Updated: May 1
For purposes of this sample cross-examination it is assumed that the cross-examiner has already laid the groundwork of the findings and recommendations of the Motherisk Hair Analysis Independent Review, conducted by The Honourable Susan E. Lang
Independent Reviewer. She examined the practices of Motherisk Hair Analysis at Sick Children's Hospital. She found that Motherisk's hair tests were forensic in nature, and that if such tests were to used "for a forensic purpose" in child protection or criminal law proceedings then the tests had to meet certain standards and needed to be done by an accredited laboratory. See these excerpts from the Executive Summary:
Use for Forensic Purposes
MDTL’s hair tests were forensic in nature, and the service it offered to child protection agencies and law enforcement was a forensic one. A hair test can be forensic even if it is never tendered as evidence and even if no court proceeding is ever initiated. What distinguishes a clinical test from a forensic test is the purpose behind the test. If the test is either carried out or used for a legal purpose, it is a forensic test.
To be used in child protection or criminal proceedings, forensic tests must be carried out in accordance with forensic standards. International forensic standards are articulated in several sources:
international guidelines on the science of hair testing (including the consensus statements of the Society of Hair Testing), as well as on the standards of forensic toxicology laboratories generally (including, for example, the guidelines of the Society of Forensic Toxicologists and the American Academy of Forensic Sciences);
the standards that are required to be met for the accreditation of forensic laboratories (including the requirements under ISO 17025:2005, General requirements for the competence of testing and calibration laboratories);
best practices that are commonly accepted and recognized by forensic toxicology laboratories around the world; and
the academic literature on the science of hair testing and the interpretation of hair test results.
Although the leaders of MDTL had relevant experience as research or clinical toxicologists, none of them had any formal training or experience in forensic toxicology. Indeed, none of them considered themselves to be forensic toxicologists. Perhaps this lack of training and experience is why neither MDTL nor the Hospital for Sick Children (SickKids or the Hospital) appears to have appreciated that the Laboratory was engaged in forensic work and that it was required to meet forensic standards. The result was inevitable: MDTL’s testing and operations fell woefully short of internationally recognized forensic standards.
Proficiency Testing and Accreditation
When questions were raised about MDTL’s analytical methods both on the Broomfield appeal and in its aftermath, MDTL and the Hospital relied on the Laboratory’s performance in proficiency tests as evidence of the robustness of its analytical methods. They should not have done so. For the most part, these proficiency test results were not based on test results that were actually generated by the Laboratory, and MDTL’s participation in proficiency testing therefore provided no evidence of the reliability or robustness of the methods used by the Laboratory.
Likewise, MDTL relied on its Ontario accreditation as a clinical laboratory as evidence of the quality and reliability of its hair-testing methodology. However, this accreditation process did not scrutinize or validate the adequacy and reliability of MDTL’s hair tests or the robustness of its analytical methods and interpretations.
[Note: "these proficiency test results were not based on test results that were actually generated by the Laboratory,"]
In Ontario, accreditation (including participation in proficiency testing) is mandatory for clinical laboratories, but is not a requirement for laboratories providing forensic services. If a laboratory can otherwise demonstrate that it adhered to internationally recognized forensic standards in its processes and procedures, the fact that it lacks accreditation is not determinative of whether its test results may be admissible in court or are otherwise reliable for forensic purposes.
It is also suggested that the cross-examiner lay the background of the Forensic Laboratories Act S.O. 2018, c. 3, which was enacted by the Ontario Legislature in response to the Motherisk Inquiry Report, in order to require accreditation for a forensic purpose. See the following excerpts:
2 (1) This section applies to a test in a prescribed category of test that is requested,
(a) for the purpose of legal proceedings;
(b) for some other legal purpose; or
(c) pursuant to an order of a court or other lawful authority.
(2) No person shall, in a laboratory, conduct a test to which this section applies, unless,
(a) the laboratory is accredited, by an accrediting body prescribed by the regulations, to a prescribed general standard; and
(b) if the test is a prescribed test, the laboratory is accredited, by an accrediting body prescribed by the regulations, to a prescribed standard for that test.
(3) A person who operates a laboratory shall ensure that no test is conducted in the laboratory in violation of subsection (2).
8 (1) Every person who contravenes subsection 2 (2) is guilty of an offence and on conviction is liable,
(a) in the case of a first offence, to a fine of not more than $25,000; or
(b) in the case of a second or subsequent offence, to a fine of not more than $50,000.
10 This Act binds the Crown.
Unfortunately, a subsequent government has never placed this Act into force. The Act does not clearly bind the police.
