Case Summary
Joyce Hayman had a tremendously difficult childhood: she experienced poverty, neglect, and abuse, and her little brother was killed in a house fire after she had been placed in a group home. Hayman developed drug addictions by age 15, and had been using crack cocaine for a significant period by the time her son was born in 1991.1
As Hayman’s son grew older, he developed behavioural issues including hyperactivity and aggressive outbursts towards her. She sought help from several hospitals, but assistance was not forthcoming. Hayman had heard from a television program that people with these symptoms could benefit from Ritalin; she purchased this medication from an acquaintance, seeking to provide her son with the needed treatment herself.2
When Hayman left her son with a babysitter, she would provide his Ritalin to be administered in her place. In the spring of 1996, her babysitter’s older brother took Hayman’s now four-year-old son to Toronto’s prestigious Hospital for Sick Children (SickKids). He was concerned that the boy had had a Ritalin overdose, which proved not to be the case.3 Hayman was open with hospital staff that she had been trying to treat her son’s behavioural difficulties with this medication. The SickKids doctor agreed that Ritalin was indeed required and wrote him a prescription for this drug, though at a reduced dosage. The doctor’s impression was that Hayman was “sincerely . . . seeking assistance for her son” and “sincerely wish[ed] to follow through on [the hospital’s] recommendations.”4
However, at a follow-up appointment in June 1996, a urine sample from Hayman’s son tested positive for cocaine. Hospital staff called police and the Children’s Aid Society; Hayman’s son was apprehended and placed in foster care. Samples of the boy’s hair were taken for further testing at SickKids’ Motherisk Drug Testing Laboratory (MDTL).5 In July 1996, Hayman was charged with two counts each of administering a noxious substance and criminal negligence causing bodily harm, in respect of both cocaine and Ritalin (notwithstanding that the boy’s treating physician had gone on to prescribe the latter substance).6
Dr. Gideon Koren, MDTL’s director, and Julia Klein, the laboratory manager, gave expert evidence at Hayman’s trial.7 Koren and Klein testified that the boy’s hair had such a high concentration of cocaine that these results could not be explained by environmental exposure (such as second-hand smoke). Rather, he must have been fed cocaine on multiple occasions. Klein stated that this amount of cocaine would ordinarily be expected in “adult chronic users” and could “kill a child.”8
Hayman also testified, insisting that she had never given cocaine to her son. She was frank with the court that she was addicted to crack cocaine, but took precautions to ensure that her son would at no time come into contact with this substance. Hayman explained that she stored the cocaine in a safe location away from her child and would place a towel under his door to protect him from second-hand smoke.9
Justice Hamilton, the trial judge, convicted Hayman on the count of administering a noxious substance, cocaine, to her son. She was acquitted on the counts pertaining to Ritalin. Despite finding that no bodily harm had occurred, Justice Hamilton held that Hayman had given cocaine to her child with the intent to endanger his life.10 He reached this conclusion based on the boy’s urine and hair sample test results, as interpreted by Klein and Koren.11 In his decision, Justice Hamilton summarized the MDTL experts’ evidence and then stated that therefore Hayman “must have administered the drug to [her child].”12
On July 22, 1998, Hayman was sentenced to imprisonment for two years less a day.13 Her son remained in foster care and was eventually adopted. She would not see him again. When her second son was born in 2003, he too would be apprehended from the hospital where Hayman gave birth to him, and adopted with no further contact.14
Hayman initially sought to appeal her conviction as well as her sentence. However, she had to abandon the conviction appeal because she could not afford the $3,000 required to order the trial transcript and retain a forensic hair analysis expert.15 She was denied bail pending appeal, in part because the court was “not satisfied that bail should be granted in this case if it is a sentence appeal only.”16
Hayman’s sentence appeal, at least, succeeded: the Ontario Court of Appeal found that the trial judge had imposed an erroneously harsh sentence “simply because [she] . . . had previously tried [drug] treatment programmes before and failed.”17 The Court reduced Hayman’s sentence to time served—nine months’ incarceration—followed by three years’ probation.18 In its ruling, the Court made the prescient observation that Hayman’s offence was “difficult to comprehend” since it did not appear that she “bore any ill will towards her child or that she was unconcerned for the child’s welfare.”19
In 2014, fifteen years later, the Ontario Court of Appeal overturned Tamara Broomfield’s similar conviction for administering cocaine to her son. Broomfield’s counsel had presented fresh evidence challenging MDTL’s test results, which had found astonishingly high levels of cocaine in the boy’s hair.20
