less likely from the environment". [ 20 ] The appellant testified. As she had from the outset and to this very day, she denied administering cocaine to her child.

While she did not shy away from acknowledging her addiction issues, she explained the significant precautions she took to ensure that her child was not exposed to her smoking crack cocaine, including the safe storage location she used for the drugs, the precautions she took when she would consume the drugs, and the steps she took to ensure that her child was not exposed to the smoke from the drugs. [page326] [ 21 ] The trial judge delivered brief oral reasons for judgment.

He pointed to two pieces of evidence in support of his conclusion that the appellant had administered crack cocaine to her child: the urine analysis; and the "expert evidence" of Dr. Koren and Ms.

Klein at the MDTL. [ 22 ] While there was some evidence of cocaine found in the child's urine, as detected at HSC, the Crown on appeal does not dispute the lack of probity attaching to that evidence, particularly because there was no evidence at trial as to the nature of the urine screening process or its reliability. [ 23 ] This left the MDTL evidence, about which the trial judge said this: . . . [T]he cocaine metabolite was found in [the child's] hair. Dr. Koren and Ms.

Klein, both experts in detecting cocaine from hair, amongst other things, said that the reading . . . was not through a one time use but more likely obtained from sustained use over a 3 month period; that is the cocaine that was found in the hair samples that they tested. . . . [The reading they testified to] indicates the use [of cocaine] is a chronic use of at least 3 times a week for a period of 3 months. This reading was not obtained from accidental exposure.

The amount found in the hair indicates numerous usages to obtain this reading. [ 24 ] Ultimately, the trial judge concluded, based upon that "expert evidence", that the appellant "must have administered the drug to [her child]". [ 25 ] Eventually, the child was adopted by another family. The appellant and her child have had one contact since 1998: a telephone call in 2018. [ 26 ] In 2003, about four years after she was released from prison, the appellant gave birth to her second child. He was immediately

apprehended by the CAS at the hospital and adopted by another family. The appellant has never had contact with her second child. [ 27 ] In an affidavit filed before this court, the appellant says the following: From my childhood on, I have not had a good life and I am not proud of my drug addictions. If I can get rid of this unjust conviction, I will be able to hold my head high for the first time in a long time. I never gave cocaine to [my child] and I never left . . . any in a place where he could access it. [ 28 ] The appellant has no criminal record other than the conviction under appeal.

She has maintained her innocence from the outset. The Fresh Evidence [ 29 ] The parties come to this court on a united front. They rely upon fresh evidence that we need not explore in detail. The fresh [page327] evidence rests most heavily on two reports: The Honourable Susan E. Lang, Report of the Motherisk Hair Analysis Independent Review (Ontario Ministry of the Attorney General, 2015); and The Honourable Judith C. Beaman, Harmful Impacts: The Reliance on Hair Testing in Child Protection -- Report of the Motherisk Commission (Ontario Ministry of the Attorney General, 2018).

These are highly probative and critically important pieces of work. There is no dispute that the conclusions reached in both reports, as they pertain to the MDTL, are unassailable.

Most importantly for this appeal, the reports reveal that the work done at the MDTL was seriously flawed and that the testing "was inadequate and unreliable for use in child protection and criminal proceedings": Report of the Motherisk Hair Analysis Independent Review , at p. 4. [ 30 ] Being highly cogent, admissible evidence that was not available at the time of the trial, the two reports easily meet the criteria for the admission of fresh evidence: Truscott (Re) , [2007] O.J.

No. 3221 , 2007 ONCA 575 , 225 C.C.C. (3d) 321 , at para. 92 . [ 31 ] Crown counsel correctly acknowledges that the record in this case reveals little information as to the details of the testing completed on the child's hair and that there was no evidence at trial about any confirmatory testing having been done, the absence of which "leads to a reasonable basis upon which to question the validity of the conviction due to the court's reliance on the [MDTL] evidence adduced at trial". We agree. [ 32 ] Without the MDTL evidence, the appellant would not have been found guilty. We admit the fresh evidence.

We set aside the conviction for administering cocaine and enter an acquittal on that count. We set aside the stay on the criminal negligence cause bodily harm count as, on the trial judge's own findings, the appellant was entitled to an acquittal on that count at that time. Publication Ban [ 33 ] This leaves one matter left to be addressed: the publication ban. [ 34 ] On November 28, 2019, when this court allowed the appellant to reopen her conviction appeal, a publication ban was made in relation to her name, as well as her son's name. She asks that the publication ban on her name be set aside.

The Crown takes no objection to this request. In our view, it is appropriate to do so. [ 35 ] There was considerable publicity in and around the time of the appellant's trial. The appellant was always identified by name in the media. Indeed, it is as a result of the still existing, archived newspaper articles that a reporter, Rachel Mendleson, [page328] brought to the attention of counsel in 2018 this matter and expressed concern over the appellant's case.

Given the date of conviction, it would not have come to the attention of the earlier inquiries. [ 36 ] In light of the wrongful nature of the conviction in this case, resting on what can only be described as faulty science, the least that can be done is to allow the appellant the dignity to have this matter now corrected in the media should they choose to report on it. Therefore, the publication ban on the appellant's name is set aside. To be clear, the publication ban remains in respect of her son's name.

Conclusion [ 37 ] Correcting this matter has taken the effort of a number of people, all of whom we acknowledge for their dedication to justice. In particular, we recognize Rachel Mendleson of the Toronto Star for identifying this case and bringing it to the attention of counsel, as well as Mr. Lockyer and Ms. Nakelsky for their diligence in pursuing the matter. [ 38 ] The appellant has faced a life of challenges. At every turn, she needed help, and at every turn she did not receive it.

Despite the fact that she was a young, single mother who struggled with a history of mistreatment, poverty, and serious addictions, the record reveals strong attempts on her part to deal with what she faced. This was true at the time that she was raising her young child and it is true today. Indeed, the fresh evidence indicates that the appellant stopped consuming crack cocaine several years ago. [ 39 ] We cannot right everything for this now 53-year-old appellant.

In addition to many other life challenges, she lost her children, she served time in prison, and she has carried the burden of a very serious criminal conviction for almost a quarter of a century. [ 40 ] What we can do today is to bring a conclusion to the criminal justice system's impact on her life. She deserves to, as she says, hold her "head high for the first time in a long time". We express our sincere hope that today will constitute one step toward that end.

Appeal allowed. Notes 1 Vous trouverez la version française à la p. 329, post. 2 The appellant had been charged with criminal negligence causing bodily harm through the administration of cocaine. The trial judge found no evidence of bodily harm. Therefore, he found the appellant not guilty as charged, but guilty of what he described as the lesser and included offence of criminal negligence simpliciter. By the time of sentencing, the parties agreed that this finding had been made in error because criminal negligence simpliciter is not an offence known to law.

While the trial judge accepted that the erroneous finding had been made, he rejected the defence request to find the appellant not guilty on that count, instead choosing to stay the proceedings. The other two counts related to allegations pertaining to the administration of the drug Ritalin. The appellant was acquitted on these counts. End of Document