OPP accused of racially profiling Caribbean migrant workers

The Ontario Human Rights Code is a provincial law that gives everybody equal rights and opportunities without discrimination in specific social areas such as jobs, housing, services, facilities, and contracts or agreements. The Code’s goal is to prevent discrimination and harassment because of race, sex, disability, and age, to name a few of the fifteen grounds. All other Ontario laws must agree with the Code.

OPP accused of racially profiling Caribbean migrant workers

Postby Thomas » Fri Dec 13, 2013 3:28 am

Justicia for Migrant Workers claims about 100 black men swabbed for DNA in sex assault investigation

CBC News Posted: Dec 12, 2013 3:56 PM ET Last Updated: Dec 12, 2013 5:55 PM ET

A group that advocates for the rights of migrant workers alleges the Ontario Provincial Police engaged in racial profiling when its officers took DNA samples from about 100 Caribbean migrant workers.

Justicia for Migrant Workers submitted a complaint to Office of the Independent Police Review Director on Thursday.

In October, an alleged sexual assault occurred, reportedly by a migrant worker, in Vienna, Ont., near Tillsonburg.

Police asked dozens of migrant workers for DNA samples, but not from people who matched the specific suspect description, the advocacy group claims.

The group's spokesman, Chris Ramsaroop, said the suspect was originally described as a black male in his mid to late 20s, 5-11 and muscular.

Ramsaroop said police then tested males between 21 and 61 years old, standing between five feet and 6-5 and weighing between 130 and 310 pounds.

"From talking to the workers, the only characteristic that they decided to do and engage in the volunteer — quote, unquote volunteer — sweep was around racial characteristics," Ramsaroop said.

Lenard Sylvester was one of the workers who voluntarily gave a DNA sample. He thought it was odd for the police to ask him, considering he was much shorter than the suspect police were seeking.

"To me it felt strange, knowing that they had they had a total description of who they're looking for. Colour, height, probably a little bit of the language, too," said the native of Trinidad. "And still they were having everybody doing the DNA testing and requesting it and all that. And they made it look like a show of force."

Police stand by their investigative tactics in the case.

Last week, senior officers announced that DNA evidence had helped lead to the arrest of a migrant worker in the area.

"Criminals know no boundaries and our message today is very clear to them — neither do police," Insp. Dwight Peer said.

Sgt. Dave Rektor denied there was any racial profiling. He said investigators followed the evidence within the parameters of the law.

"We're confident in the investigative results and we stand by our investigation," Rektor said. "In this case here, it was a thorough and complete investigation and we stand behind that."

According to Ramsaroop, workers say they fear unjust prosecution in a foreign land.

Ramsaroop is also concerned about what happens to DNA samples that were not a match to the accused.

Rektor said those are destroyed by the centre of forensic science.

Sylvester said he'll be returning to work again from Trinidad next year, but his views of the police have changed.

"They'll have to show me down the road, probably next year or some time, that they're different," said Sylvester.

http://www.cbc.ca/news/canada/windsor/o ... -1.2461844
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Re: OPP accused of racially profiling Caribbean migrant work

Postby Thomas » Sat Dec 14, 2013 3:36 pm

OPP deny racial profiling in testing of migrant workers after attack on Elgin County woman

It was an arrest the OPP announced with pride.

Six weeks after a vicious sexual assault against a woman who’d been standing on her own front porch in rural Elgin County, the OPP charged a migrant farm worker with the crime.

But now police are being accused of racial profiling -- something they vehemently deny -- in the investigation that eventually led to the arrest.

A group that advocates for migrant workers said the OPP collected DNA evidence from dozens of black men -- all migrant farm workers in the overwhelmingly white Tillsonburg area -- though many didn’t match the description given by the victim.

“There was nothing connecting anything to the people besides the colour of their skin,” said Shane Martinez of the Toronto-based group called Justicia 4 Migrant Workers.

Though the suspect was originally described as being about 5’10” with a muscular build, police asked for voluntary DNA samples from men who varied in age from 20 to 61 and in weight from 130 pounds to 310 pounds, said Martinez. Officers did the interviews individually with suspects in police cruisers.

The organization filed a complaint with the Office of the Independent Police Review Director Thursday afternoon, Martinez said.

Aware of the accusations, a spokesperson said Thursday the OPP “does not conduct profiling which contravenes the Ontario Human Rights Code and the Charter of Rights.