Quaere: Let's suppose that a provincial non-police entity like the CFS, that has accreditation FOR SOME PURPOSES, prepares a report for a forensic purpose, e.g. a Toxicology Letter of Opinion. Should they be "accredited" before they can provide that opinion? Should they display the logo of their accrediting body on their letter of opinion? May they display that logo if it was really the police that did the actual testing on which they opine?
Some purposes of this sample cross-examination included:
To establish that the Crown expert opinion is based upon an analysis done by an entity other than the expert or his/her lab
To establish that such a practice is not authorized by the accreditation given to his/her lab
To establish that the expert's lab accreditation includes toxicology but not breath testing
To establish that letters of opinion respecting evidentiary breath testing from the expert's lab no longer carry an accreditation seal
To establish that police services in the United States, including Los Angeles, Dallas, Orange County, Ventura County, and Richmond have accreditation related to evidentiary breath testing
but the Ontario police service in the case before the Court, does not.
[Cross-examination excerpt begins]
Q. So in other words, if I can be more specific, the opinion that you’ve given, the Toxicology Letter of Opinion that you’ve given is based on an analysis that is done by somebody other than you? A. Yes. Q. By a police service that is other than your employee – employer? A. That’s correct. Q. Now, as I understand it, the Centre of Forensic Sciences in Toronto is accredited by an entity called The American Society of Crime Laboratory Directors [indiscernible]. Is that right? A. Yes, that’s correct. Q. And if I could just show you the document that I believe to be – if I might approach the witness, Your Honour... THE COURT: Yes.
MR. BISS: Q. ...The document that details the scope of that accreditation, am I right in saying that it includes toxicology? A. Yes. Q. But it does not include breath testing? A. That’s correct. Q. And that’s because the Centre of Forensic Sciences does not do breath testing, except I gather, for experimental purposes? A. That’s correct. Yes and further, there is no
accreditation for breath testing currently by the ASCLD Lab or there’s another body, which ASCLD has joined. Q. I thought that there was accreditation for breath testing but just that no Ontario Police services have obtained it yet. A. No, there’s accreditation for laboratories that produce alcohol standards or any other compounds that would be used in breath testing. So since the – for many years we have not provided the alcohol standard, there’s no need for us to obtain that accreditation.
[At this point, the cross-examiner should contradict the "No ... accreditation for breath testing" indicted by the CFS expert by proving breath testing accreditation documents from various US police services. See the examples below from Los Angeles Police Department, Dallas County Southwestern Institute of Forensic Sciences, Orange County Crime Laboratory, Ventura County Sheriff's Office, Virginia Department of Forensic Science.]
[Cross-examination excerpt continues]
Q. But my point is that the Centre of Forensic Sciences does not have accreditation in respect of breath testing, but it does have accreditation in relationship to toxicology... A. Yes. Q. ...Right? Now, in your report, [the standard Toxicological Letter of Opinion requested by the Crown], page 2 of 2, I don’t see any signature down the bottom of page 2 of the 2. Am I right in saying that? A. That’s correct. Q. And not only that, but there’s no certification accreditation seal that’s been placed at the bottom of the report either. There’s no report from the American Society of Crime Laboratory Directors Laboratory Accreditation Board at the bottom of the report.
MR. BISS: Q. Now, the reason why I ask that, sir is that – and I’ve noticed that there is no such seal from the ASCLD Lab International Program at the bottom of page 2 of 2, right? A. Yes, that’s correct. Q. The last trial that I did ... with a
similar letter from a toxicological opinion from the Centre of Forensic Sciences contained such a certificate from the American Society of Crime Laboratory Directors Laboratory Accreditation Board. A. That’s correct. Q. And I understand that what happened in between these two reports is that there was a complaint made and the American Society of Crime Laboratory Directors Laboratory Accreditation Board asked the Centre of Forensic Centres to take their seal off their reports of letters of toxicological opinion in relationship to evidentiary breath testing? A. That’s correct. Q. And the reason for that is that the American Society of Crime Laboratory Directors Laboratory Accreditation Board was quite prepared to accept the accreditation of the Centre of Forensic Sciences in toxicology where the Centre of Forensic Sciences was doing it’s own analysis, for example with blood, urine or serum, right? A. That’s correct. Q. But they were not prepared to accept that the toxicological accreditation of the Centre of Forensic Sciences by the American Society of Crime Laboratory Directors Laboratory Accreditation Board would permit the CFS to do letters of opinion where the analysis was done by somebody else, specifically a breath analysis, right? A. That’s correct. Q. And I want to suggest to you that that’s important because your opinion, your legal – I’m sorry, your scientific opinion, your toxicological opinion that you’ve provided to the court is dependent upon information from somebody else? A. That’s correct, yes.