TORONTO — A proposed class action lawsuit alleges Ontario's renowned forensic sciences centre has been illegally retaining sensitive genetic data from people who voluntarily submitted bodily samples as part of a criminal investigation and were then excluded as suspects.
In his unproven statement of claim against the province, the proposed representative plaintiff argues the centre's failure to destroy the DNA records violated his privacy and provisions of the Criminal Code.
The proposed action seeks $30 million in general damages and another $2 million in punitive damages.
According to a statement of claim filed in Superior Court, members of the proposed class voluntarily submitted DNA samples via police to the Centre of Forensic Sciences starting in June 2000 to help in criminal probes. None was convicted as a result, the statement asserts.
While the actual samples were destroyed, results of the analysis were not and have been made available to individuals at the centre, the claim alleges.
"Class members had the reasonable expectation that should their DNA profile not match the DNA profile from a criminal investigation, (their) DNA results and records would be destroyed, rendering the results permanently inaccessible to any individual," the claim alleges.
"The DNA results and records created by the (centre) were retained indefinitely or not destroyed within a reasonable time period, notwithstanding the fact that the class members were convicted of no criminal offence."
The centre did not respond to a request to discuss the issue. Ontario's Ministry of Community Safety and Correctional Services, which oversees the centre, referred questions about the lawsuit to the Ministry of the Attorney General, which confirmed receiving the statement of claim.
"Ontario will defend the action. As this matter is subject to litigation, it would be inappropriate to comment further," ministry spokesman Brian Gray said.
Successful DNA profiling from a person's bodily fluids or tissue has become a critical tool in many criminal investigations — allowing for near certainty in including or excluding a suspect. Ontario's forensic science centre is considered one of the foremost such facilities in North America.
Under the Criminal Code, voluntarily provided samples and the resulting DNA analysis "shall be destroyed" and access to the analysis "permanently removed" once testing has ruled out a match to material from a crime scene.
The proposed plaintiff, Micky Granger, described as a migrant worker, gave police a bodily sample as part of their investigation into a violent crime in Bayham, Ont., in 2013, the suit says. The centre allegedly failed to destroy the analysis of his DNA after he was excluded as a suspect, according to his claim.
"The defendant's retention of DNA results, produced by innocent individuals to assist in a police investigation, would offend the reasonable person’s sense of privacy," his claim asserts "The defendant's actions were unlawful and highly offensive, causing distress and anguish to the plaintiff and class members."
In 2016, the Independent Police Review Director, which oversees police in Ontario, criticized provincial police for their 2013 investigation into a complaint from a woman in Elgin County that a "black migrant worker" had sexually attacked her. According to the director, police requested samples from virtually every local migrant worker of colour even if they did not match the description the woman had given of the suspect.
Further details about Granger and how he knew his data had allegedly been kept were not immediately available. Nor was it clear why the centre might have kept the profiles and who might have had access to them.
Colin Perkel, The Canadian Press