Provincial police discriminated against migrant workers based on their race when they conducted a DNA sweep as part of a 2013 sexual assault investigation, the Ontario Human Rights Tribunal has found.
In a ruling released earlier this week, the tribunal said Ontario Provincial Police officers collected DNA samples from 96 seasonal labourers in rural Bayham, Ont., even though many “did not match even a generous description” of the suspect, aside from the fact they were all Black or brown migrant farm workers.
HRTO adjudicator Marla Burstyn found the officers’ conduct during the sweep was discriminatory on the basis of “race, colour and place of origin,” contravening the Human Rights Code.
Ontario Provincial Police said Thursday they are reviewing the decision but declined to comment further.
The case related to a police investigation conducted after a woman who lived alone near several farms reported being violently sexually assaulted in her home.
The woman described the suspect as a male migrant worker who was Black and had a heavy accent, possibly a Jamaican one, the tribunal decision said. The suspect was also described as in his mid-to-late 20s, between five feet 10 inches and six feet tall, and muscular.
Officers, however, collected DNA samples from Black and brown migrant workers of different heights, builds and ages, the document said. Among them was a man who was five feet two inches tall, 40 years old and described as East Indian, Burstyn wrote as an example.
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Though the tests were done on a voluntary basis, police failed to consider the vulnerabilities of racialized migrant workers, who face precarious employment and visibly stand out from the predominantly white community they work in, the adjudicator wrote.
“The vulnerabilities of the migrant workers are linked to their race, colour and place of origin and put them at risk of discrimination in the context of the OPP’s DNA canvass,” Burstyn said in the ruling.
She noted that under the Seasonal Agricultural Worker Program, employers can end migrant workers’ employment and cause their deportation for any reason, giving employers most of, if not all, the power in that relationship.
Shane Martinez, the lawyer representing the workers, said the decision is the first of its kind in Canada to analyze a human rights violation in the context of a DNA sweep, and the first to examine interactions between migrant farm workers and police through a human rights lens.
“Racialized people in those communities are really at the bottom socioeconomic rung of society,” Martinez said.
“They’re among the most abused and exploited individuals in Canadian society, and we have this dynamic of white officers coming in and exercising that authority … in order to advance this investigation.”
He said the tribunal reaffirmed some of the criticism levelled at the program — and the “structural vulnerabilities” that exist within it — by other judicial bodies across Canada.
Patricia DeGuire, chief commissioner of the Ontario Human Rights Commission, a body separate from the tribunal and that acted as an intervener in the case, said the agency is pleased with the decision.
“Migrant workers are among the most vulnerable workers in Ontario, and we must continue to offer them the protections that all workers and community members are entitled to,” she said.
Chris Ramsaroop, an organizer with advocacy group Justice for Migrant Workers, said many people see such workers as “seasonal” or “temporary” even though many have decades-long attachments to the communities they live in.
“It’s easy to erase them, so it’s easy to target them,” said Ramsaroop. “They’re not seen as part of the communities.”
The ruling awarded $7,500 in compensation to Leon Logan, the lead applicant. A news release issued by Justice for Migrant Workers said the parties have reached an agreement to provide the other 53 applicants the same award, which would amount to $405,000 in total.
A hearing will be scheduled to address public interest remedies, where the applicants will seek an order to have their DNA samples destroyed and another to require OPP to develop a policy ensuring DNA sweeps are compliant with the Human Rights Code, the group said in the release.
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