They were hunting for a rapist, but OPP ended up walking over migrant farm workers’ rights, tribunal finds

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A DNA sweep of nearly 100 migrant farm workers in rural Ontario during a police investigation into a sexual assault may have led to an arrest, but it also violated the rights of those caught up in the dragnet.

That’s the conclusion of the province’s human rights watchdog, after reviewing a 2013 police operation.

In a decision released this week, the Human Rights Tribunal of Ontario found that lead complainant Leon Logan, a former migrant worker from Jamaica, was targeted because of his race, colour and place of origin.

The sweep in question was undertaken even though many of the workers did not fit the description police had of a suspect.

“We won,” exclaimed Logan, 37, in a telephone interview from South Carolina, where he now works in construction on a work visa. “The decision is very important to me and all migrant farm workers who were treated differently because of the colour of our skin.”

While the decision stops short of declaring what happened racial profiling, it calls into question whether the workers submitted their DNA samples “voluntarily,” given their precarious employment and immigration status, factors that would hinder their ability to say no to authorities.

“It’s a relief and a vindication that what occurred was wrong. The human rights tribunal said that this was racial discrimination,” said Chris Ramsaroop of Justicia for Migrant Workers, a grassroots advocacy group.

“Clearly in the community where they work and live, they’re still seen and treated as criminals. This is another step into ensuring that they’re not criminalized and they’re not targeted.”

The tribunal recognized that police may use a DNA sweep to investigate a crime and an individual’s race as a criminal profile. The tactics led, indirectly, to the arrest of a suspect in this case.

However, it said the OPP cast its net too widely and ignored the suspect’s other physical descriptors, failing to incorporate them when asking for migrant workers’ DNA samples.

“If the DNA canvass was discriminatory and in violation of the Code, the success of the DNA canvass does not justify the conduct,” ruled adjudicator Marla Burstyn.

“In other words, the end cannot justify the means.”

Lawyer Shane Martinez, who represented the workers, said the tribunal decision was the first time a human rights analysis has been applied to DNA sweeps in Canada and focused on discrimination by the police against migrant farm workers.

“The decision confirms what has been found time and again by Canadian courts and tribunals, which is that migrant farm workers experience severe systemic vulnerability by virtue of their social and economic marginalization. The police took advantage of those vulnerabilities in this investigation,” Martinez told the Star.

“This decisionreminds us of the significant work that remains to be done to understand and combat anti-Black racism and its impact on migrant farm workers across Canada.”

In October 2013, a woman was raped at her home in Bayham, a farming community in rural Ontario, and provided police with the description of the suspect: a Black male with a Jamaican accent, between five-foot-10 and six-feet tall, “very muscular with no excess fat,” no facial hair, mid to late 20s, with full nose and lips.

Four days later, officers from the OPP Elgin County detachment went from farm to farm to collect DNA samples from migrant workers of a wide range of heights, weights and ages.

Officials collected 96 DNA samples from “black and brown” migrant farm workers in four farms near the crime scene. Logan was among the workers who signed his consent to give his sample.

“I didn’t want to do it,” Logan, a father of two, testified virtually from Jamaica before the tribunal hearing in November. “The whole process made me feel sad, defeated and humiliated.”

His would become the lead case for a group of 54 complainants against the OPP.

During the human rights hearing, the OPP denied the discrimination claim and argued that the DNA sweep was based on the description of the assailant as a migrant farm worker and the proximity of migrant farmworkers to the crime scene.

Since the end of the harvest was approaching and the seasonal workers would be leaving Canada soon, it argued, authorities were racing against time to find the suspect. Authorities could not have discriminated against the workers, police said, given that they explained the DNA request was voluntary.

“The problem with not considering the additional information that the police had becomes apparent through the evidence that there were many migrant workers affected by the DNA canvass who so obviously did not reasonably match the suspect description,” wrote Burstyn.

“There is evidence, discussed above, of migrant workers who were asked for a DNA sample even though they were far too short, too heavy, too old, and/or had too much facial hair, to reasonably match the description.”

She gave the “extreme example” of the DNA collection from a Mr. Persad, an Indian migrant worker, who was five-foot-two, 100 pounds, 40 years old, with long black hair and a goatee.

It was almost a month after the sexual attack when investigators identified Henry Cooper, one of two workers who did not give a DNA sample, as a suspect. Through surveillance, police picked up a pop can, pizza slice tray and napkin discarded by Cooper without his consent and found a DNA match. The migrant worker from Trinidad and Tobago later received a seven-year jail sentence.

Despite the OPP’s arguments that witness descriptions weren’t always accurate and reliable, Burstyn cited the victim’s police statement and found “significant specificity and reliability” about the suspect information.

The adjudicator called out the investigators’ use of the suspect’s physical description in a news release accompanied by a composite sketch.

“I do not accept this part of the OPP’s explanation for disregarding the physical description entirely, that they simply could not trust the accuracy of the victim’s physical description of the assailant and therefore the DNA canvass was necessarily broad,” said Burstyn.

On the argument of the voluntariness of the DNA operation, the tribunal cited the testimony of expert witness Jenna Hennebry, a Wilfrid Laurier University professor, who has conducted extensive research about Canada’s seasonal agricultural worker program (SAWP) and the “systemic vulnerabilities of racialized migrant workers.”

Hennebry testified that seasonal farm workers from the Caribbean and Latin America are tied contractually to work for a specific employer, which fosters exploitation and discrimination because whether a worker is recalled to work in Canada is decided solely by the employer.

“A critical aspect of this case is that the OPP’s request for a voluntary DNA sample was being made in the context of a highly vulnerable racialized community,” said Burstyn.

“Layered onto this precarious employment and control by their employer, is that most SAWP workers are men from poor households who often have low levels of education, are socially isolated due to the structure of the SAWP, and face systemic barriers in protecting their legal rights and accessing justice.”

Logan’s testimony also highlighted the role of his employer in the DNA sweep, in bringing Logan in from the field to meet with the police, telling him the purpose of the DNA testing, and the letter from the employer to the police that he decided not to bring back three of the migrant workers who refused to provide DNA samples.

“The fear of losing his job and the limitations on his ability to assert his rights took away any real choice from him. Based on the totality of the evidence, I accept Mr. Logan’s testimony to be credible that providing his DNA was not voluntary,” said Burstyn.

“I make this finding on a balance of probabilities despite the fact that Mr. Logan signed the Consent Form and clearly stated on the audio recording that he would give his DNA, because he had no real power to choose in these circumstances.”

The tribunal awarded Logan $7,500 in compensation “for injury to dignity, feelings and self-respect” for the discrimination in this case. Under an agreement reached by the parties, the remaining 53 migrant workers will also each receive the same amount.

“It’s never about money. We just wanted the police to do the right thing, so things like this won’t happen again. I still feel very bad about it,” said Logan, who, along with other complainants, has asked the OPP to destroy their DNA samples from its data set. The tribunal will consider that with other non-monetary and public interest remedies in another hearing.

Both the OPP and Solicitor General’s office said they’re aware of and are reviewing the tribunal decision.