Proceeding under the Class Proceedings Act, 1992

J.T. Akbarali J.

Overview

[1] DNA testing has become a tool used routinely in criminal investigations. Police may seek to compare a DNA sample from a known person (a “reference sample”) to a DNA profile of unknown origin, that has been developed from items associated with a crime scene or victim of a crime. The results of the comparison allow them to determine whether to exclude the donor of the reference samples as the source of the DNA profile of unknown origin.

[2] This certified class proceeding concerns DNA profiles that were prepared and retained by the Centre of Forensic Sciences (“CFS,” or the defendant). The profiles originated from the forensic analysis of reference samples that were provided by class members on consent.

[3] The plaintiff alleges that the collection and retention of their DNA profiles violates s. 8 of the Canadian Charter of Rights and Freedoms, and the class members’ common law right to privacy under the tort of inclusion upon seclusion. He seeks aggregate and punitive damages for himself and the class.

[4] The trial of the certified common issues took place before me. These are my reasons.

Brief Background

The Plaintiff’s Experience

[5] In 2013, the plaintiff, Mr. Granger, was a migrant farm worker living and working in Vienna, Ontario. Around that time, a violent sexual assault occurred in southwestern Ontario. From the crime scene, the police recovered a DNA sample of unknown origin that they believed to be linked to the perpetrator. While investigating the assault in October 2013, OPP officers came to the farm where Mr. Granger worked seeking to obtain consent samples from all migrant workers for comparison against the crime scene sample.[^1]

[6] The police gave Mr. Granger a form to sign. He now understands it was likely a consent form. He was not given a copy of the form. The police retained the original. However, it is common ground that he signed the standard consent form that was in use at the time, and which has been produced in this action.

[7] The police took Mr. Granger into a van, where they took a buccal swab from him (that is, a DNA sample taken by wiping a piece of cotton inside his mouth). Samples were also taken from 95 other migrant workers. The samples were delivered to the CFS for forensic analysis.

[8] Subsequently, on November 8, 2013, the CFS reported to the OPP that all the migrant workers’ samples were excluded as matches for the crime scene sample. The physical DNA samples taken from the migrant workers were destroyed.

[9] At issue in this case is what happened to the results of the DNA testing, not just of the migrant workers, but of all class members who provided consent samples for forensic analysis during the class period.

The Certified Class

[10] The definition of the class on whose behalf the plaintiff seeks redress is:

All persons who voluntarily provided a bodily substance sample, which was subject to forensic DNA analysis by the Ontario Centre of Forensic Sciences and for whom the forensic analysis created results which established that the voluntarily given sample did not match any bodily samples obtained within the meaning of s. 487.05(10(b) of the Criminal Code, for the time period June 30, 2000 to April 1, 2022.

[11] The certified class originally ended on the date of the certification order, without prejudice to the plaintiff bringing a future motion within the proceeding to certify an amended class. The class definition was later amended to end the class period on April 1, 2022. On this date, the CFS changed its lab practices and ceased retaining DNA profiles, except in cases where a reference sample is a match to the sample against which it was compared.

[12] The parties agree that a reasonable estimate of the class size is 7,267 class members. It is also agreed that this is an underestimate.

The CFS’s Processes

[13] At this juncture, I set out a summary of the CFS’s processes.

[14] The CFS’s Biology Program Area provides forensic DNA analysis for criminal investigations in Ontario. Part of its mandate includes testing reference samples for comparison against DNA samples of unknown origin. Reference samples may be obtained after an individual signs a consent form, they may be seized under warrant, or they may be discarded samples. As I have noted, this case focuses on reference samples obtained voluntarily.

[15] There is no question that the CFS’s services are important to the investigation of crimes and the administration of justice. The results of the CFS’s testing can lead to the successful identification and prosecution of offenders, and they can exonerate people wrongly suspected or convicted of crimes.

[16] The demand for the CFS’s DNA analysis services has ballooned over the duration of the class period. Currently, the CFS tests over 25,000 individual samples annually, 12% of which are reference samples.

[17] To enable it to process the volume of testing required, the CFS uses highly automated procedures. It tests samples in batches of up to 68. Any given batch will contain different kinds of reference samples and the samples typically relate to different cases. The CFS describes batch processing as “necessary for the CFS to meet the continually increasing demand for forensic DNA testing as batching creates efficiencies of scale”.

[18] Reference samples are submitted by police forces to the CFS for testing. The process by which the samples are submitted has changed over the years. Before 2012, samples were submitted with paper documentation that would often, but not always, identify the donor who provided the reference sample by name. After 2012, the CFS advised police not to include the name of the reference sample donor, but rather, to use a “reference sample code.” In addition, the samples will typically have a Police Item Number and/or a seal number that identifies the item.

[19] To track samples, the CFS uses a Laboratory Information Management System (“LIMS”) that assigns unique numbers to each case and each item of evidence. The LIMS is used to record the chain of custody of any given item of evidence and to maintain an electronic record of the case and its associated items.

[20] At the risk of stating the obvious, without a tracking system, the CFS would not be able to relate the results of its forensic DNA testing back to a sample from a particular individual. There would thus be no value in the testing process, if law enforcement could not eventually learn if the person from whom a sample was obtained was a match, or not, to the DNA profile in question.

[21] Tracking is also necessary for quality assurance and ensuring that the CFS’s work is verifiable. Being able to verify its work may be important in cases where the results of DNA testing is used in the prosecution of an accused. Because CFS does not know in advance which samples will match a DNA sample from a crime scene, it must track all samples in the same manner.

[22] The CFS’s testing process produces two categories of outputs: one physical, and one electronic.

[23] The physical output is called a DNA extract, which is a purified form of DNA extracted from the biological sample provided to the CFS for testing. The DNA extracts of persons who are excluded as a DNA match to the crime scene sample are destroyed. Any unused biological sample (that is, sample remaining after the DNA extract has been taken from it) is returned to the police force that originally submitted the sample; it is the police force’s responsibility to destroy it. This case does not concern physical biological samples or DNA extracts. There is no allegation that physical biological samples and DNA extracts are not destroyed once a reference sample is excluded.

[24] The electronic output of the forensic testing is called a DNA profile; it is the electronic results of the DNA analysis.

[25] The DNA profile in question is a 16-locus profile which compares 15 short tandem repeat (“STR”) loci on the human genome, plus the Amelogenin locus, which is an indicator of biological sex. The 15 STR loci are components of a commercial test kit designed for identity testing, which uses the 15 STR loci because: (i) there is substantial variation at each locus that can be used to discriminate between individuals; (ii) the loci are independent, such that the results obtained at one locus do not influence the results obtained at any of the other loci; and (iii) the same loci are used by forensic laboratories throughout North America, and elsewhere in the world, enabling comparison of profiles generated in different laboratories. I refer to this type of DNA profile as an STR profile.

[26] An STR profile provides an indication of biological sex, but it does not provide specific information regarding an individual’s physical traits, like hair or eye colour. It is highly unlikely that two individuals (apart from monozygotic twins) would have identical forensic STR profiles. There is debate between the parties as to what other information can be gleaned from STR profiles. I return to this question in my analysis of the issues.

[27] An STR profile is not the only kind of DNA profile that can be generated. A second form of genetic variant that is widespread in the human genome is a single-nucleotide polymorphism (“SNP”). Each SNP is a locus in the human genome at which individuals vary. SNPs are a primary form of genetic variability of interest in biomedical genetics, as SNPs show statistical and causal connections to various diseases. SNP testing can allow an investigator to make inferences or predictions with respect to information including physical traits, like hair or eye colour. SNPs are also used in population genetics research on relationships among different human populations. Commercial ancestry testing companies type individuals for SNP sets. I refer to a DNA profile that types SNP loci as a SNP profile. The CFS has not performed SNP testing on the reference samples obtained on consent.

[28] The STR profile the CFS generates is recorded in various formats:

a. The raw data is produced as an electronic file called a .hid file;

b. An excel table containing data from all the samples tested in the same batch is produced;

c. Case-specific results sheets are created from the excel table and distributed to the specific case files to which they pertain. Forensic scientists use the case-specific results sheets to compare the DNA profile of the reference sample against the other DNA profiles in the case.

d. Graphical representations of all the samples tested in the same batch are produced in a single PDF. These graphical representations are called electropherograms. Forensic scientists use a hard copy of the electropherograms to compare the DNA profile of the reference sample(s) against the other DNA profiles in the case.

[29] The end result of the CFS’s forensic analysis — is the reference sample a match or not to the sample against which it was compared — is provided to the requesting police service, but the police service does not receive a copy of the DNA profile of the sample donor.

[30] The plaintiff alleges that the CFS was required, by both the provisions of the Criminal Code, R.S.C. 1985, c. C-46 and the standard consent form, to permanently remove the results of its DNA testing of reference samples when there was no match. The plaintiff alleges that the CFS failed to do so until April 2022, the end date of the class period.

[31] The plaintiff relies on s. 487.09(3) of the Criminal Code, which provides:

Bodily substances that are provided voluntarily by a person and the results of forensic DNA analysis shall be destroyed or, in the case of results in electronic form, access to those results shall be permanently removed, without delay after the results of that analysis establish that the bodily substance referred to in para. 487.05(1)(b) was not from that person.

[32] Section 487.01(1)(b) refers to DNA which is collected from a crime scene and may belong to a perpetrator of a crime.