“We conducted a professional and thorough investigation into the matter being talked about. There was an arrest,” said Sgt. Dave Rektor, adding the OPP had not been informed of a complaint by Thursday afternoon.

“We have to look at all of the evidence. We follow it, we take it where it leads us and lay the appropriate charges,” he said. “We deal with migrant workers. They help us, we help them and it is concerning these allegations have come forward,” he said.

Eventually, police charged a 35-year-old man named Henry Cooper with the assault.

http://www.lfpress.com/2013/12/13/opp-d ... unty-woman
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Re: OPP accused of racially profiling Caribbean migrant work

Postby Thomas » Mon Mar 03, 2014 11:26 am

OIPRD to review OPP practices for obtaining voluntary DNA samples in police investigations

TORONTO, March 3, 2014

TORONTO, March 3, 2014 /CNW/ - The Office of the Independent Police Review Director (OIPRD) is conducting a review of the Ontario Provincial Police (OPP) practices for obtaining voluntary DNA samples from specific groups of people during criminal investigations.

"Allegations that dozens of migrant workers who were asked to submit to DNA tests for a criminal investigation did not match the description of the suspect except for their dark skin colour, raises the spectre of racial profiling and Charter rights issues. I am undertaking a systemic review that will not only investigate the immediate issues raised, but also dig deeper to explore underlying causes and broader practices to determine whether systemic failings have occurred."
- Gerry McNeilly, Independent Police Review Director

The review will examine public complaints filed, and review and analyze evidence collected from OPP investigations, including audio and video recordings, photographs, documents, interviews and forensic evidence. The review will examine OPP policies, procedures and practices, training material and instruction, along with relevant case law, reports, reviews, articles, documents, research, data and practices from other jurisdictions. The review will also consider submissions from stakeholders and the public. A final report summarizing the findings of the review and outlining recommendations for the overall improvement of police practices will be released to the public.

The Police Services Act gives the Independent Police Review Director the power to examine and review issues of a systemic nature that are the subject of or give rise to public complaints. It also allows the Director to make recommendations regarding these issues to Ontario's Solicitor General, Attorney General, the OPP Commissioner, chiefs of police, police services boards and other persons or organizations, in order to enhance public confidence and trust in police and policing.

http://www.digitaljournal.com/pr/1768350
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Police watchdog investigates OPP over DNA testing

Postby Thomas » Mon Mar 03, 2014 3:50 pm

Ontario’s police watchdog has launched an investigation into the DNA sampling practices of the Ontario Provincial Police after a complaint alleging racial profiling in the case of “dozens” of migrant workers subject to testing because their skin colour matched the suspect’s description.

The review by the Office of the Independent Police Review Director will look at any and all complaints received, evidence in the case, police practices and relevant law to come up with recommendations for the force.

“Allegations that dozens of migrant workers who were asked to submit to DNA tests for a criminal investigation did not match the description of the suspect except for their dark skin colour raises the spectre of racial profiling and Charter rights issues,” said Gerry McNeilly, independent police review director, in a statement released Monday.

The review is systemic in nature, but connected to a case from the Tillsonburg area where as many as 100 migrant farm workers were asked to submit DNA samples in connection with a police search for the suspect in a violent sexual assault.

The group Justicia for Migrant Workers estimates 100 men gave DNA samples, 44 of whom they were able to identify. According to the complaint filed by the group, a woman in Bayham, Ont. told the OPP that she was sexually assaulted by a person on Oct. 19, 2013. The woman described the suspect as a muscular black male, between five-foot-ten and six feet tall, with no facial hair and in his mid-to-late 20s.

Justicia found that farm workers of all ages, weights and heights were asked by officers from the OPP Elgin County detachment to submit DNA samples, with the only common factor being their dark skin colour.

The OPP announced in December that the force arrested 35-year-old Henry Cooper, a migrant worker from Trinidad and Tobago. He was charged with sexual assault with a weapon, forcible confinement and uttering death threats. In a news conference announcing the arrest, the OPP said DNA evidence was key.

Cooper was not among those identified by Justicia as having submitted samples, outreach worker Chris Ramsaroop told the Star in 2013. It is not known if the accused voluntarily provided a DNA sample to police.

“I am undertaking a systemic review that will not only investigate the immediate issues raised, but also dig deeper to explore underlying causes and broader practices to determine whether systemic failings have occurred,” said McNeilly in the release.