Justice Susan E. Lang was then appointed to lead an independent review into the “adequacy and reliability” of MDTL’s hair sample drug tests.21 Justice Lang’s report: identified serious deficiencies in MDTL’s drug testing results and methodology; observed that Koren did not have any training or experience in forensic toxicology; and criticized MDTL’s lack of proper record-keeping, oversight, and accreditation.22 Justice Lang concluded that the laboratory’s hair tests were “inadequate and unreliable” for use in child protection and criminal proceedings.23 MDTL hair analysis results were found to have played a role in six criminal convictions (not including Hayman’s) and thousands of child protection matters.24
In light of this disturbing information, Justice Judith C. Beaman was appointed to establish a Review and Resource Centre which would identify and support people affected by MDTL’s flawed hair testing.25 In her 2018 report on the extensive harm inflicted by this program, Justice Beaman observed that:
The testing was imposed on people who were among the poorest and most vulnerable members of our society, with scant regard for due process or their rights to privacy and bodily integrity. Many people experienced the testing, particularly when it was done repeatedly, as intrusive and stigmatizing.26
Justice Beaman further found that the MDTL program disproportionately harmed Indigenous and Black families, who are overrepresented in Ontario child protection proceedings.27
The following year, SickKids Hospital shut down the Motherisk program.28 Faced with a College of Physicians and Surgeons disciplinary investigation, Gideon Koren surrendered his medical licence in 2019 and agreed to never again practice medicine in Ontario.29
In November 2019, the Ontario Court of Appeal granted Hayman’s application, with the Crown’s consent, to reopen her conviction appeal. Hayman and the Crown jointly requested that the Court overturn her conviction and acquit her.30
The Court found that the drug test results underpinning Hayman’s conviction could not be relied on.31 Regarding the SickKids urine test, the Court agreed with Crown counsel that this result had no value because “there was no evidence . . . as to the nature of the urine screening process or its reliability.”32 Regarding the MDTL hair test results, the Court relied on the 2015 and 2018 reports “reveal[ing] that the work done at the MDTL was seriously flawed” and documenting its abject failure to provide appropriate drug testing services for use in a forensic context.33
Notably, Justice Lang found in her 2015 report that the hair tests used at MDTL were meant for screening purposes only, as was clearly stated on the tests’ packaging. In other words, a negative test would rule out drug use, while a “positive” result would merely indicate the need for confirmation testing, which is more sensitive and accurate.34 These preliminary tests posed the risk of false positives, that is, erroneous indications that a drug was found in a sample when in fact no drug was present.35 Justice Lang found that false positives could occur for various reasons including the test’s responding to multiple drugs or other compounds with similar chemical structures. For instance, a hair sample that tested positive for opiates might contain heroin, codeine, or both. MDTL’s frequent failure to wash the hair samples also increased the risk of false positives.36 Of relevance to Hayman’s case, numerous MDTL hair samples that had tested “positive” for cocaine turned out not to contain this drug upon confirmation testing.37
MDTL represented its preliminary, risky results as if they were obtained through proper confirmation testing procedures.38 Justice Lang observed that “no forensic laboratory in the world” had relied on screening tests in this way.39 Moreover, lab personnel misinterpreted and improperly communicated the numerical results that these tests provided.40 This led decision makers to rely on “forensic” drug test results and concentration ranges that lacked any scientific basis.41
In light of this extensive fresh evidence, the Court found that Hayman had “suffered an egregious miscarriage of justice” and was “truly the victim of a faulty criminal process.”42 The Court stated that Hayman’s conviction was "rooted in . . . the now discredited work of the Motherisk Drug Testing Laboratory,” without which she “would not have been found guilty.”43 The Court further observed that Hayman had “faced a life of challenges” in which “[a]t 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.”44 The Court found that “[t]his was true at the time that she was raising her young child and it is true today. Indeed, the fresh evidence indicates that [Hayman] . . . stopped consuming crack cocaine several years ago.”45
In April 2021—23 years after her wrongful conviction—Hayman was acquitted.46 As the Court noted, this outcome could not “right everything for [her]. . . . 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.”47 Hayman had described her conviction in an affidavit prepared for her appeal as having “taken away all my self-respect”, stating that “I do not think I have ever really recovered my spirit.”48 Referring to Hayman’s affidavit, the Court observed that what lay in its power was “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’.”49 The Court expressed the hope that Hayman’s acquittal could serve as “one step” towards her achieving this end.50