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Court File No.: CV-18-00605134-00CP ONTARIO

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Court File No.: CV-18-00605134-00CP ONTARIO Court File No.: CV-18-00605134-00CP ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MICKY GRANGER Plaintiff - and - HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO Defendant Proceeding under the Class Proceedings Act, 1992 MOTION RECORD OF THE PLAINTIFF (CERTIFICATION) (Returnable November 27 & 28, 2019) VOLUME I of II March 18, 2019 GOLDBLATT PARTNERS LLP 20 Dundas Street West, Suite 1039 Toronto ON M5G 2C2 Jody Brown LS# 58844D Tel: 416-979-4251 / Fax: 416-591-7333 Email: [email protected] Geetha Philipupillai LS# 74741S Tel.: 416-979-4252 / Fax: 416-591-7333 Email: [email protected] Lawyers for the Plaintiff - 2 TO: HER MAJESTY THE QUEEN IN RIGHT - OF THE PROVINCE OF ONTARIO Crown Law Office – Civil Law 720 Bay Street, 8th Floor Toronto, ON, M5G 2K1 Amy Leamen LS#: 49351R Tel: 416.326.4153 / Fax: 416.326.4181 Lawyers for the Defendant TABLE OF CONTENTS TAB DESCRIPTION PG # 1. Notice of Motion (Returnable November 27 and 28, 2019) 1 A. Appendix “A” – List of Common Issues 6 2. Affidavit of Micky Granger (Unsworn) 8 3. Affidavit of Tanya Atherfold-Desilva sworn March 18, 2019 12 A. Exhibit “A”: Office of the Independent Police Review Director – 20 Systemic Review Report dated July 2016 B. Exhibit “B”: Office of the Independent Police Review Director - 126 Executive Summary and Recommendations dated July 2016 C. Exhibit “C”: Office of the Independent Police Review Director – Terms of 142 Reference as of March 2019 D. Exhibit “D”: Affidavit of David D.J. Truax sworn August 30, 2016 146 E. Exhibit “E”: Centre of Forensic Investigators & Submitters Technical 155 Information Sheets effective April 2, 2015 F. Exhibit “F”: Centre of Forensic Sciences, Technical Information Sheet, 159 DNA Information effective September 18, 2017 G. Exhibit “G”: Centre of Forensic Sciences, Investigators & Submitters, 171 Biology Report Guide effective November 13, 2018 H. Exhibit “H”: House of Commons Debates – Official Report (Hansard) 182 dated Thursday, September 25, 1997 I. Exhibit “I”: House of Commons Debates - Official Report (Hansard) 266 dated Friday, March 27, 1998 VOLUME II OF II J. Exhibit “J”: House of Commons Debates – Official Report (Hansard) 332 dated Tuesday, May 12, 1998 K. Exhibit “K”: House of Commons Debates – Official Report (Hansard) 436 dated Tuesday, September 29, 1998. - i v TAB DESCRIPTION - PG # L. Exhibit “L”: Public Protection, Privacy and the Search for Balance: A 512 Statutory Review of the DNA Identification Act, Final Report, dated June 2010 M. Exhibit “M”: BILL C-3: THE DNA IDENTIFICATION ACT, Prepared 611 by Marilyn Pilon, Law and Government Division, 14 October 1997, Revised 22 May 1998 N. Exhibit “N”: Annual Report of the Privacy Commissioner 1998-99 619 O. Exhibit “O”: Proposed Litigation Plan 729 1 Court File No.: CV-18-00605134-00CP ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MICKY GRANGER Plaintiff - and - HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO Defendant Proceeding under the Class Proceedings Act, 1992 NOTICE OF MOTION (CERTIFICATION) (Returnable November 27 & 28, 2019) The Plaintiff will make a motion to Justice Glustein, on November 27 & 28, 2019, at 10:00 AM or as soon after that time as the motion can be heard, at the Ontario Superior Court of Justice, Osgoode Hall, 130 Queen Street West, Toronto, Ontario. PROPOSED METHOD OF HEARING: The motion is to be heard orally. THE MOTION IS FOR: 1. an Order: a) certifying this action as a class proceeding pursuant to the Class Proceedings Act, 1992 (the “CPA”); b) describing the class as: 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 2 any bodily samples obtained within the meaning of s. 487.05(1)(b) of the Criminal Code, for the time period June 30, 2000 to the present. (together referred to as the “Class Members” or the “Class”); c) appointing Micky Granger as the representative plaintiff of the Class; d) appointing Goldblatt Partners LLP as class counsel; e) stating that the common issues in this proceeding are as set out in Appendix “A”; f) specifying that the Class shall be notified of the certification of this action in a manner to be approved by the Court, and that Class Members shall have a right to opt out of the action in a manner to be approved by the Court; g) the costs of this motion; and, h) such other order as this Honourable Court may deem just. THE GROUNDS FOR THE MOTION ARE: 1. the Class Members all voluntarily donated a bodily substance sample, in most instances a saliva sample, which was analysed by the Centre