[33] There is no dispute that the reference samples provided by class members were samples covered by s. 487.09(3) of the Criminal Code.

[34] The class members signed standard form consents to provide biological samples. The standard form consent was developed in 2005 by the Ministry of the Attorney General of Ontario and approved by the Ontario Crown Brief Standards Committee. It is a province-wide consent form that police services across the provinces are mandated to use by the provincial government. It is the same form that Mr. Granger signed. No other standard form consents were produced in this litigation.

[35] The standard form consent to provide biological samples includes a paragraph that adverts to the requirements under s. 487.09(3):

The Criminal Code says that samples of bodily substances voluntarily given shall be destroyed and electronic data related to those samples will be permanently removed once it is determined that the bodily substance does not match to the crime under investigation.

[36] In my analysis of the issues below, I consider the CFS’s procedures in greater detail, particularly as they relate to its intake and tracking of reference samples. I also review the actions it takes after testing determines that a reference sample is not a match, in the context of the Criminal Code requirements, consent, and the law relevant to the plaintiff’s claims.

Issues

[37] The certified common issues are set out below. I have re-ordered them to reflect the order in which I will address them:

a. Is a DNA profile a “result” within the meaning of s. 487.09(3) of the Criminal Code?

b. Did the defendant’s seizure of bodily substances from the class members or retention of the results of DNA tests conducted on those bodily substances and associated records,

i. Breach the class members’ rights under s. 8 of the Charter?

ii. If the answer to common issue b(i) is yes, were those breaches justified under s. 1 of the Charter?

c. What limitation period applies to the causes of action advanced in this case?

d. Does the defendant’s conduct amount to the tort of intrusion upon seclusion?

e. If the answer to common issue b(i) is yes, and b(ii) is no, are damages available to the class under s. 24 of the Charter?

f. Is this an appropriate case for an award of aggregate damages?

g. Does the conduct of the defendant warrant an award of punitive damages?

Preliminary Issue: The Expert Evidence

[38] The plaintiff proffered evidence from two proposed experts, Dr. John S. Waye and Dr. Noah Rosenberg. The defendant proffered evidence from one proposed expert, Dr. Frederick Bieber. No party objected to the admission of the other party’s proposed expert evidence. However, the court retains a gatekeeping role and as a result, I must rule upon the admissibility of the proposed expert evidence.

[39] Determining whether to admit expert evidence involves a two-stage analysis. In the first stage, there are four threshold requirements that must be established: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 19 and 23, citing R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-25; see also R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40 (C.A.), at para. 48. These requirements include:

a. Relevance, which at this stage means logical relevance;

b. Necessity in assisting the trier of fact;

c. Absence of an exclusionary rule; and

d. A properly qualified expert, which includes the requirement that the expert be willing and able to fulfil the expert’s duty to the court to provide evidence that is impartial, independent, and unbiased.

[40] If the threshold requirements are met, the court moves on to the second stage of the analysis. There, the judge, as gatekeeper, determines whether the benefits of admitting the evidence outweigh the potential risks. Relevant factors include legal relevance, necessity, reliability, and absence of bias.

[41] I consider each proposed expert in turn.

Dr. John S. Waye

[42] Dr. Waye holds a Ph.D. in medical biophysics from the University of Toronto. He is board-certified as a clinical molecular geneticist by the American Board of Medical Genetics and Genomics. His work experience includes holding the position of Molecular Genetics Specialist with the Central Forensic Laboratory of the RCMP in Ottawa, where he developed and implemented a forensic DNA typing program.

[43] Since 1990, Dr. Waye has been employed at Hamilton Health Sciences, where he currently is the Director of Laboratory Genetics and Head of Service for Molecular Diagnostic Genetics. He is a Professor in the Department of Pathology and Molecular Medicine at McMaster University.

[44] Dr. Waye has extensive experience giving evidence as an expert in forensic DNA typing, and he has authored or co-authored hundreds of publications relating to medical applications of DNA technology and forensic DNA profiling.

[45] Dr. Waye gave affidavit evidence in this proceeding on forensic DNA typing including STR profiles and the information that can be gleaned from them. He was not cross-examined on his evidence.

Dr. Noah Rosenberg

[46] Dr. Rosenberg holds a Ph.D. in Biological Sciences from Stanford University and a Postdoc from University of Southern California in Molecular and Computational Biology. He is a Professor of Biology at Stanford University where he holds the Stanford Professorship in Population Genetics and Society. He leads a computational research laboratory at Stanford that investigates mathematical and statistical problems in the field of genetics. Among other things, the laboratory develops statistics for understanding genetic variability among people in problems of anthropological, biomedical, evolutionary, and forensic interest.

[47] Dr. Rosenberg has been widely published in leading scientific journals and is a frequent speaker at academic conferences. He has been awarded numerous grants and fellowships, has held numerous advisory roles, been involved in many reviewing activities, and participates as a member on many PhD committees.

[48] Dr. Rosenberg’s report and oral evidence focuses on the extent to which STR profiles can be matched to SNP profiles, and the implications of the possibility of making such matches. This is an area in which Dr. Rosenberg has completed research in his laboratory and on which he has published.

Dr. Frederick Bieber

[49] Dr. Bieber holds a Ph.D. in human genetics with a focus on population genetics. He completed a post-doctoral research fellowship in Medical Genetics at Harvard Medical School. Afterwards, he joined the faculty, where he has worked for the past 40 years. Dr. Bieber is also a Medical Geneticist in the Center for Advanced Molecular Diagnostics at Brigham and Women’s Hospital. Dr. Bieber has a major scholarly focus on DNA-based human identification; his research interests focus on statistical aspects of genetic identification, interpretation of forensic DNA mixture evidence, and genetic kinship analysis using data mining methods including familial searching and forensic genetic genealogy. He has worked in these areas for the past 40 years, and in forensic DNA analysis for the past 32 years. He is widely published in these areas.

[50] Dr. Bieber was a member of the first-ever National Commission on Forensic Science, having been appointed to the commission by then-U.S. Attorney General Eric Holder. He led the team that published the major paper to provide guidance to the forensic community on the interpretation of complex DNA mixtures. He is in his second term as a member of the U.S. Forensic Science Standards Board.

[51] Dr. Bieber’s report and oral evidence address the basics of DNA variation, including STRs and SNPs, the use of DNA typing in criminal investigations, the extent to which STR profiles reveal sensitive information about a person. He also offers a critique of Dr. Rosenberg’s research on the matching that can be made between STR and SNP profiles.

Conclusion – Expert Evidence Admissibility

[52] I am satisfied that the evidence of all three proposed experts is relevant and necessary in the context of the issues in this case. They are each eminently qualified to give the evidence they have offered. There are no exclusionary rules that apply to their evidence. Moreover, the benefits of admitting their evidence outweigh any risks associated with the admission of expert evidence.

[53] I qualify Dr. Waye to give evidence on forensic DNA typing. I qualify Dr. Rosenberg to give evidence on forensic DNA typing, and the potential to match STR profiles with SNP profiles and the implications of such matching. I qualify Dr. Bieber to give evidence on forensic DNA typing and the potential to match STR profiles with SNP profiles and the implications of such matching.

Issue One: Is a DNA profile a “result” within the meaning of s. 487.09(3) of the Criminal Code?

[54] The first issue is whether a DNA profile, such as an STR profile, is a “result” within the meaning of s. 487.09(3) of the Criminal Code. Here, the issue arises as a component of the plaintiff’s s. 8 Charter argument, not because the plaintiff advances a claim in breach of statutory duty.

[55] Sensibly, the parties agree that a DNA profile is a result within the meaning of s. 487.09(3) and the CFS generates results for purposes of s. 487.09(3). The parties disagree about whether the CFS complies with the requirements of s. 487.09(3); this in turn, has implications for the Charter arguments before the court.

Issue Two: Did the defendant’s seizure of bodily substances from the class members or retention of the results of the DNA tests and the associated records, breach the class members’ s. 8 rights? If so, were those breaches justified under s. 1 of the Charter?

[56] The plaintiff alleges that s. 8 was breached at two points in time:

a. At the time of the initial collection and forensic analysis: The class argues that their consent was not fully informed and is vitiated by the consent form that misrepresents what the defendant does with the DNA profiles; and

b. After the profile was produced and the sample excluded as a match to a crime scene: The class argues that they did not consent to the ongoing retention of the DNA profiles.

General Principles

[57] Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure.”

[58] The Supreme Court of Canada has emphasized the need to adopt a purposive approach to s. 8 that emphasizes the protection of privacy as a prerequisite to individual security, self-fulfillment and autonomy, as well as to the maintenance of a thriving democratic society: see R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para.15.

[59] An alleged breach of s. 8 is analyzed through a two-step process. First, the court asks if the state has engaged in a search, for constitutional purposes. A search falls within the meaning of s. 8 only where state examinations constitute an intrusion upon some reasonable privacy interest of an individual. It is thus necessary at this stage to ask whether the government’s actions engage an individual’s reasonable expectation of privacy: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18.

[60] If an individual has a reasonable expectation of privacy in the subject matter of the search, s. 8 is engaged. The court then proceeds to the second step: determining whether the search is reasonable: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 36.

Did the class members have a reasonable expectation of privacy in their DNA profiles?

[61] In R. v. Jarvis, the Supreme Court explained that privacy is not an “all-or-nothing” concept: the fact that a person does not expect complete privacy in the circumstances does not mean they waive all reasonable expectations of privacy: 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 61.

