Dozens of migrant farm workers’ rights have come under scrutiny in an Ontario tribunal’s work on a complaint stemming from a 2013 incident involving the pursuit of a suspected rapist. (CBC)
Provincial police targeted 54 migrant farm workers on racial grounds during the 2013 manhunt for a suspected rapist, forcing dozens of workers to hand over DNA samples despite “obvious” physical evidence they did not match the suspect’s description, according to the Tribunal on Human Rights of Ontario.
The recent ruling is the first time the provincial rights watchdog has ruled on how law enforcement conducts DNA checks and, perhaps most importantly, how police interact with migrant farm workers — a population the judge called “vulnerable, easily identifiable group” who are “clearly distinguished from the predominantly white community”.
The 64-page decision also highlights the large power imbalance between migrant farm workers participating in Canada’s Seasonal Agricultural Worker Program (SAWP), their Canadian employers and the police, according to Shane Martinez, a Toronto-based human rights lawyer representing workers in case.
“The decision carries quite a lot of weight for us in terms of rehabilitating these 54 workers for an experience that is nothing short of egregious in terms of police misconduct,” he said.
“The OPP is aware of the decision and is currently reviewing it,” said OPP Sgt. Carlo Berardi, acting media relations coordinator, said in an email Thursday to CBC News. “It would be inappropriate to comment further at this time.”
OPP discriminated based on ‘race, colour, place of origin’
While investigating the violent sexual assault of a woman living alone in her home in rural Elgin County in 2013, the OPP discriminated against dozens of migrant farm workers “because of race, color and place of origin,” Human Rights Tribunal judge Marla Burstyn wrote of man in Ontario decision released Monday.
The woman told investigators her attacker was black, male and young; and in his mid-20s. He was between 5 feet 10 and 6 feet tall. She also believed he was a migrant worker with what she believed to be a Jamaican accent.
If they do not provide their DNA to the police, they will not be returned to the farm to work. – Shane Martinez, migrant worker advocate
Based on that information, the OPP began searching the five nearest farms and eventually decided to seek voluntary DNA samples from the workers, something the tribunal noted none of the officers had experience doing.
The lead plaintiff in the case, Leon Logan, a migrant farm worker from Jamaica, described being driven by his employer to police officers waiting in unmarked vehicles at the farm.
The boss explained to him that there had been a rape and that Logan should give a DNA sample to the police to clear his name. If he didn’t, the farmer told him, he would no longer be allowed to work and would likely be sent back to Jamaica.
“What we saw in this case was that the police actually used the employer-employee relationship by going to the employer of the migrant workers and getting them to help them round up the migrant workers,” Martinez said.
“If they didn’t comply with the police investigation, if they didn’t give their DNA to the police, then they wouldn’t be put back on the farm to work.”
The attacker was missed during DNA analysis
Over the course of several days, 100 farm workers on five farms in Elgin County went through a similar experience and, like Logan, 96 provided DNA samples, while four refused.
At no time was Logan or any of the 99 other migrant workers offered a phone, the judge noted, “to call a lawyer or anyone else for that matter to discuss the police request.”
“There is no evidence that the OPP has considered the barriers migrant workers face in exercising this right to counsel, such as the likelihood that migrant workers will have access to a telephone, their level of education and language skills, and the fear that to suffer from the exercise of this right”.
What’s more, the tribunal said many of the men who had their DNA tested “obviously” did not match the description of the suspect.
“There is evidence, discussed above, of migrant workers who were asked for a DNA sample even though they were too short, too heavy, too old and/or had too much facial hair to reasonably match the description ” the judge wrote, noting that one of the possessed men was only 5-foot-2, East Indian, weighed 100 pounds and had long black hair and a goatee.
Ultimately, the report noted, none of the DNA samples collected by police matched those found at the crime scene, and police “somehow missed the assailant during DNA testing at the first farm.”
The SWAP system is ‘rotten to the core’, advocates say
It wasn’t until November 2013 that police arrested Henry Cooper, who pleaded guilty to sexual assault with a weapon, forcible confinement and making death threats, and was sentenced to seven years in prison. The ruling noted that police obtained Cooper’s DNA “without his consent” by picking up a can, a tray of pizza slices and a napkin that he had discarded.
Logan has asked the tribunal for $30,000 in compensation for his treatment at the hands of the police. The OPP said he should not receive more than $2,000. The tribunal awarded him $7,500 for “injury to dignity, feelings and self-respect”.
While labor advocates consider the human rights ruling a victory, Chris Ramzarup, who is from the group Justicia for Migrant Workers (J4MW), said he would not be surprised if it happened again.
“This is not about one employer. It’s not about a few cops being rude. The whole system is rotten to the core and we need to have fundamental changes.”
That’s why the group and their lawyer will be at the Ontario Human Rights Tribunal again in November to set a hearing date to force the OPP to create a set of policies on how officers deal with migrant workers and the uncertain legal and economic position they are in while participating in SAWP.
“It’s about us as a society standing up and condemning the police and ending overuse,” Ramzarup said. “We need to develop strong public policies involving migrant workers and developing the solution.”
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