OPP Commissioner Chris Lewis responded to the complaint after it was filed, saying, “As an organization, we do not permit our employees to engage in racial profiling.”

http://www.thestar.com/news/gta/2014/03 ... sting.html
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Profiling of seasonal workers by OPP to be investigated

Postby Thomas » Thu Mar 06, 2014 2:37 pm

A review is being launched into the OPP’s mass-collection of DNA samples from dozens of Caribbean and other seasonal workers while probing sexual assault allegations last summer at a farm near Tillsonburg.

A probe into the OPP is being welcomed by Justicia for Migrant Workers, a community group that filed a complaint following the collection of DNA from about 100 Black workers of all descriptions, even those who did not match the suspect.

The agricultural workers were subjected to DNA tests in the fields where they worked with others as police probed a woman’s allegations that she was sexually assaulted by a Black man at a home in Bayham, Ont., in October 2013.

The Office of the Independent Police Review Director (OIPRD) said they are looking into the allegations.

Director Gerry McNeilly, in a release, suggested officers of the OPP Elgin County Detachment may have been involved in racial profiling.

He said “dozens of migrant workers asked to submit to DNA tests for a criminal investigation did not match the description of the suspect except for their dark skin colour”.

It “raises the spectre of racial profiling and Charter rights issues”, McNeilly said, adding his office will “explore underlying causes and broader practices to determine whether systemic failings have occurred”.

Justicia had complained that Black workers of all ages, sizes and weight had to undergo the DNA tests, or they were made to feel guilty of a crime if they refused.

“We welcome the OIPRD’s decision to conduct a systemic review into the OPP’s racial profiling of migrant farm workers,” the group’s lawyer, Shane Martinez, told Share by email.

“This review has the potential to further expose the egregious police misconduct that was perpetrated during the DNA sweep last October,” he said.

Martinezalleges samples were taken only from Caribbean and Afro-Caribbean men. Many of the workers have been returning yearly to work at the same farms in Canada.

Henry Cooper, 35, a migrant worker from Trinidad & Tobago, has been charged with sexual assault with a weapon, forcible confinement and uttering death threats. He is before the courts.

The OIPRD vowed to get to the bottom of the allegations.

The Office, in the statement, said it will examine public complaints filed, and review and analyze evidence collected from OPP investigations, including audio and video recordings, photographs, documents, interviews and forensic evidence.

It will look at OPP policies, procedures and practices, training material and instruction, along with case law, reports, research, data and practices from other jurisdictions.

A review panel will decide whether to hear from stakeholders and the public and a report will be written of its findings and recommendations for the improvement of police practices.

The OIRPD can examine and review issues of a systemic nature that are the subject of public complaints. Its findings are circulated to Ontario’s Solicitor General, Attorney General, the OPP Commissioner, chiefs of police and police services boards.

http://sharenews.com/profiling-of-seaso ... estigated/
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Allegations of racial profiling of migrant workers troubling

Postby Thomas » Thu Jul 17, 2014 7:44 pm

Allegations of racial profiling of migrant workers troubling: OHRC

TORONTO, July 17, 2014 /CNW/ - The Ontario Human Rights Commission (OHRC) took another step to eliminate racial profiling in Ontario by speaking out in the Office of the Independent Police Review Director (OIPRD) systemic review of the OPP practices for obtaining voluntary DNA samples. The OHRC is troubled by allegations that the Ontario Provincial Police (OPP) engaged in racial profiling when requesting DNA samples from migrant workers near Vienna, Ontario as part of a sexual assault investigation in October and November 2013.

"Racial profiling in any form causes great harm to individuals and in many cases entire communities. We will continue to speak out when we see it happening anywhere in Ontario," said OHRC Chief Commissioner Barbara Hall.

In December 2013, "Justicia for Migrant Workers" (J4MW), a non-profit group that promotes the rights of migrant farm workers, filed a complaint with the OIPRD alleging that the police collected DNA samples from approximately 100 "Indo and Afro-Caribbean" male migrant workers who did not match the suspect description apart from their dark skin colour. On March 3, 2014, the OIPRD announced that it was conducting a systemic review of the OPP's practices for obtaining voluntary DNA samples from specific groups. Racial profiling is a key allegation in J4MW's complaint, and a key component of the OIPRD's review.

