Migrant Rights

VICTORY: Human Rights Tribunal of Ontario finds that police engaged in racial discrimination against migrant farmworkers during DNA sweep

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TORONTO – On Monday, August 15, 2022, the Human Rights Tribunal of Ontario (HRTO) delivered a historic ruling following a 9-year legal battle between 54 migrant farm workers, the Ontario Provincial Police (OPP), and the Ministry of the Solicitor General.

The underlying incident stemmed from a October 2013 sexual assault that occurred near the community of Bayham, Ontario. As part of its investigation into the incident, the OPP conducted a DNA sweep to collect samples from dozens of migrant farmworkers employed in the region.

The HRTO’s 64-page ruling is the first human rights case of its kind in Canada to examine allegations of systemic racial profiling and discrimination by the police towards migrant farmworkers. The decision details how the police exploited systemic vulnerabilities experienced by participants of the the Seasonal Agricultural Worker Program, and involved the workers’ employers during the investigation. It was found that Leon Logan (the lead applicant for the group) and his fellow workers were targeted solely on the basis of their skin colour and their status as migrant farmworkers, and that DNA samples were obtained from them even if they had alibis or did not match the suspect description.

The Tribunal found that the police’s conduct during the DNA sweep was contrary to section 1 of Ontario’s Human Rights Code, and that it violated Mr. Logan’s right to be free from discrimination by improperly targeting him on the basis of his race, skin colour, and place of origin. Damages in the amount of $7,500 were ordered for Mr. Logan. The parties have also reached an agreement between them which will provide a pathway for the remaining 53 applicants to receive the same award granted to Mr. Logan, resulting in a potential aggregate damages award of $405,000. A subsequent hearing to address public interest remedies remains to be scheduled, where the applicants will seek an order that their DNA samples be destroyed and that the OPP be required to develop a policy that ensures DNA sweeps are compliant with the Human Rights Code.

Chris Ramsaroop of Justicia 4 Migrant Workers (J4MW) observes that “This is a significant victory by a group of courageous workers whose strength in numbers and a burning desire for change lead to today’s victory. These workers fought and will continue to fight to end criminalization, and racist police practices. This isn’t about a few bad apples though; the entire system is rotten to its core.”

Shane Martinez, the lawyer representing the 54 migrant farmworkers who brought the case, states “While this decision represents a landmark victory, it also reminds us of the significant work that remains to be done to understand and combat anti-Black racism and its impact on migrant farmworkers across Canada. The oppression and exploitation endured by tens of thousands of racialized migrant farmworkers in this country is a shameful part of both Canadian history and our present-day reality.”

For interviews and additional information, please contact:

  • Chris Ramsaroop (Justicia 4 Migrant Workers): Tel: 647-834-4932 / E-mail: j4mw.on@gmail.com 
  • Shane Martínez (Lawyer for the 54 Migrant Farmworkers): Tel: 647-717-8111 / E-mail: shane@martinezlaw.ca 

Please click here for the pdf version of our press release.

Click here for a link to the full legal decision.

EXCERPTS OF INTEREST FROM THE DECISION: 

“A police request for DNA from a person for forensic analysis as a method to investigate a crime, even when the request is voluntary, is a significant intrusion on one’s personal privacy and places a high degree of scrutiny on a person.” [para 94]

“In conducting the DNA canvass in the manner it did, the migrant workers’ vulnerabilities, which are rooted in the intersectionality of Code grounds raised in the Application, likely helped the OPP obtain the consent of Mr. Logan and the other migrant workers to provide their DNA sample.” [para 158]

“[M]igrant workers are tied to a single employer under the SAWP and employers are empowered to fire and deport migrant workers without reason at any time, creating a power imbalance in the employment relationship.” [para 159; accepting the expert evidence of Dr. Jenna Hennebry]

“[M]ost 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.” [para 159; accepting the expert evidence of Dr. Jenna Hennebry]

“It is highly significant evidence that the police organized the DNA canvass of the migrant workers with the assistance of their employers and on the employers’ property.” [para 166]

“If the DNA canvass was discriminatory and in violation of the Code, the success of the DNA canvass does not justify the conduct. In other words, the end cannot justify the means.” [para 177]

“In the context of these migrant workers who visibly stand out, and are a clearly differentiated minority group from this rural White community, one can readily see from this evidence how relying solely or predominantly on their migrant worker status in selecting them for investigation of a crime when additional information was available, subjected them to over-investigation by police.” [para 193]

Join us at the Niagara Wine Fest 23 Sept and take action

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grapeandwinefest

Niagara’s billion-dollar wine and grape industry relies heavily on the skill and sacrifices of migrant workers, who are mainly from the Caribbean and Mexico. Their economic and social impact is far reaching, yet they remain invisible and excluded from today’s celebration.

Since 1966, thousands of migrant workers have been employed in Ontario’s fields and greenhouses. Migrant workers are tied to an employer, are denied labour and social mobility and must return home when their contracts end. Even though they pay into Canada’s social safety net, migrant workers are denied many of the basic entitlements Canadians enjoy. If we peel back the veil, we can see the wealth of local wineries and vineyards occurs on the backs of unfree workers.

When migrant workers are injured or sick they are often sent home, thus downloading healthcare costs to the families of the sick and injured. Many of these workers are no longer able to work after sustaining injuries and sicknesses while working in Canada. Between 2001-11, 787 migrant farm workers were returned to their countries of origin due to illness or injury — 98% of these repatriations were not based on workers’ requests.

Dozens of migrants have died as a result of working conditions on farms. These include the deaths of migrant farm workers such as Ned Livingston Peart, Sheldon McKenzie, Omar Graham and  Ezequiel Cervantes-Nava, all of whom died from preventable workplace accidents. To date, there has never been a coroner’s inquest into the death of a migrant farm worker anywhere in Canada.

Farm workers are not entitled to overtime pay, holiday pay or many other protections under Ontario’s Employment Standard Act. Few protections exist for farm workers from pesticides, chemicals or dangerous working conditions.

TAKE ACTION:

Phone and/or email your Member of Parliament (click here to find them by your postal code), and CC J4mw.on@gmail.com. You can also tweet @AhmedDHussen and @PattyHajdu.
Ask them to support:

  1. Landed status on arrival for all migrant workers;
  2. Equal access to all social programs (including Employment Insurance)
  3. Ending the unilateral repatriations of migrant workers, and implementing an appeals process so migrant workers aren’t simply deported because an employer says so.

Phone and or email your MPP. Ask them to ensure:

  1. Both occupational health & safety and employment standards are modernized to protect the rights of low-wage migrant workers.
  2. Random spot-checks at farm sites and employer-provided accommodations.
  3. Access to provincial health insurance on arrival, stopping the practice of medical repatriations whereby sick and injured  migrants are sent home, and ending discriminatory workers compensation practises that deny migrant workers equal access to benefits.