Calling the Motherisk Commission’s final report a “massive disappointment,” a top official with the Association of Iroquois and Allied Indians said Ontario’s review of tainted child protection cases failed to fulfil its promise to Indigenous people, who were disproportionally impacted by the hair-testing scandal.

In a letter to Attorney General Yasir Naqvi this week, the Alliance’s deputy grand chief Gordon Peters blasted the recently concluded review as a “secretive” process that looked at only a fraction of the thousands of known child protection cases involving faulty drug and alcohol hair-testing from the Hospital for Sick Children’s Motherisk lab.

Peters said the government-ordered Motherisk Commission “made unilateral decisions and selective omissions” and “ignored Indigenous communities and families,” contrary to its mandate.

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“The Commission, in our view, conducted its work in a manner that retrenched colonial policies and systems which serve little purpose but to remove First Nations children from First Nation families and communities,” he wrote.

It is harsh criticism of the independent review — which was supposed to “ensure meaningful participation” of Indigenous people — from an organization that represents 20,000 First Nations citizens from seven communities in Ontario.

A lawyer for the commission said on Thursday that many efforts were made to meet with and inform Indigenous communities of the review and that those communities were invited to suggest cases for the commission to investigate. Because of these consultations, the commission sought out cases where children were placed with family members, which is more common in Indigenous communities.

In an email, a spokesperson for the ministry of the attorney general said the province is “confident” that Commissioner Judith Beaman “has fulfilled her mandate and done everything in her power to ensure public confidence in the child protection and criminal justice systems.”

But according to Peters, the discussions the commission had with his people were largely one-sided.

“They said, ‘Here is the issue and here’s how we’re going to fix it,’” he said in an interview.

Peters said he told the commission “very clearly” that Indigenous communities should be involved in determining which files to open as well as in the review of cases involving their children, but that did not happen.

“When you get down to the important matters of making decisions we have absolutely zero role,” he said.

With the commission’s mandate concluded, he is now calling on Naqvi to review every Motherisk case and “immediately” notify all affected children and parents.

However, while the ministry spokesperson acknowledged that “what happened to the children and families impacted by the flawed Motherisk testing was heartbreaking,” he said the government is “not looking to reopen the work performed by the Motherisk Commission.”

Motherisk’s flawed hair-testing was used for decades, in at least eight criminal cases and thousands of child protection cases across Canada, where the results were used as proof of parental substance abuse. Beaman found the reliance on the testing in decisions to remove children from their families was “manifestly unfair and harmful” and was imposed on “the poorest and most vulnerable members of our society, with scant regard for due process.”

After reviewing nearly 1,300 affected Ontario child protection files, Beaman concluded in her final report last week that 56 families were “broken apart” by Motherisk’s faulty testing. In these cases, she found the testing played a significant role in decisions to remove children.

Although Indigenous individuals make up less than 3 per cent of Ontario’s population, Indigenous families, who are overrepresented in the child protection system, were involved in nearly 15 per cent of the files the commission reviewed.

In her report, Beaman said the commission met with Indigenous leaders and communities across the province, such as chiefs, band councils, and Indigenous Friendship Centres. She said these discussions “helped us understand the Motherisk testing issue in the context of Indigenous peoples’ distinct history and experiences,” including residential schools and the ’60s Scoop, which saw the federal government remove thousands of Indigenous children from their homes, beginning in the 1950s, and place them with non-Indigenous foster families.

The commission also sent materials to Indigenous organizations and advertised with media that were “mainly targeted for Indigenous and multicultural audiences,” she said.

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Lead counsel for the commission Lorne Glass said his team “did take many, many, many steps to engage with people in the Indigenous community” and listened to their concerns.

“If we hadn’t seen their case, they were invited to come forward and give us their case,” he said, adding that commission counsel included an Indigenous lawyer, who played a “meaningful part” in the review process.

In her report, Beaman said the commission “made every effort to identify and review all of the cases involving Motherisk testing where children were permanently removed from their families and were still under the age of 18.” The commission also reviewed cases upon request.

The commission produced 32 recommendations aimed at preventing a similar tragedy, but in only four cases has it succeeded in returning lost children to their parents, in part, because, once finalized, adoptions are virtually impossible to undo, Beaman noted.

Peters said the community reacted “with anger” early on, when they were told by the commission that legal remedies in these cases would be difficult to achieve — an explanation he remains unable to accept.

“If you steal a child under faulty pretenses, that child has to come back,” he said.

An earlier review of Motherisk by former justice Susan Lang, which deemed the testing “inadequate and unreliable” for use in legal proceedings, estimated that 16,000 individuals were tested at the request of Ontario’s child welfare agencies from 2005 to 2015 alone. More than 9,000 of those individuals tested positive for drugs or alcohol.

Sick Kids made millions from the testing. It closed the Motherisk lab in the spring of 2015 during Lang’s review, which was launched following a Star investigation.

In selecting cases to review, Glass said the commission relied on records from Sick Kids and the courts, and focused primarily on cases where there was a possible legal remedy available under the Child and Family Services Act. He said these choices were guided by the government order that appointed Beaman to lead the commission in early 2016, as well as Lang’s recommendations.

In her December 2015 report, Lang said a second review “that examines every child protection proceeding in which (a Motherisk) test was obtained would not be efficient, effective, or necessary.”

The Motherisk Commission was given two years and a $10-million budget to review 25 years of child protection cases.

In his letter, Peters said the commission ought to have had a broader focus and criticized it for not taking “appropriate steps to notify the thousands of individuals who were tested, all of whom could be clearly identified using the databases made available to Justice Beaman.”

“It is possible that thousands of files involving Indigenous children being illegitimately removed from their families as a result of Motherisk testing have been completely missed and/or ignored,” he said.

Rachel Mendleson can be reached at rmendleson@thestar.ca

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