[62] The reasonable expectation of privacy analysis is both a fact-specific and normative exercise. It requires conducting a “contextual assessment that takes into account the totality of the circumstances”: Jarvis, at para. 60; R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45. “The normative inquiry is broader in nature, with an eye to protecting that for which we ought to expect protection from a privacy perspective in a free and democratic society”: R. v. El-Azrak, 2023 ONCA 440, 167 O.R. (3d) 241, at para. 31.

[63] To assess whether a claimant has a reasonable expectation of privacy in the subject matter of the search, the court considers:

(i) the subject matter of the search;

(ii) whether the claimant had a direct interest in the subject matter;

(iii) whether the claimant had a subjective expectation of privacy in the subject matter; and

(iv) whether this subjective expectation of privacy was objectively reasonable: Tessling, at para. 32, R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 78.

[64] Section 8 protects three broad categories of privacy interests: personal, territorial, and informational privacy: Tessling, at para. 20.

[65] The plaintiff here asserts a personal and informational privacy interest in both the physical DNA sample taken from class members’ bodies and the DNA profile resulting from the forensic analysis of those samples.

Subject Matter of the Search

[66] When characterizing the subject matter of the search, the “Court has looked at not only the nature of the precise information sought, but also at the nature of the information that it reveals”: R. v. Spencer, 2014 SCC 43, at para. 26.

[67] The plaintiff defines the subject matter of the search as the class members’ DNA profiles, including the information that can be gleaned from those profiles. The defendant argues that the subject matter of the search is narrower; it is the retention of anonymized, unused DNA profiles.

[68] In El-Azrak, at para. 40, the Court of Appeal cautioned that determining the subject matter of the search should not take on hypothetical dimensions, but it must remain rooted in reality. At para. 38, the court endorsed a functional and holistic approach that derives from the actual circumstances of the case. “Undoubtedly, this approach requires that we look beyond the actual information provided and ask whether, with that information in hand, something further is revealed about the individual to whom the information relates”: El-Azrak, at para. 38. This requires the court to consider the raw data that the state came to possess and “the nature of the information that could be inferentially derived from that raw data”: El-Azrak, at para. 38.

[69] The subject matter in this case is the claimants’ DNA profiles. The defendants propose what I find to be an artificial separation between the class members, their samples, and the resulting DNA profiles. This characterization is contrary to the functional and holistic approach set out in El-Razak. The class members and their samples are indivisible from the resulting DNA profiles. During the initial search and continued seizure, each class member’s DNA profile was the information that was sought and subsequently derived from the sample.

Direct Interest in the Subject Matter

[70] In R. v. Dosanjh, the Court stated that “whether an individual has a direct interest in the subject matter of a search is not defined by whether the subject matter is incriminating or not, but by the degree to which the individual has a meaningful connection to the subject matter – for example, through participation, authorship, ownership or control”: 2022 ONCA 689, 163 O.R. (3d) 401, at para. 117.

[71] It is plain that class members have a direct interest in the subject matter of the search; it is their DNA profile. Further, I agree that the nature of their privacy interest is both personal and informational.

Personal Privacy Interests

[72] Supreme Court of Canada jurisprudence has repeatedly acknowledged the potentially significant intrusion that the taking of bodily samples may have on an individual’s personal privacy interests.

[73] Privacy of the person has “the strongest claim to constitutional shelter” because it protects bodily integrity: Tessling, at para. 21. Case law has recognized that taking bodily samples “can involve significant intrusions on an individual’s privacy and human dignity”: R. v. S.A.B., 2003 SCC 60, [2003] 2 S.C.R. 678, at paras. 40, 44.

[74] In R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, a case that dealt with the DNA data bank provisions, the Supreme Court of Canada held, at para. 25, that “there is no question that the taking of bodily samples for DNA analysis without the person’s consent constitutes a seizure within the meaning of s. 8 of the Charter.” This is so notwithstanding the Supreme Court’s finding that a buccal swab “is quick and not terribly intrusive”: S.A.B., at para. 44.

[75] The collection and retention of DNA profiles at issue in this case raises similar personal privacy interests. There is no collection and retention of DNA profiles without an initial intrusion into bodily integrity.

Informational Privacy Interests

[76] In Rodgers, at para. 39, the Supreme Court of Canada recognized that DNA sampling engages the privacy interests of an individual in two ways. First, as I have already noted, it interferes with the bodily integrity of the person. Second, “it engages the informational component of privacy”: Rodgers, at para. 39. At para. 40, the Court described the informational privacy aspect of DNA sampling as “far more significant.” Relying on S.A.B., it held that there is “undoubtedly the highest level of personal and private information contained in an individual’s DNA”: Rodgers, at para. 40; S.A.B., at para. 48. Moreover, “DNA can reveal personal information that goes far beyond the identity of the person”: Rodgers, at para. 40.

[77] In Tessling, at para. 23, the Supreme Court of Canada found that informational privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others. The protection of informational privacy is based on the assumption that all information about a person is in a fundamental way his or her own, to communicate or retain as he or she sees fit: see also Spencer, at para. 40.

[78] The defendant argues that it only retains anonymized DNA STR profiles which do not reveal private information that can be linked to anyone, and as such, retaining them does not intrude upon any reasonable expectation of privacy. This position equates informational privacy with anonymity. While anonymity can be an integral part of ensuring privacy, it does not eliminate the claimants’ expectations of privacy in this case.

[79] Here, informational privacy must be understood in the context of control. The court in Spencer explained that “[e]ven though the information will be communicated and cannot be thought of as secret or confidential, ‘situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected’”: at para. 40, citing R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at p. 46.

[80] I find that, in this case, the class members consented to the taking of their bodily samples for a specific purpose (that is, to be used in a specific criminal investigation), and subject to specific terms about the use of the results (if their sample was not a match for the sample against which it was tested, the electronic data related to their sample would be permanently removed). The specific purpose and conditional nature of the class members’ consent demonstrates a level of ongoing control and illustrates that they did not relinquish their reasonable expectation of privacy.

[81] The reasonable expectation of privacy analysis is also shaped by factors such as the nature and quality of the information at issue: Jarvis, at para. 66. Here, the parties disagree about the nature of the information and inferences that can be gleaned from STR DNA profiles. This disagreement is the focus of the expert evidence called at trial, which I now turn to review.

[82] The experts who gave evidence in this trial did not disagree with one another. Their evidence was largely consistent. I summarize the key elements of the evidence:

a. A DNA profile cannot be changed. It is highly unlikely that two unrelated individuals would have identical forensic STR profiles unless they were monozygotic (identical) twins.

b. An STR DNA profile provides, with few exceptions, a reliable indicator of biological sex.

c. Broad categories of ethnicity can be assessed, but not established, from STR profiles. Such assessments can result in false inferences of ethnicity.

d. STR profiles can be used to assess the degree of biological relatedness between individuals. The degree of certainty in assessing biological relatedness is strongest for first degree relatives, such as full siblings or parent-child; the degree of certainty decreases for relatives who share smaller proportions of their DNA. Inferences of biological relatedness can often be reached for second-degree relatives, like half-siblings, or uncle-nephew, and for third-degree relatives, like cousins. It grows more difficult as the relationship grows more distant. To make an assessment of biological relatedness, an STR profile of one individual must be compared against an STR profile of another individual. There is no evidence that the defendant compares STR profiles of reference samples against any sample other than the sample of unknown origin in connection with which the reference sample is collected.

e. Evidence was led about a case with which an expert had familiarity (unrelated to the class), in which, by comparing STR profiles, investigators were able to determine that an individual who was thought to be the sibling of another was identified as the offspring of that person, and to have been conceived through incest.

f. In contrast to STR profiles, SNP profiles provide information about statistical and causal connections to various diseases. SNP testing can allow an investigator to make inferences or predictions with respect to information such as physical traits, like hair or eye colour. SNPs are also used in population genetics research on relationships among different human populations.

g. The evidence indicates that the defendant offers a biogeographic ancestry testing service using SNPs, but it does not “currently” apply SNP testing to DNA reference samples provided on consent.

h. Although SNP and STR profiles do not possess the same variables, scientific techniques currently in development can enable an STR profile to be matched with a SNP profile, within a certain degree of probability. Dr. Rosenberg is actively engaged in this research. Using Dr. Rosenberg’s techniques, it may be possible to match an STR profile to a person’s SNP profile, or to the SNP profile of the STR profile donor’s parent, offspring, or sibling.

i. There is potential for Dr. Rosenberg’s research to be used by law enforcement. As he describes:

In an investigative setting, the genetic record-matching technique generates new ways for a law enforcement investigator to identify a genetic sample. In one scenario, suppose that an investigator possesses an STR profile from an unknown person, and that no matches have been found for that profile in a government database of STR profiles. The investigator could in principle access one or more databases of SNP profiles and perform record-matching of the STR profile against SNP profiles in the SNP profile database. A SNP database used in this type of search could be (i) a public database of deidentified SNP profiles, such as those assembled by biomedical researchers, (ii) a private database of SNP profiles, such as those held by private genealogical testing or biomedical companies, or (iii) a database of SNP profiles that is assembled by law enforcement itself.

j. At this point in time, there is no real-world use of STR profiles to match SNP profiles. The work being done on this front is research-based in academic settings. Dr. Rosenberg’s technique is currently limited by factors such as:

i. Dr. Rosenberg’s testing was conducted on relatively small training sets where there were known matches between STR and SNP profiles. In a real-world setting, where the matches are not known and the population being tested is large, the reliability of Dr. Rosenberg’s matches would decrease.

ii. SNP profiles can be erroneously genotyped, and the genotyping error rate in the SNP genotypes could affect the error rate of the genetic record-matching technique.

k. Since Dr. Rosenberg began his research, the accuracy of his technique matching STR profiles to SNP profiles has increased.

