Proceedings are now underway as the Human Rights Tribunal of Ontario (HRTO) works to determine whether dozens of migrant workers were racially profiled by Ontario Provincial Police (OPP) during a sexual assault investigation in 2013.
The allegation stems from a DNA sweep the OPP had conducted on nearly 100 migrant workers in relation to a mid-October, 2013, sexual assault in Bayham, Ont.
Henry Cooper, a migrant worker from Trinidiad, was eventually arrested after refusing to provide a DNA sample. He pleaded guilty to sexual assault with a weapon, forcible confinement and uttering death threats and was sentenced to seven years in prison.
Of the nearly 100 workers who had their DNA sampled, 54 are now bringing the allegations before the HRTO, claiming they were targeted based on their race, country of origin and their status as migrant workers.
On Monday, the HTRO opened its hearing on the matter.
The lead applicant in the case is Leon Logan, one of the 54 migrant workers who had their DNA collected during the 2013 investigation.
The outcome of his case against the respondent, the OPP, will have an impact on the remaining 53 applications, with findings or remedies ordered as a result having the potential to apply to the other migrant workers’ applications.
In his opening submissions, Logan’s counsel, Shane Martinez, argued the OPP had disregarded the suspect description provided by the victim of the sexual assault.
He added that the migrant workers who were asked to provide DNA samples had a wide range of ages, heights and weights. Facial hair and other identifying features were also disregarded, Martinez added.
Matthew Horner, acting as counsel on behalf of the Ontario Human Rights Commission (OHRC), added that the OHRC endorses Martinez’s statement.
“The evidence you will hear in this application will show a clear and systematic process, adopted by the police, to identify and target a large group of vulnerable people for adverse treatment,” Horner said.
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“The evidence will show that race, colour, place of origin were clearly factors, if not the factors, in the adverse treatment.”
Christopher Diana, who serves as counsel for the respondent, said in his opening submissions that “OPP investigators followed the evidence.”
“And in so doing, the OPP was able to arrest and convict the perpetrator of this violent offence only days before he flew back to the Caribbean. As you will see and hear in the evidence, the voluntary DNA canvass was absolutely crucial to this outcome,” Diana added.
Martinez then called on his first witness Dr. Jenna Hennebry, an associate dean, program coordinator and associate professor at Wilfred Laurier University with expertise in migrant worker rights.
Hennebry’s testimony surrounded the “systemic inequities” and the “vulnerabilities faced by the racialized workers” in the Seasonal Agricultural Worker Program (SAWP), which allows employers to hire migrant workers
She added that a “power imbalance” between employers and migrant workers leaves the latter group feeling like they cannot refuse a request to comply with law enforcement, tied to fear of losing employment.
“Under the current SAWP, it’s very challenging to create conditions that would enable free and informed consent,” Hennebry said.
This sentiment was echoed by Logan, the lead applicant in the case and one of 54 migrant workers who had their DNA sampled.
In his testimony, Logan said he didn’t want to provide a sample, but that he provided consent because he was worried about what his employer might do if he didn’t.
“The whole process made me feel a way. It made me feel sad, it made me feel defeated, it made me feel humiliated,” Logan told the hearing.
He later added that he felt he was being treated as a suspect “because of the colour of my skin and where I’m from.”
The final witness of the day was Det. Supt. Karen Gonneau, who was involved in the OPP investigation of the 2013 sexual assault.
Gonneau took notes of the victim’s initial interview with investigators, which had provided officers with a suspect description.
She notes that victim had provided descriptions of the suspect’s height, age, “very muscular” build, along with descriptions of his face, with Gonneau quoting the victim as saying the suspect had a “typical negro nose.”
The victim also told police the suspect was a migrant worker.
In his questioning of Gonneau, Martinez said the officer did not make note of any doubts or misgivings about the accuracy of the victim’s description.
As for the DNA sweep of nearly 100 workers, Gonneau said this was influenced by a threat to public safety and time constraints, with police worried that migrant workers may be leaving Canada within days as their seasonal contracts draw to a close.
“Understanding the circumstances under which the description was obtained, I think it would’ve been a misstep to stay so dedicated to that description when we really had nothing else that was going to help us,” Gonneau said.
Martinez is expected to continue his questioning of Gonneau as the hearing enters into its second day on Tuesday.
The HRTO has set aside seven days for the trial, all of which will be done virtually amid health protocols brought on by the COVID-19 pandemic.
The incident was previously explored by the Office of the Independent Police Review Director (OIPRD).
In his 2016 report, Gerry McNeilly, who was the head of the office at the time, found the OPP were not conducting racial profiling during the 2013 investigation.
He also said the incident exemplifies why the police force should create a policy on DNA canvassing.
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