



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hayman, 2021 ONCA 242

DATE: 20210414

DOCKET: C67731

Fairburn A.C.J.O., Doherty and
    Sossin JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Joyce Rita Hayman

Appellant

James Lockyer, for the appellant

Elise Nakelsky, for the respondent

Heard and released orally: April 12, 2021 by
    video conference

On
    appeal from the conviction entered by Justice John Fraser Hamilton of the Ontario
    Court of Justice (General Division) on June 5, 1998.

REASONS FOR DECISION

Overview

[1]

As set out below, the appellant has suffered an
    egregious miscarriage of justice. Where the ultimate responsibility lies is not
    a question 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
    noxious substance to her own five-year-old child, with the intent to endanger his
    life. The noxious substance was said to be cocaine. She was also found 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.
[1]

[3]

On July 22, 1998, the appellant was sentenced to
    the maximum reformatory term of two years less a day.

[4]

The trial judges 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. Hayman
(1999), 135 C.C.C. (3d) 338 (Ont. 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 part because 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
    conviction appeal. Almost 23 years following her conviction, this is her
    conviction appeal. She asks that both the conviction and stay be set 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 appellants mother eventually gave her over to
    the Childrens 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 appellants 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 appellants 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 hospitals
]
recommendations.

[15]

At the appellant and childs 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 childs
    relationship was described by others, including the childs 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 childs 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 childs hair.

[18]

Ms. Klein was qualified as an expert in
    chemistry and hair analysis. She testified that the childs 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 childs 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.

[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 childs 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
    childs] 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 evidence rests most heavily on two reports: The Honourable Susan E. Lang,
Report of the Motherisk Hair Analysis Independent Review
(Toronto:
    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
(Toronto: 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 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 childs 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 courts 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 judges 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 sons 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 appellants 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, brought to the attention
    of counsel in 2018 this matter and expressed concern over the appellants 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 appellants name is set aside. To be
    clear, the publication ban remains in respect of her sons 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 systems 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.

Fairburn
    A.C.J.O.

Doherty
    J.A.

L.
    Sossin J.A.





[1]

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.