[83] From this evidence, I conclude that an STR profile, when compared with another, has the potential to reveal one's identity and familial relationships, including incestuous ones. An STR profile, when compared with a SNP profile, has the potential to reveal matches that would reveal information including statistical and causal connections to various diseases, and physical traits.

[84] In R.v. Jarvis, the court explained that “the privacy jurisprudence recognizes the potential threat to privacy occasioned by new and evolving technologies more generally and the need to consider the capabilities of a technology in assessing whether reasonable expectations of privacy were breached by its use”: 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 63. The STR-SNP comparison is currently only used in academic contexts, but the technique exists. The technique is not merely hypothetical, but it also is not sufficiently developed to have a practical application.

[85] Thus, the STR DNA profile in the hands of the defendant can reveal private information, including familial relationships and incestuous relationships. STR DNA profiles are also the subject of ongoing scientific research that seeks to elicit more information from STR DNA profiles, including statistical and causal connections to various diseases and physical traits, through matching with SNP profiles of the donor or biological relatives.

[86] Class members have a significant privacy interest in controlling the deeply personal information that can be ascertained from STR DNA profiles. And there is a realistic potential that more private information will be discernible from the STR DNA profiles in the future.

[87] I thus conclude that the nature of the class members’ privacy interest in the subject matter of the search engages significant privacy interests.

Subjective Expectation of Privacy

[88] In R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at paras. 20-21, the Supreme Court of Canada discussed what is required for a claimant to have a subjective expectation of privacy in the subject matter of the search:

To begin, the subjective expectation requirement has never been “a high hurdle” (R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 37). And for good reason. Overemphasizing the presence or absence of a subjective expectation of privacy cannot be reconciled with the normative nature of the s. 8 inquiry.

... A subjective expectation of privacy can be presumed or inferred in the circumstances in the absence of the claimant’s testimony or admission at the voir dire (see Patrick, at para. 37; Tessling, at para. 38; Cole, at para. 43). The modest evidentiary foundation necessary to establish one’s subjective expectation of privacy therefore reflects the notion that s. 8’s normative import transcends an individual claimant’s subjective expectations.

[89] In Tessling, at para. 42, the Supreme Court cautioned against using the absence of a subjective expectation of privacy too quickly to undermine the protection afforded by s. 8 to the values of a free and democratic society. It noted that “suggestions that a diminished subjective expectation of privacy should automatically result in a lowering of constitutional protection should therefore be opposed. … Expectation of privacy is a normative rather than a descriptive standard.” [Emphasis in original]

[90] The defendant argues that there is no subjective expectation of privacy in the DNA profiles because they are hard to access and only reveal certain information that is personal but not private. I disagree.

[91] I have already reviewed the nature of the privacy interests engaged by the class members’ DNA profiles. They can reveal highly private and personal information, the breadth of which is likely to expand with ongoing scientific developments.

[92] Moreover, in my view, the defendant’s argument is inconsistent with the normative nature of the s. 8 inquiry.

[93] As noted above, the claimants provided a sample for a specific purpose and subject to restrictions surrounding its use and retention. Their subjective expectation of privacy can be inferred from the fact that the sharing of the information was subject to these terms.

Is the subjective expectation of privacy objectively reasonable?

[94] In my view, the class members’ subjective expectation of privacy in their STR DNA profile is objectively reasonable in the totality of the circumstances. Even if I accepted the defendant’s characterization of the subject matter of the search as anonymized DNA profiles, I would find that this reduces, but does not negate, the class members’ expectation of privacy. DNA has the potential to reveal much about its donor based on current science. Even STR profiles, which provide more limited information than SNP profiles, can reveal highly private information, like biological familial relationships, including incestuous ones.

[95] The fact that ongoing research seeks to expand what we can learn from DNA, including STR profiles, also demonstrates that subjective privacy concerns about retention of DNA profiles, and what may be done with them in the future, are objectively reasonable.

[96] The privacy concerns regarding DNA profiles are reflected in s. 487.09(3) of the Criminal Code and in the standard consent form signed by class members. It is objectively reasonable to assume that the police forces which take the bodily sample, and the government institutions that develop DNA profiles, will abide by the Criminal Code provision and the terms of the consent form: see Spencer, at para. 54, where the court noted that contractual and statutory frameworks may be relevant to an individual’s reasonable expectation of privacy.

[97] I find that the claimants have a reasonable expectation of privacy in their DNA profiles.

[98] The parties in this case argue about the validity of the consent signed by the class members. They raise the validity of the consent in the context of the second branch of the test, that is, whether the search was reasonable.

[99] In my view, the validity of the consent is more appropriately considered at this juncture in the analysis. Valid consent does not render a search reasonable; instead, consent acts as a waiver of a claimant’s reasonable expectation of privacy, such that there would be no seizure if there is a valid consent: R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, R. v. Paul, 2004 CanLII 28946 (ON SC); R. v. Angou, 2021 ONSC 7446; R. v. Wills, 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337.

[100] Before assessing the validity of the consent in this case, I first determine whose burden it is to prove whether or not the consent is valid.

Burden of Proof

[101] In considering the validity of the consent given to take DNA samples and develop and retain DNA profiles, the first issue that arises is who bears the burden of proof. The plaintiff argues that the defendant must prove that the DNA collection and retention of profiles was consensual. The defendant argues that he who asserts must prove, so the plaintiff bears the onus of proving that the consent was not informed and is thus ineffective.

[102] A warrantless search is presumptively unreasonable under s. 8 of the Charter. In criminal proceedings, where an applicant establishes standing and a warrantless search or seizure, the presumption of unreasonableness arises and the Crown must rebut it: Spencer, at para. 68; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 55.

[103] Is the burden different in civil proceedings? In Young v. Ewatski, 2012 MBCA 64, 351 D.L.R. (4th) 81, the Manitoba Court of Appeal considered a civil claim for damages in which a plaintiff alleged that the defendant police service members breached her s. 8 Charter rights by conducting a warrantless and unreasonable search of her home. The defendants argued that the search was not unreasonable, because the plaintiff’s adult daughter had consented to the search.

[104] The Manitoba Court of Appeal observed, at para. 50, that the case raised the issue of which party had the burden of proving consent. It noted that consent in the context of an alleged Charter breach “almost always arises in the context of criminal cases.” It then went on to consider how the burden of proof ought to be applied when the question of a s. 8 breach arises in a civil case.

[105] The court noted that the purpose of s. 8 is to protect individuals from unjustified state intrusions upon their privacy; it seeks to prevent unjustified searches before they happen by employing a system of prior authorization, not subsequent validation: Young, at para. 51.

[106] Therefore, “it would be unwieldy to require that a plaintiff negative every possible justification, not to mention the difficulty of proving a negative, that is, that each justification did not apply”: Young, at para. 55. The court went on, at para. 56, to find that:

…if the burden of proof remains with the plaintiff throughout, those acting on behalf of the state would not be required to justify their intrusions upon that plaintiff’s privacy. This would not accord with the purpose of s. 8, being to require the state to demonstrate the superiority of its interest to that of the individual.

[107] The Manitoba Court of Appeal thus concluded that once the plaintiff has proven that there was a warrantless search, the burden of proof shifts to the defendant as part of its defence to a civil claim alleging a breach of the plaintiff’s Charter rights.[^2]

[108] For its part, the defendant relies on Halton (Regional Municipality) v. Canadian National Railway Company, 2024 ONCA 174. In this case, the defendant railway was in the process of constructing an “intermodal hub” in the town of Milton, Ontario. This project was affecting local residents adversely, and concerns were raised about the disruptive nature of the project, its demands on local infrastructure, and its environmental impact. The railway denied that it required approval of local authorities on the basis that it was a federal undertaking.

[109] The Municipality of Halton brought an application for declarations and injunctions to the effect that the defendant railway company was obligated to seek and obtain requisite approvals under provincial laws, regulations and municipal by-laws. The question as to who bore the burden of proof arose.

[110] Before the Court of Appeal, the appellant municipality argued that the onus of proof belonged with the railway, because ordinarily applications for declarations relating to interjurisdictional immunity or paramountcy are launched by a proponent of a federal undertaking, as the party challenging the constitutional validity of an impugned law. The railway, however, left the municipality no choice but to initiate the application on issues that, according to the municipality, the railway bore the burden of proving.

[111] The Court of Appeal concluded that the municipality’s reasoning was “misconceived,” finding that it was “trite law that the party seeking declaratory relief bears the burden of establishing that prerequisites to such relief are satisfied.” Because the municipality sought the declaration, it fell to it to discharge the burden of establishing the factual record supporting its claim that the declarations it sought should be made: Halton, at paras. 103-104.