of Forensic Sciences (CFS) to extract DNA to be compared to DNA found at a crime scene; 2. the analysis performed by the CFS created a DNA profile for each Class Member and other investigative results which were kept by the Defendant; 3. the Class Members were all assisting law enforcement in the investigation of criminal offences; 4. the Class Members’ DNA was not a match for DNA from a crime which was being investigated; 5. the Criminal Code requires the destruction and permanent removal of access for DNA samples and results of DNA analysis for innocent voluntary donors; 3 6. the destruction and permanent removal of access pursuant to the Criminal Code must occur without delay once the voluntary donor is found to not match a crime scene; 7. the CFS keeps the DNA profiles of the Class Members along with other investigative results in a database accessible to select staff members at CFS; 8. the CFS keeps the DNA profiles and other investigative results due to the automated and inherently common process of forensic analysis and record retention practices of the Defendant; 9. the retention of the DNA profiles and investigative results is contrary to the Criminal Code and as a result in violation of the Class Members’ section 8 right to be secure against unreasonable search or seizure pursuant to the Canadian Charter of Rights and Freedoms. The retention is a violation of the Class Member’s right to privacy and constitutes the tort of intrusion upon seclusion; 10. the consent of the Class Members in donating their DNA was not fully informed given the Defendant’s retention practice which was not made known to the Class Members; 11. this action meets the criteria for certification set out in s. 5(1) of the CPA, namely; a) the Class Members’ have a viable cause of action for the violation of their privacy and violation of their section 8 right under the Charter; b) there is an identifiable class objectively bound by time and the practice of DNA collection and analysis as dictated by the Criminal Code; c) the retention at issue is common to the Class Members and the product of an automated process that raises common issues; d) a class action would be the preferable procedure; and, 4 e) there is a representative plaintiff who would be prepared to act in the best interests of the Class. 12. the Class Proceedings Act, 1992, S.O. 1992 c. 6, and in particular, sections 5, 12, 17, 19-25, 34 and 35; 13. the Canadian Charter of Rights and Freedoms, and in particular sections 8 and 24; 14. The Criminal Code, R.S.C., 1985, c. C-46, s. 487; and, 15. such further and other grounds as counsel may advise and this Honourable Court may permit. THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion: 1. The following affidavits and the exhibits thereto: a) Micky Granger, to be sworn; b) Tanya Atherfold-Desilva, sworn March 18, 2019. 2. The pleadings and proceedings herein; and, 3. Such further and other material as counsel may advise and this Honourable Court may permit. March 18, 2019 GOLDBLATT PARTNERS LLP 20 Dundas Street West, Suite 1039 Toronto ON M5G 2C2 Jody Brown LS# 58844D Tel: 416-979-4251 / Fax: 416-591-7333 Email: [email protected] Geetha Philipupillai LS#: 74741S [email protected] Tel: 416-979-4252 /Fax: 416-591-7333 Lawyers for the Plaintiff 5 TO: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO Crown Law Office – Civil Law 720 Bay Street, 8th Floor Toronto, ON, M5G 2K1 Amy Leamen LS#: 49351R Tel: 416.326.4153 Fax: 416.326.4181 Lawyers for the Defendant 6 APPENDIX “A”: LIST OF COMMON ISSUES 1. Is a DNA profile a “result” within the meaning of s. 487.09(3) of the Criminal Code? 2. Is the Defendant’s record retention practice regarding the Class, including but not limited to the retention of DNA profiles, in violation of s. 487.09(3) of the Criminal Code? 3. If the answer to common issue 2 is “yes”, did the Defendant breach the Class Members' rights under section 8 of the Charter by virtue of the retention of results or in the initial seizure of bodily substances? (a) If so, are its actions saved by section 1 of the Charter? 4. If the answer to common issue 2 is “yes”, does the Defendant’s conduct amount to the tort of intrusion upon seclusion? 5. If the answer to common issue 2 is “yes”, did the Defendant breach information destruction obligations owed to the Cass pursuant to the Freedom of Information and Protection of Privacy Act? 6. If the answer to common issue 4 or 5 is “yes”, does the conduct of the Defendant warrant an award of punitive damages? 7. If the answer to common issue 3 is “yes” and 3(a) is “no”, are damages available to the Class under section 24 of the Charter? 8.
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