Farm Workers File $30 Million Class Action Lawsuit Against Ontario

By Neil Armstrong

A group of migrant workers from Jamaica and Trinidad has launched a $30 million class action lawsuit against the province of Ontario regarding the retention of their DNA.

They have raised objections to the collection of their DNA by the Ontario Provincial Police (OPP) and the retention of their DNA by the Ontario Centre of Forensic Sciences (CFS).

The applicants have filed for this sum in compensation not only for themselves but for all other people who have been subjected to similar treatment for the period of June 30, 2000 to the present.

Filed by lawyers Jody Brown and Kirk M. Baert of Koskie Minsky LLP on behalf of plaintiff, Micky Granger, a migrant worker, and other class members in the Ontario Superior Court of Justice on September 14, the statement of claim says in part that “a declaration that the Defendant’s storage and retention of DNA Results, including DNA profiles, created from the analysis of the Class Members’ bodily substances, is unlawful and contrary to section 487.09(3) of the Criminal Code…”

In addition to the $30 million being sought in damages, there is also a claim for $2 million in punitive damages.

Philip Klassen, a spokesperson for the Ministry of the Attorney General, says on September 17, 2018, Ontario was served with a statement of claim.

“Ontario will defend the action. As this matter is subject to litigation, it would be inappropriate to comment further,” he said.

Granger was among approximately 100 migrant workers who voluntarily provided body samples to the Ontario Provincial Police in the course of its investigation into a violent crime that occurred in Bayham, a municipality in Elgin County, Ontario in 2013. The bodily samples were provided to the CFS to obtain DNA results.

The OPP investigated a sexual assault of a woman who was attacked in rural Elgin County.

When she reported the assault to police, she described her attacker as a black migrant worker and provided a physical description. In the Elgin County OPP investigation that followed, police requested DNA samples from virtually every local migrant worker of colour regardless of their physical characteristics. The perpetrator was ultimately apprehended after he refused to provide police with a DNA sample. He pleaded guilty and was sentenced to seven years in prison.

The statement of claim says the Ontario Centre of Forensic Sciences is one of the most extensive forensic science facilities in North America.

 “The CFS is operated and overseen by the Defendant through the Ministry of Community Safety and Correctional Services. The CFS analyzes hundreds of bodily samples a year, extracting DNA, creating DNA Profiles and conducting comparative DNA analysis (collectively “DNA Results”).

It says the “CFS compares DNA Profiles obtained from criminal investigations to DNA Profiles of suspects. The comparative analysis can yield a match between two DNA Profiles to a degree of probability. The results of a comparative analysis are reported to law enforcement agencies for use in the investigation and prosecution of criminal offences, amongst other matters.”

The statement of claim notes that the class members in this action all voluntarily gave a bodily sample which was ultimately analyzed by the CFS. “Every Class Member was voluntarily assisting law enforcement agencies in the execution of their duties. In every instance, the bodily integrity of the Class Members was engaged because a sample was taken directly from their person.”

It said the collection and retention of DNA is supervised by the courts and protected in the Criminal Code. “Only very specific criminal convictions give rise to the retention of DNA Results by the state. When a voluntary donor’s DNA Profile is not a match to a criminal investigation, section 487.09(3) of the Criminal Code requires the destruction of samples and results.”

“The legal obligation is clear; the Defendant is not entitled to the DNA or DNA Results of innocent citizens.

“The DNA Results for the Class confirmed their DNA did not match a criminal investigation. Despite this, the CFS unlawfully retained the DNA Results from Class Members. The DNA results were retained indefinitely or were not destroyed in a timely manner.”

The statement of claim said the conduct of the Defendant violates section 8 of the Canadian Charter of Rights and Freedoms and is also a breach of the Freedom of Information and Privacy Act.

Chris Ramsaroop from Justicia for Migrant Workers (J4MW) says this is the third action “undertaken by the migrant workers to address this
injustice.”

Previously, the Office of the Independent Police Review Director (OIPRD) undertook a systemic review into the collection of the migrant workers DNA and there is an ongoing complaint at the Human Rights Tribunal of Ontario pertaining to the collection of the DNA by the OPP.

In July 2016, the Independent Police Review Director called on the Ontario Provincial Police and other police services in Ontario to adopt a policy to govern how DNA canvasses are conducted.

Public interest organizations and individuals had raised questions about how the OPP investigation had been conducted. 

"While I am satisfied that the OPP investigation was not motivated by racial prejudice, the nature and scope of the DNA canvass was overly broad and certainly had an impact on the migrant workers' sense of vulnerability, lack of security and fairness. A more focused DNA canvass could have reduced concerns about racial profiling. The model policy I am proposing can help ensure that future DNA canvasses do not result in concerns similar to those identified in this report," said Gerry McNeilly, Independent Police Review Director. 

The director also found that the Elgin County OPP investigation:

• Failed to recognize the vulnerabilities of the targeted migrant worker community and how those vulnerabilities were relevant to whether the consents obtained were truly informed and voluntary
• Failed to adequately take measures to ensure that decisions by workers not to provide DNA samples remained confidential, particularly from their employer

• Failed to take steps to explain the destruction process to individuals asked to provide DNA samples