[112] I see no inconsistency between the decisions in Halton and in Young. The plaintiff bears the burden of establishing his claim. He must prove a reasonable expectation of privacy. In the case of a warrantless search, once he has done so, for the reasons described in Young, the onus shifts to the defendant to prove the consent was valid. I turn next to consider whether the defendant has discharged its onus.

[113] For a consent to a seizure of bodily materials to be valid, it must have six characteristics, described by the Ontario Court of Appeal in Wills:

a. There was a consent, express or implied;

b. The giver of the consent had the authority to give the consent in question;

c. The consent was voluntary in the sense that it was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;

d. The giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;

e. The giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and

f. The giver of the consent was aware of the potential consequences of giving the consent.

[114] The last of these conditions requires that the giver of the consent have a general understanding of the jeopardy in which he found himself, and an appreciation of the consequence of deciding for or against giving the consent. “The person whose consent is sought must understand that if the consent is given the police may use any material retrieved by them in a subsequent prosecution”: Wills.

[115] In R v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, the Supreme Court of Canada held, at p. 162, that the waiver of the right to be secure against an unreasonable seizure can only be effective when “the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful.”

[116] In this case, the fourth and sixth elements of valid consent are at issue. The plaintiff argues that the consent has been vitiated by the fact that it does not disclose that the defendant retains DNA profiles.

[117] In arguing that the consent is valid, the defendant focuses principally on the sixth element. It argues that there is no evidence to suggest that the class members did not understand the kind of jeopardy they were in when they gave the samples to the police. It argues that its retention of anonymized DNA profiles is not material to the provision of consent. It cites cases like R. v. Karas, 1007 ABCA 362, R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, R. v. Yu, 2019 ONCA 942 and R. v. Belbin, 2015 ONSC 5346 to argue that consent, once validly given, does not constrain the use that may be made of the sample or the results of its analysis, and that consents obtained after police lied or failed to disclose facts to the donor remain valid as long as the individuals giving the consents understood the legal jeopardy they were facing.

[118] The defendant’s argument is persuasive, as far as it goes. It speaks to the question of what the giver of consent needs to know about the consequences of the consent to validly give consent, that is, the sixth element. But it does not speak to the fourth element of a valid consent, that is, that the giver of consent was aware of the nature of the police conduct to which he or she was being asked to consent.

[119] The consent describes the conduct to which the class members consented. It explains that it will allow authorities to take a biological sample from them, to conduct such analysis as deemed appropriate by the authorities, including DNA testing. There is no question that the consent is accurate in this respect.

[120] But then it states “[t]he Criminal Code says that samples of bodily substances voluntarily given shall be destroyed and electronic data related to those samples will be permanently removed once it is determined that the bodily substance does not match to the crime under investigation.”

[121] The clear inference from this paragraph is that once it is determined that the reference sample is not a match, the defendant and the police will do what the Criminal Code says that they shall do: (i) destroy the samples of bodily substances (which they do); and (ii) permanently remove the electronic data related to those samples.

[122] In my view, the consent is limited to the conduct described therein. That conduct includes that authorities will permanently remove the electronic data related to the donor’s sample if it is not a match for the sample against which it is tested.

[123] If the electronic data related to the samples is not permanently removed once the sample is determined not to be a match, the consent has misinformed the class members about the nature of the conduct of the authorities at issue.

[124] Given the current and expanding amount of information DNA profiles offer, what happens to the DNA profile after it is excluded as a match is a material part of the conduct that the donor is consenting to.

[125] It follows that the consent to take the bodily sample is only valid if the consent accurately indicates that electronic data related to the donor’s sample will be permanently removed once the sample is excluded as a match. If, at the time consent is obtained, the defendant did not actually intend to take action that would permanently remove the electronic data if the sample is excluded, the consent to take the bodily sample is invalid from the outset, because the form misrepresents a material aspect of the conduct of the authorities.

[126] I turn next to consider whether the defendant in fact permanently removed the electronic data related to the class members’ samples after they were excluded as a match.

Was the electronic data relating to the DNA samples permanently removed?

[127] The defendant submits that the consent is not vitiated because it complied with the terms of the consent by anonymizing the profiles of the class members. This argument rests upon the premise that by de-linking the identity of the donor from the DNA profile, it has complied with its obligation to permanently remove the results of the DNA testing.

[128] The consent form does not use the word “anonymized.” It tells potential signatories that one thing will happen to their electronic DNA profiles: permanent removal.

[129] In my view, anonymization is not equivalent to permanent removal or destruction. The following review of the defendant’s anonymization processes illustrates this point. Although doing so would be unethical and difficult, it is possible to re-link the DNA profiles.

[130] There is a great deal of evidence in the record about the defendant’s processes, and how they have changed over time. I describe some of it earlier in these reasons. I do not describe it all in these reasons; further detail can be found in the affidavits of Mr. Laird, the defendant’s representative. The core dispute between the parties is not what the defendant does, but whether its practice is sufficient.

[131] In evaluating the claim that the profiles are anonymized, or de-linked, from the identity of the donor, the following facts are noteworthy:

a. The defendant has taken steps to discourage police forces from including names of donors when they submit DNA samples for analysis, and it redacts names when they are submitted.

b. Electronic case records are maintained in the LIMS tracking system with access restricted to authorized CFS staff only.

c. Physical case files with hard copies of DNA profiles are kept in the CFS offices where access is restricted to authorized CFS personnel. After five years, they are sent to long term storage at a “secure government records facility,” where they are kept for 50 years and access is restricted to authorized personnel, all of whom are CFS employees.

d. Between 2000-2008, when a sample was excluded and the CFS obtained confirmation that it was a consent sample, it would redact its records to remove any information indicating the identity of the person who provided the sample.

e. Changes implemented in 2008 made the protocol that had been in place since 2000 unworkable. For four years, the CFS did nothing to remove identifying information about donors who provided consent samples that were excluded, or to destroy the physical samples, “while the CFS developed new protocols.” The fact that it took four years to develop a new protocol reflects, in my view, a lack of urgency and speaks to how the CFS treated the privacy interests of consent donors during this time.

f. In 2012, a retroactive process was developed and implemented for the four previous years. The CFS reached out to the police “for authorization to confirm the status of a sample” and, presumably if it received the authorization it sought, it destroyed DNA extracts from excluded donors and redacted its records to break links between the DNA profile and the donor’s identity.

g. Between 2012 and April 2022, the CFS implemented changes to the process of submitting DNA samples designed to reduce the number of locations in CFS’s records where a donor’s name could be linked to a DNA sample or profile. The CFS also began explicitly advising police not to include the name of the reference sample donor with the sample submitted for testing, but to use a reference sample code instead. Each item also typically had a “police item number” or a “seal number’ identifying the item.

h. At the same time, the CFS stopped including the name of the sample donor when reporting excluded samples to police services. The reports included only the LIMS number, the police item number and/or seal number, and the reference sample code.

i. As a result of these changes, there were two locations in the CFS’s files where a donor’s name could be linked to a DNA sample or DNA profile.

i. First, the packaging containing the physical sample usually included a donor’s name on the package. The CFS returned the packaging to the police; it did not provide police with the DNA profile. Thus, according to the CFS, “neither the police nor the CFS can connect the name on the packaging to the resulting DNA profile”.

ii. Second, a donor’s name could appear on a document called an “Examination Sheet,” prepared by a forensic technologist for each case in a batch. Where a donor is excluded, a printed examination sheet with donor names redacted is retained in the physical file, and the electronic copy is deleted following printing.

iii. In the period from March 2016 to January 2019, electronic copies of some examination sheets were not deleted from cached data. On discovering this, the CFS sequestered the electronic copies of examination sheets that were incorrectly retained onto an in-house drive accessible to the CFS management only.

j. The access to information in the CFS’s records remains the same before and after a donor sample is excluded. In other words, exclusion of a sample does not result in any limitation of access to the excluded DNA profile in the CFS’s system.

k. The de-linking process the CFS has employed means that no one at the CFS can identify whose DNA profile they can access. And no one at the submitting police service can identify the DNA profile of an excluded donor. But together, the records held at the CFS and the submitting police service can link a DNA profile to an excluded donor. To make such a link, CFS employees and police employees would have to act in breach of their legal and ethical obligations. There is no evidence this has ever occurred.

[132] As of April 1, 2022, the CFS has adopted a new process. It now destroys and deletes all copies of all DNA profiles, from consent and warrant donors, whether or not they are excluded as a match to the unknown sample. The only profiles it retains are hard copies of non-excluded profiles.

[133] From this review, I conclude that the CFS made efforts to anonymize the DNA profiles in its possession and did so based on the belief that this would suffice to meet its obligation to permanently remove the results of the DNA analysis. I accept that it is possible to relink the DNA profiles the CFS retained with the identity of the consent donor; doing so would require at least one CFS employee and one police services employee to act improperly and outside the scope of their duties. I acknowledge that there is no evidence this has ever occurred. The defendant has made it very difficult and unlikely that a donor’s identity can or will be relinked to the DNA profile, but it is not impossible to do so, and the necessary information resides with state entities. Thus, the DNA profile cannot truly be described as anonymized.

[134] I note also that anonymizing the DNA profiles, to whatever extent they were anonymized, is not the same thing as permanently removing access to the profiles. Until April 1, 2022, the defendant did not take all possible steps to permanently remove the DNA results of excluded donors in its possession, and since then, has only done so prospectively.

