Appeals

Wrongfully Convicted Woman Acquitted Following Flawed Hair Test

Written on behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has quashed Joyce Hayman’s (“Hayman”) conviction for feeding her young son cocaine and has entered an acquittal as her conviction was based upon the discredited work of the former Motherisk drug testing lab (“Motherisk”) at Toronto’s Hospital for Sick Children (“HSC”). The appeal court admits that Hayman has “suffered an egregious miscarriage of justice”.

Chief Justice Michael Fairburn stated:

Where the harm has fallen is crystal clear. Ms. Hayman is truly the victim of a faulty criminal process.

Crown prosecuting lawyer, Elise Nakelsky, expressed her sympathies and stated that Hayman:

…should not have been convicted, and she has endured tremendous hardship as a result.

 MOTHERISK DRUG TESTING LAB

In the early 1990s, Motherisk conducted hair tests on 25,000 individuals across Canada. This was primarily for child welfare providers who relied upon the results to prove parental substance abuse. The results typically affected families without the funds or the ability to challenge the results of Motherisk’s tests. These results often influenced decisions to take children away from their parents. Some of these hair tests were also used in criminal cases, such as Hayman’s case, causing parents to be convicted of drugging their children.

In late 2014, retired judge Susan Lang (“Lang”) was appointed to review Motherisk’s hair tests. Lang determined that the hair tests were “inadequate and unreliable” evidence for use in court and resulted in harsh implications. Given the results of Lang’s findings, HSC was forced to close the Motherisk lab.

Commissioner Judith Beaman was appointed to identify and review child protection cases that relied upon Motherisk lab’s evidence. Although the Ministry of the Attorney General searched for criminal cases that were affected by the lab’s unreliable results, somehow Hayman’s case was overlooked.

HISTORY OF HAYMAN’S CRIMINAL COURT CASE

Following a judge alone trial, Hayman was convicted on June 5, 1998 of administering a noxious substance (cocaine) to her five year old son with the intent to endanger his life. She was also found guilty of criminal negligence. Hayman was sentenced to the maximum term of two years less a day. The trial judge’s findings were based upon the discredited work of Motherisk’s lab.

Hayman appealed from her conviction and sentence. She abandoned her conviction appeal, but proceeded with appealing her sentence, which was reduced to time served (the equivalent of nine months), and three years probation.

In 2019, Hayman was permitted to reopen her conviction appeal and with the consent of the Crown prosecutor she requested that both the conviction stay be set aside and that acquittals be entered.

HISTORY OF HAYMAN’S STRUGGLES

The appellant court’s decision describes Hayman’s childhood as “marked by serious emotional and physical neglect, as well as physical violence”. She was abusing drugs and alcohol in her early teens and was given to Children’s Aid Society (“CAS”) by her mother and was living in a group home.

Hayman gave birth at 23 years old and was struggling with the challenges of being a user of crack cocaine. She was a single mother with addiction issues and her son was presenting with behavioural challenges. Hayman had learned from a tv show that Ritalin was beneficial in dealing with behavioural issues so she proceeded to purchase it for her son.

One weekend, a babysitter took Hayman’s son to the hospital as a result of a suspected Ritalin overdose. Hayman admitted to medical professions how she obtained Ritalin and that she had been administering it to her child. Although the amounts of Ritalin Hayman had been administering was too high, a doctor at HSC agreed that the prescription was necessary and reduced the dosage.

On June 5, 1996 when Hayman’s son had another appointment at HSC, a urine sample obtained from the child found cocaine metabolites. As a result, the child was apprehended by CAS and placed in a foster home at which point police investigations began. Hayman was allowed unsupervised visits with her child once a week, which she participated in.

While her child was in foster care, two samples of his hair were taken and analyzed at the Motherisk lab. At her trial, Julia Klein (“Klein”), the laboratory manager, testified that the child’s hair contained the presence of cocaine in amounts that were high enough to “kill a child” and in quantities that one would find in “adult chronic users of cocaine”.   Klein concluded that Hayman’s child had used cocaine.

Hayman has been consistent in denying that she ever gave cocaine to her child and testified at her trial in this regard. Although she admitted having her own addiction issues, she maintained that she took steps not to expose the smoke from the drugs to her child.

Before the Court of Appeal, both Hayman and the Crown prosecutor relied upon fresh evidence (two published reports regarding Motherisk hair testing). The conclusions reached in these reports confirm that the work done by Motherisk was flawed and the testing “was inadequate and unreliable for use in child protection and criminal proceedings”.

According to the appeal court, without the Motherisk evidence, Hayman would not have been found guilty. Therefore, the court set aside Hayman’s convictions and entered an acquittal.

If you have been charged with a drug related charge or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.