Shane Martinez

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]

Good news on DNA class action certification

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Justicia for Migrant Workers (J4MW) applauds the work of Goldblatt Partners LLP in achieving certification of the Granger case as a class action.

On Thursday July 9th, 2020 the Superior Court of Justice for Ontario ruled that the class action can proceed to a hearing on its merits. In October and November 2013, the Ontario Provincial Police (OPP) conducted a DNA sweep targeting Caribbean migrant farm workers while searching for a suspect involved in a criminal investigation. The class action proceedings were initiated by migrant worker Mickey Granger regarding the permanent retention of his DNA and that of approximately 100 other migrant workers involved in the DNA sweep.

You can read more about the background info for this case here.

Instead of focusing their search on the specific suspect description, the OPP engaged in an extremely broad DNA sweep that included racialized migrant workers who clearly did not match the suspect profile. DNA samples were taken from approximately 100 Indo and Afro-Caribbean men whose ages ranged from 21 to 61, whose heights ranged from 5’0” to 6’5”, and whose body sizes ranged between 130 lbs to 310 lbs. Other identifying features (e.g. hair style) were also disregarded. Workers were targeted even though they did not fit the suspect description. A human rights complaint was filed for 54 migrant workers regarding how the DNA was collected by the OPP.

“This is a significant advance on behalf of the migrant farmworkers who were impacted by the OPP’s DNA sweep. J4MW will continue to advocate on behalf of 54 of these individuals in a concurrent proceeding at the Human Rights Tribunal of Ontario (HRTO) to ensure that the racial discrimination underlying this case is appropriately addressed,” says Justicia for Migrant Workers activist and lawyer Shane Martinez, who is representing the workers in the HRTO proceedings.

In an era of outcry over racist and racialized policing, J4MW will continue to fight against injustices that occur to migrant workers in rural communities. The lack of accountability and oversight are not only issues of concern in urban settings, but racial injustice is inherent to the structures that enable migrant workers to be employed in rural communities across Canada.

“J4MW will fight anywhere and everywhere that racialized policing is used to specifically target racialized working class communities,” says Gabriel Allahdua. “Whether it’s fought in the streets or the courts, J4MW continues to strongly condemn the practice of DNA sweeps, the invasive collection and retention practices and how it’s used to specifically target Black, Indigenous, Racialized and working class communities.”

The OPP targeted the migrant worker community of Bayham, Ontario because of their precarious immigration status. They also believed that no one would hold them accountable for their actions. They were wrong! No more DNA sweeps, End Racial profiling, end racist policing and end police brutality!