[135] The consents given up to April 1, 2022 are thus invalid, both at the time the bodily samples were taken, and during the time period when the DNA profiles continued to be retained after they were excluded as a match. The class members were misinformed about a material aspect of the authorities’ conduct: the results of the class members’ DNA testing were not permanently removed, but only mostly anonymized. The defendants did not comply with s. 487.09(3) of the Code or the terms of the consent.

[136] I thus find that the class members’ have established a reasonable expectation of privacy in the subject matter of the search, and that expectation is not vitiated or waived by reason of the consent. I thus turn to the second branch of the test: whether the search and continued seizure are reasonable.

Reasonableness of the Search and Continued Seizure

[137] For a search to be reasonable: (i) it must be authorized by law; (ii) the law itself must be reasonable; and (iii) the manner in which the search was carried out must be reasonable: Rodgers, at para. 25.

[138] In this case the search and seizures were performed without a warrant, and it was not argued that they were authorized by law. The parties argued that the reasonableness of the seizure, search, and continued retention of the DNA profiles depends on the validity of the consent given by the donors.

[139] As the Court of Appeal held in Wills, in the absence of valid consent, taking and testing the class members’ DNA constitutes a search and seizure. Where the defendant relies exclusively on consent to justify a seizure and the consent is found to be invalid, “the reasonableness of the seizure must be addressed from the premise that the seizure was not authorized by law”: Wills.

First Alleged Breach During Seizure of Sample and Search for Purposes of Exclusion

[140] The defendant does not seek to rely upon s. 487.09(3) to establish that the search was authorized by law, nor is there a warrant. Both parties agree that the lawfulness of the initial seizure and subsequent search for the purpose of excluding the donor, turns solely upon whether informed consent was given.

[141] Because I concluded the requisite consent was not obtained and the class members have an expectation of privacy, there was an unlawful seizure of the sample and search of the DNA profile. This conduct was unreasonable because it was not authorized by a warrant or law. It thus constitutes a breach of s. 8 of the Charter.

Second Alleged Breach Due to Continued Seizure of the DNA Profile

[142] I have already determined that the defendant did not comply with the terms of the consent; namely, that it was required to permanently remove the class members’ electronic DNA profiles once they were excluded as a match. The class members did not provide informed consent to the CFS to retain their electronic DNA profiles. In the circumstances of this case, they had a reasonable expectation of privacy in their DNA profiles and thus the retention was a continued seizure. This seizure was not authorized by law or permitted by a warrant and is therefore contrary to s. 8.

[143] Neither the initial seizure and search nor the continued seizure were reasonable. Both Charter breaches are therefore established.

Is the breach of s. 8 justified under s. 1 of the Charter?

[144] Because this question is identified as a common issue to be determined at trial, I address it briefly.

[145] Because no one challenged the reasonableness of any statutory provision, there is no limit “prescribed by law” to evaluate in this case. The s. 1 analysis has no application.

[146] In any event, the analysis of s. 8 already includes a reasonableness component; therefore, it is only in exceptional cases that a breach of s. 8 can be saved under s. 1: R. v. Fink, 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 46. I have already described why the defendant’s conduct was not reasonable.

Issue Three: What limitation period applies to the causes of action advanced in this case?

[147] The defendant made no oral submissions on the limitation period argument and relied solely on its written argument. In its factum, the defendant argues that the basic limitation period of two years set out in the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B (the “Limitations Act”) is applicable to the claims of all class members. The claim was commenced on September 14, 2018. The defendant submits that all claims prior to September 14, 2016, including that of the representative plaintiff, are prima facie barred. This position applies to both the Charter claim and the claim of intrusion upon seclusion.

[148] I am asked to determine what limitation period applies to the claims advanced in this action.

[149] The plaintiff argues that there is no limitation period issue because the claim addresses ongoing wrongs that continued after the date the action was commenced. In response, the defendant submits that “this case does not involve the type of conduct that constitutes a continuing cause of action within the meaning of the [Limitations Act]”.

[150] The defendant cites Tyszko v. St. Catharines (City) for the proposition that a continuing cause of action is one in which the alleged wrongful act or omission is repeated, not where the alleged wrong occurred once and has continuing effects or consequences: 2023 ONSC 2892, at paras. 43, 46.

[151] The defendant’s argument is initially attractive, but it ignores the fact that this was not a one-time error. Rather, the defendant adopted and employed a process for managing records for years that did not result in the permanent deletion of electronic records related to class members’ DNA profiles. This practice directly contradicted the one thing class members were told about how their records would be treated.

[152] Moreover, the facts here suggest not so much a single negligent act (or omission), as was at issue in Tyszko, but the continual repetition of an unconstitutional process and an ongoing failure to permanently delete the records. I am satisfied that there was an ongoing wrong.

[153] If I am wrong that the wrongdoing was ongoing, I would still conclude that the limitation period has not expired. I accept the plaintiff’s argument that class members were unable to discover their claim.

[154] The evidence indicates that, at least as of 2005, class members were told in the consent form they signed that forensic results related to their DNA produced in electronic format would be permanently removed. There is no evidence that the class members (including those whose samples were taken before the consent form came into use) had any way of knowing that the electronic results related to their DNA profiles had not been permanently removed. Nor is there any reason to suppose they could have had access to that information.

[155] The parties have also raised the ultimate limitation period in s. 15(1), prescribed at 15 years by s. 15(2). This action was commenced on September 14, 2018, but the class period commences in 2000. Therefore, some class members may be affected by the ultimate limitation period.

[156] Under s. 15(4), the ultimate limitation period does not run during any time in which the defendant willfully concealed from the class the fact that the injury, loss or damage has occurred, or that it was caused or contributed to by the defendant’s act or omission.

[157] The defendant argues that the plaintiff has failed to prove facts amounting to wilful concealment under s 15(4) of the Limitations Act, 2002, but has offered no law interpreting that section.

[158] The plaintiff argues that the effect of the consent form was to wilfully conceal that the electronic results would not be permanently removed. The consent form told the class members who signed it that something different would be done with the electronic DNA profiles obtained from their samples than what actually occurred.

[159] The problem with this argument is that the evidence indicates that the consent forms came into use in 2005. Anyone who signed a consent form in 2005 or after is not affected by the ultimate limitation period anyway.

[160] There is no evidence in the record about the information given to class members who consented to providing reference samples before 2005.

[161] I thus have no evidentiary basis to draw conclusions about the application of the ultimate limitation period to the class members who might be affected by it. The defendant is the party most likely to be able to offer evidence about what information its standard operating protocol provided donors before 2005, or if a standard protocol existed at that time. It has offered no evidence on the subject. Nor has the plaintiff delivered evidence regarding this information from a class member who gave a sample on consent prior to 2005, before the consent form was developed.

[162] I note that the Criminal Code provision at issue was enacted in 1995 and would have applied to police services and the defendant throughout the class period. It is therefore likely that consent donors who gave reference samples prior to the creation of the consent form were told that their DNA profiles would be treated as required by the Criminal Code.

[163] No one argued that consent donors who provided reference samples before the introduction of the consent form should be treated differently from signatories of the form. As a result, I conclude that the parties agree that my findings are equally applicable to those who provided consent samples prior to 2005, notwithstanding that no consent form was signed.

[164] If I am incorrect and there is no such agreement, the parties may contact me to determine next steps to address it.

Issue Four: Does the defendant’s conduct amount to the tort of intrusion upon seclusion?

[165] The elements of intrusion upon seclusion were set out by the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, at paras. 70-71, and described again more recently in Owsianik v. Equifax Canada Co., 2022 ONCA 813, 164 O.R. (3d) 497, at para. 54, as:

a. The defendant must have invaded, or intruded upon the plaintiff’s private affairs or concerns, without lawful excuse [the conduct requirement];

b. The conduct which constitutes the intrusion or invasion must have been done intentionally or recklessly [the state of mind requirement]; and

c. A reasonable person would regard the invasion of privacy as highly offensive, causing distress, humiliation, or anguish [the consequence requirement].

[166] In Jones, the Court of Appeal discussed the limits of the tort:

These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one's financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

[167] Subsequent decisions addressing the tort reveal that courts have been careful not to expand the reach of the tort: see, for example, Winder v. Marriott International, Inc., 2022 ONSC 390, at paras. 13-14, where Perell J. noted the narrow ambit for the tort of intrusion on seclusion; see also Stewart v. Demme, 2022 ONSC 1790 (Div. Ct.), 81 C.C.L.T. (4th) 64.

[168] In my view, the tort of intrusion upon seclusion is not available in this case. I do not accept the plaintiff’s argument that the defendant has acted intentionally or recklessly.

[169] In Equifax, at para. 59, the Court of Appeal discussed the prohibited state of mind, and found that it must relate to the doing of the prohibited conduct:

The defendant must either intend that the conduct which constitutes the intrusion will intrude upon the plaintiffs’ privacy, or the defendant must be reckless that the conduct will have that effect.

[170] In this case, the evidence reveals that the defendant developed a process to manage the DNA results that was intended to comply with s. 487.09(3) of the Criminal Code. Before this court, the defendant continued to insist that it had complied with the requirements of the provision.

[171] The process employed by the defendant to determine how to comply with the provision included consultation with others in the forensic DNA community. The defendant has made changes to its process over time, as technology changed, and perhaps also in response to this litigation.

[172] In my view, the defendant made good faith efforts to comply with the statutory requirements, in the context of the changing technological environment. It also faced pressures such as technological limitations and the growing demand for forensic DNA analysis. I have found that the process that it adopted was not satisfactory, but adopting an unsatisfactory process in a good faith effort to comply with the law does not amount to conduct that intentionally intruded or invaded upon the class members’ affairs.

[173] Nor can I describe the defendant’s actions as reckless. Recklessness “refers to the realization at the time the prohibited conduct is being done that there is a risk that the conduct will intrude upon the privacy of the plaintiffs, coupled with a determination to nonetheless proceed with that conduct”: Equifax, at para. 60. Here, the defendant’s conduct was undertaken to try not to intrude upon the privacy of the class members. It fell short and the defendant was wrong about the adequacy of the process it adopted, but it was not reckless.

[174] I dismiss the plaintiff’s claim for intrusion upon seclusion.

Issues Five and Six: Are aggregate damages available to the class under s. 24 of the Charter?

[175] The plaintiff seeks aggregate Charter damages in the amount of $5,000 per class member. The defendant argues that if damages are awarded, they should be no more than $250 per class member.

[176] Damages under s. 24(1) of the Charter were considered by the Supreme Court of Canada in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28. Ward holds that a functional approach to Charter damages is necessary and finds that they are appropriate and just to the extent they serve a useful function or purpose. The purposes that an award of damages under s. 24(1) may serve are identified in Ward, at para. 25, as: (i) compensation; (ii) vindication; and (iii) deterrence.

[177] Compensation is normally the most prominent of the three functions that Charter damages may serve; it focuses on the claimant’s personal, physical, psychological, and pecuniary loss. Vindication focuses on the harm the infringement causes society. Deterrence seeks to regulate government behaviour, by influencing it to secure state compliance with the Charter in the future: Ward, at paras. 27-29.

[178] However, in many cases a breach of Charter rights can be sufficiently addressed through a declaration: Ward, at para. 37:

The court’s finding of a breach of rights and a declaration to that effect will often not only be appropriate relief but may also in itself be a sufficient remedy in the circumstances to vindicate a plaintiff’s right. That will often be the case where no damage has been suffered that would give rise to a claim under private causes of action and, in the circumstances, if there is no need to deter persons in the position of the public officials from behaving in a similar way in the future. If in all the circumstances the court’s pronouncement that there has been a breach of rights is a sufficiently appropriate remedy to vindicate the right and afford redress then, subject to any questions of costs, that will be sufficient to meet the primary remedial objective.

[179] The Supreme Court of Canada articulated a four-part test in Ward for when Charter damages may be available, at para. 4:

The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages.

[180] The first step in the inquiry has already been established; I have found two breaches of s. 8 of the Charter.

[181] The next question is whether damages are a just and appropriate remedy, having regard to the function they would fulfil. The plaintiff argues that Charter damages will compensate, vindicate and deter in this case. The defendant disputes that damages are necessary to achieve any legitimate function.

[182] Taking compensation first, the plaintiff argues that compensation extends to intangible losses, citing Kent Roach, “A Promising Late Spring for Charter Damages: Ward v. Vancouver” (2011) 29 Nat’l J. Const. Law 135 at pp. 145-155. The plaintiff argues that the intrusion into class members’ bodily autonomy and informational privacy was serious and harmed class members’ intangible interests. He relies on the evidence of Dr. Waye and Dr. Rosenberg that significant and sensitive information can be gleaned from STR profiles, including ethnicity and sensitive familial relationships. He describes the privacy invasion as significant.

[183] I do not accept this argument.[^3] There is no evidence in the record of compensable loss. There is no evidence that the STR profiles of the class members were accessed after they were excluded as a match, let alone misused. There is no evidence that any concern the class members had about the retention of their STR profiles caused any compensable damage.

[184] The plaintiff also argues that vindication and deterrence are required in this case to reflect the fact that the defendant broke its bargain with the class to permanently remove the results of the analysis of their DNA, contrary to the Criminal Code. He submits that this breach undermines the administration of justice at large and the public’s ability to trust police, and therefore the public’s inclination to voluntarily assist police.

[185] In support of this argument, the plaintiff notes that, in 2016, the Office of the Independent Police Review Director (“OIPRD”) released a report entitled “Casting the Net.” This report reviewed the DNA canvas that involved participants such as Mr. Granger and concluded that the canvas was overbroad because it targeted all migrant workers of colour in the area, including those who did not match the physical characteristics of the perpetrator. Relevant recommendations made in the report included:

a. that “informed and voluntary consent” to providing bodily samples requires individuals to be made aware of, among other things, “what will be done with the DNA sample and related information/data once the investigation is completed.” The report found that the advice must be consistent with the mandatory provisions of s. 487.09(3) of the Criminal Code.

b. that the content of the consent form be re-evaluated, since the OIPRD had identified deficiencies in the current form.

c. that the policies and procedures regarding the retention of records be reviewed, in particular as they relate to destruction or removal of access to records containing the results of forensic DNA analysis pertaining to cleared individuals. The director who authored the report wrote, “I defy most readers to understand precisely what records are currently subject to the existing destruction policy and what records are to be retained and for how long.”

[186] There is no evidence that any of these recommendations were acted upon.

[187] The plaintiff argues that these factors demonstrate the need for deterrence and vindication.

[188] In contrast, the CFS argues that it has acted in good faith to protect privacy interests and abide by s. 487.09. It characterizes any breach as a technical one since there is no evidence of improper use of the DNA results. The CFS argues that the OIPRD report did not raise the same issues as the plaintiff in this proceeding; instead, it was geared towards the particular DNA canvas that the plaintiff participated in and did not investigate the defendant’s practices. In any event, the defendant claims Ontario has implemented recommendations made by the OIPRD. It relies on a February 2023 document produced by the Ministry of the Solicitor General that sets out guidance for conducting mass DNA canvasses and provides a new standard consent form in light of the OIPRD report.

[189] The CFS argues that the criticism about its retention of records related to the clarity of its retention policies, as opposed to a violation of s. 487.09(3). In my view, the distance the defendant is trying to create between the recommendation and the retention of records is not supported by the text of the actual recommendation:

The policies and procedures surrounding the destruction of or removal of access to records containing the results of forensic DNA analysis pertaining to cleared individuals should be reviewed. Clarity is needed as to what records are to be destroyed or made inaccessible and what records are to be retained. Consideration of this issue should be informed by the underlying rationale for Subsection 487.09(3) of the Criminal Code, the privacy interests of the affected parties and the need for efficient and effective police investigations.

[190] There is no evidence that the defendant did anything in response to this recommendation.

[191] In these circumstances, I find that an award of Charter damages would serve the purposes of vindicating the class members’ Charter rights and deterring future breaches.

[192] The next step in the assessment of damages is to consider whether there are any countervailing concerns. The defendant argues that its conduct does not meet an elevated fault threshold; it acted in good faith to comply with s. 487.09 and to protect privacy interests. It submits that the imposition of Charter damages for making a good faith error would deter effective governance at the CFS and similar institutions.

[193] In Ward, the Supreme Court of Canada held that in some cases, an award of Charter damages may interfere with good governance such that they should not be awarded unless the state conduct meets a minimum threshold of gravity. “The rule of law would be undermined if governments were deterred from enforcing the law by the possibility of future damage awards in the event the law was, at some future date, to be declared invalid”: Ward, at para. 39.

[194] The defendant argues that good governance concerns also apply where government policies, which precipitated unconstitutional actions, can be sufficiently connected to statutory provisions: Francis v. Ontario, 2021 ONCA 197, 154 O.R. (3d) 498, at para. 92. It argues that its role of providing forensic DNA services and retention of DNA profiles is connected to the Executive Council Act. It operates under a 1979 Order in Council which provides that its functions include producing legally admissible evidence through scientific examination to assist with the “just and effective enforcement of the law.” Thus, it argues that its policies and action further the duty assigned by the Executive Council Act.

[195] The plaintiff argues that good governance concerns do not apply and an award of Charter damages would have no impact on the CFS’s effective governance. In his view, the defendant has demonstrated that it is possible to abandon its prior practices which failed to comply with s. 487.09(3) of the Criminal Code.

[196] I am satisfied that there is a sufficient nexus between the CFS and the Executive Council Act that good governance concerns may be engaged in this case. I do not, however, accept that good governance concerns negate the appropriateness of s. 24(1) damages or necessitate an elevated level of fault. I note that the Supreme Court of Canada in Ward, at para. 38, discussed the interplay between the purpose of Charter damages and good governance concerns:

At one extreme, it may be argued that any award of s. 24(1) damages will always have a chilling effect on government conduct, and hence will impact negatively on good governance. The logical conclusion of this argument is that s. 24(1) damages would never be appropriate. Clearly, this is not what the constitution intends. Moreover, insofar as s. 24(1) damages deter Charter breaches, they promote good governance. Compliance with Charter standards is a foundational principle of good governance.

[197] In Ward, citing its earlier decision in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405, the Court recognized that the state must be afforded some immunity from liability for damages resulting from the conduct of certain functions that only the state can perform. It identified legislative and policy-making functions as one such area: Ward, at para. 40.

[198] The actions at issue here are a long way from legislative and policy-making functions. The defendant’s conduct was, in fact, at odds with the legislative direction. In my view, good governance concerns in this case require an award of damages for purposes of vindication, deterrence, and to promote good governance. They do not raise concerns that a damages award is not appropriate.

[199] Nor do I accept that a declaration would suffice in this case. The parties advised me that they do not seek forms of relief such as requiring the defendant to permanently remove the remaining STR profiles of the class members. I am advised this is because it would be virtually impossible to do so; the breach of the Charter will thus continue. In these circumstances, a declaration that there is an ongoing breach of Charter rights is performative. In my view, issuing a declaration about an ongoing breach that cannot be rectified does not provide sufficient deterrence of future Charter breaches. Nor would such a declaration meaningfully vindicate the rights of the class members.

[200] The last step in the analysis of Charter damages is to ascertain the appropriate quantum. In Ward, the Supreme Court of Canada found that, where the objectives of Charter damages are vindication and deterrence, making the appropriate determination of quantum is “an exercise in rationality and proportionality,” and will be guided by precedent: Ward, at para. 51.

[201] Factors that are relevant to quantum include the seriousness of the breach, having regard to the objects of s. 24(1) damages, the impact of the breach on the claimant, and the seriousness of the state misconduct. Damages must be appropriate and just to both the claimant and the state.

[202] The plaintiff has offered examples of Charter damages in other cases. Of these, I find Stewart v. Toronto (Police Services Board), 2020 ONCA 255, to be the most useful. In Stewart, the plaintiff was refused entry to Allan Gardens during the G20 protests in Toronto, and his backpack was searched in violation of s. 8 of the Charter. The breach lasted several minutes. The plaintiff was awarded $500 in damages. While the duration of the breaches in this case is markedly different than in Stewart, the actual harm suffered by the class members is similar. The facts in Stewart are closer than in those other cases cited by the plaintiff that involve, for example, administrative segregation in correctional institutions.

[203] Taking into consideration the fact that: (i) the Charter breach will never be rectified in this case, (ii) no actual harm to the class members has been established, but (iii) that there is a need for deterrence and vindication of the class members’ Charter rights, I am of the view that Charter damages of $1,000 per class member is appropriate and just.

[204] I now turn to consider whether those damages can be awarded on an aggregate basis.

[205] Under the Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 24(1) (“CPA”), the court may determine the aggregate of a defendant’s liability to class members where (i) monetary relief is claimed; (ii) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant’s monetary liability; and (iii) the aggregate or a part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members.

[206] In Ramdath v. George Brown College, 2014 ONSC 3066, 375 D.L.R. (4th) 488, at para. 42, the court found that, in class proceedings, aggregate damages should be more routine than exceptional. It noted the requirement in the CPA that aggregate damages can be reasonably determined, at paras. 43-44:

It is important to remember that the legislature rejected the more rigorous standard that had been recommended by the OLRC (can the damages be assessed without proof by members of the class with the same degree of accuracy as in an ordinary action?) and instead imposed a “less stringent test” (can the damages be reasonably determined without proof by individual class members?).

The key to understanding aggregate damages is in understanding that the measurement criterion is not what’s accurate but what’s reasonable. In striking a balance between accuracy (or as the OLRC put it, “the risk of imposing liability upon the defendants for an amount that exceeds the injury actually inflicted”) and access to justice (“the possibility of denying recovery to persons who have been injured”) the legislature intentionally tilted the balance in favour of access to justice. Hence the focus in s. 24(1) on whether all or part of the defendant’s monetary liability can reasonably be determined without proof by individual class members. [Footnotes omitted; Emphasis in original]

[207] I accept the plaintiff’s argument that the common conduct of the defendant in retaining DNA profiles provides the foundation for an aggregate award of s. 8 Charter damages. In addition, there is evidence in the record of the minimum class size to allow for a determination of the defendant’s liability.

[208] I note that the plaintiff seeks a direction that the defendant confirm the true class size given the current figure in the record is an underestimate. In my view, that is not required. The evidence does not suggest that the estimate is materially off. Further, it is rare that a class action sees a 100% take-up rate (if ever). I am more concerned about the disproportionate expenditure of resources to try to get a more accurate measurement of class size. As noted, the jurisprudence recognizes that aggregate damages awards strive for what is reasonable, not what is accurate. Accordingly, I decline to make the direction the plaintiff seeks.

[209] In conclusion, based on a minimum class size of 7,267, and a damages award of $1,000 per class member, the aggregate damages for which the defendant is responsible for totals $7,267,000.

Issue Seven: Does the conduct of the defendant warrant an award of punitive damages?

[210] The last common issue for determination is whether an award of punitive damages is required.

[211] Punitive damages are awarded where a defendant has engaged in “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour”: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 94.

[212] To award punitive damages, the plaintiff must satisfy the court that the defendant’s misconduct would otherwise go unpunished, and that “other penalties are, or are likely to be, inadequate to achieve the objectives of retribution, deterrence and denunciation”: Whiten, at para. 94. See also Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, 349 O.A.C. 360, at para. 113, where the Court of Appeal found that “[w]hat justifies punitive damages ultimately is the conclusion, in exceptional cases, that compensatory damages are simply insufficient to respond to the conduct being addressed.”

[213] The plaintiff relies on a class action decision in Bernstein v. People’s Trust Company, 2019 ONSC 2867, where Perell J. found that the defendant’s violations of consumer protection legislation were serious and “went to the very heart of the Legislature’s public purpose in providing protection” to consumers: at para. 320. In that case, Perell J. found that the defendant’s conduct was not malicious, but it was an intentional violation of the legislation, and displayed “ignorance, carelessness, or serious negligence.” An award of punitive damages was appropriate to serve the purpose of discouraging the repetition of the undesirable conduct: Bernstein, at paras. 321-323.

[214] In my view, there is no evidence of behaviour that warrants an award of punitive damages in this case. I accept that the CFS acted in good faith. It failed to do what it should have done, but it did not intentionally or recklessly violate the provision in the consent that class members signed. It did not display ignorance, carelessness, or serious negligence. It made a mistake, and it has corrected that mistake in advance of the trial of this action.

[215] This is not an appropriate case for punitive damages.

Costs

[216] The parties have advised me that they have reached a resolution on costs in advance of the release of these reasons. There is thus no reason to address costs.

J.T. Akbarali J.

Released: November 22, 2024

COURT FILE NO.: CV-18-00605134-00CP

DATE: 20241122

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICKY GRANGER

Plaintiff

– and –

HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF ONTARIO

Defendant

Proceeding under the Class Proceedings Act, 1992

Akbarali J.

Released: November 22, 2024

[^1]: The scope of the DNA canvas was problematic. The perpetrator had been described as a Black male in his mid-20s with a Jamaican accent. Many of the migrant workers tested, including Mr. Granger, did not match the description of the perpetrator in the slightest. The DNA canvas at the farm where Mr. Granger worked became the subject of a proceeding before the Human Rights Tribunal of Ontario. The proceeding was eventually settled on terms that included a requirement that the CFS delete permanently all electronic and digital data comprising and related to the DNA profiles of the migrant workers who provided DNA samples as part of that canvass. The CFS did so by identifying all electronic files relating to the case in question that contained DNA profiles from excluded donors, whether migrant workers or not, who provided reference samples, and deleted them.

[^2]: I note that the Manitoba Court of Appeal, like the parties hereto, characterize consent as an issue that impacts the reasonableness of the search, and finds that a warrantless search is reasonable is where there is consent. While I conclude that the validity of the consent may determine the reasonable expectation of privacy issue, I agree with the Manitoba Court of Appeal’s assessment of how the burden of proof should function in a civil claim based on the allegation of a breach of s. 8, and the validity of a consent.

[^3]: The plaintiff did not rely on compensation as a purpose of Charter damages in his notice of motion. Nevertheless, I address it because it was raised in argument.

Proceeding under the Class Proceedings Act, 1992

Overview

Brief Background

The Plaintiff’s Experience

The Certified Class

The CFS’s Processes

The Requirements of the Criminal Code and the Standard Form Consent

Issues

Preliminary Issue: The Expert Evidence

Dr. John S. Waye

Dr. Noah Rosenberg

Dr. Frederick Bieber

Conclusion – Expert Evidence Admissibility

Issue One: Is a DNA profile a “result” within the meaning of s. 487.09(3) of the Criminal Code?

Issue Two: Did the defendant’s seizure of bodily substances from the class members or retention of the results of the DNA tests and the associated records, breach the class members’ s. 8 rights? If so, were those breaches justified under s. 1 of the Charter?

General Principles

Did the class members have a reasonable expectation of privacy in their DNA profiles?

Subject Matter of the Search

Direct Interest in the Subject Matter

Personal Privacy Interests

Informational Privacy Interests

Subjective Expectation of Privacy

Is the subjective expectation of privacy objectively reasonable?

The Consent

Burden of Proof

Validity of the Consent

Was the electronic data relating to the DNA samples permanently removed?

Reasonableness of the Search and Continued Seizure

First Alleged Breach During Seizure of Sample and Search for Purposes of Exclusion

Second Alleged Breach Due to Continued Seizure of the DNA Profile

Is the breach of s. 8 justified under s. 1 of the Charter?

Issue Three: What limitation period applies to the causes of action advanced in this case?

Issue Four: Does the defendant’s conduct amount to the tort of intrusion upon seclusion?

Issues Five and Six: Are aggregate damages available to the class under s. 24 of the Charter?

Issue Seven: Does the conduct of the defendant warrant an award of punitive damages?

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Financial Outcomes

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 4