The OHRC is concerned that the allegations are consistent with racial profiling, and has delivered a submission to the OIPRD sharing its expertise in racial discrimination and profiling. In particular, the OHRC is concerned that:

    The workers were targeted mainly because of race and stereotypes that Black men and migrant workers are prone to criminal behaviour.
    The requests were coercive, as migrant workers are particularly vulnerable and rarely seek to assert their rights for fear of being sent home.
    The OPP practice of seeking voluntary DNA samples in investigations has a disproportionate impact on racialized groups and marginalized communities.

Racial profiling is prohibited under Ontario's Human Rights Code but remains a daily reality for Aboriginal Peoples and members of racialized, particularly Black, communities in Canada. The OHRC continues to hear about racial profiling that includes unreasonable questioning, requests for identification, retaining personal information, intimidation, searches, aggression – and now, potentially, DNA sampling.

The OHRC has been involved in many cases addressing racial profiling, as well as partnering with various police services and boards in Ontario, including a multi-year Human Rights Project Charter with the Toronto Police Service, and similar ongoing partnerships with the Windsor Police Service and Ontario Police College. These efforts aim to embed human rights in all aspects of operations so that police services can meet the changing needs of an increasingly diverse population.

SOURCE Ontario Human Rights Commission

http://www.digitaljournal.com/pr/2061210
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Re: OPP accused of racially profiling Caribbean migrant work

Postby Thomas » Thu Jul 17, 2014 7:46 pm

OHRC Troubled By Accusations Of Racial Profiling In Vienna Sexual Assault Case

The Ontario Human Rights Commission says it has expressed concerns about alleged racial profiling by the OPP to the Office of the Independent Police Review Director.

The OIPRD is currently reviewing the OPP’s practices for obtaining voluntary DNA samples from specific groups in the wake of racial profiling accusations stemming from a sexual assault investigation in the village of Vienna in Elgin County.

The OHRC announced Thursday that it finds the claims troubling and it shared its concerns with the OIPRD.

On October 19th, 2013 a woman was out on her porch around 9:00 p.m. when the OPP said she was approached by a complete stranger who forced her inside the home. Once inside, police allege the woman was sexually assaulted by her attacker, who left immediately afterwards.

The victim was treated for minor injuries at St. Thomas Elgin General Hospital and was released.

On November 30th, Elgin County OPP arrested 35-year-old Henry Cooper of St. Mary’s Village in Trinidad and Tobago on Saturday, November 30th in connection with the case.

At the time, officers said they used DNA to link Cooper to the crime. In the weeks that would follow, the way that DNA was collected would come under scrutiny.

Justicia for Migrant Workers, or J4MW, accused the OPP of racially profiling migrant workers in the area during their investigation by collecting information from roughly 100 people.

“OPP conducted its investigation with what appears to be a total disregard for the suspect description it issued. DNA samples were taken from 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 310lbs,” a spokesperson said in December 2013.

At the time of the assault, the OPP publicly identified the suspect as “a black man in his mid-to-late-20′s, between 5’10 and 6′ tall with a muscular build, with no facial hair.”

The OPP has flatly denied the accusations.

“The OPP does not condone any form of profiling,” Sgt. Dave Rektor told AM980 when the claims came to light in December. “It’s contrary to the Ontario Human Rights Code and the Canadian Charter of Rights. OPP officers are trained to look at characteristics, behaviours and evidence that can be demonstrated to the relevant criminal behaviour and then if a charge is warranted, it’s laid.”

“I have to reiterate, the OPP does not condone any form of racial profiling and it’s illegal.”

“The OPP investigation into this matter was professional and thorough and ultimately resulted in the arrest of an accused who is before the courts,” Rektor said.

J4MW brought its concerns to the Ontario Human Rights Commission and now that body has spoken out.

“Racial profiling in any form causes great harm to individuals and in many cases entire communities. We will continue to speak out when we see it happening anywhere in Ontario,” said OHRC Chief Commissioner Barbara Hall in a release on Thursday.

The OHRC says it’s concerned that the allegations are consistent with racial profiling and is particularly concerned that the workers were targeted mainly because of race and stereotypes that black men and migrant workers are prone to criminal behaviour. The OHRC says it also has concerns that the OPP’s requests were coercive and that the OPP’s practice of seeking voluntary DNA samples in investigations has a disproportionate impact on racialized groups and marginalized communities.

http://www.am980.ca/2014/07/17/22858/
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Ontario police need better policies for collection of DNA

Postby Thomas » Wed Jul 13, 2016 2:39 pm

Report says Ontario police need better policies for mass collection of DNA samples

A new report by Ontario’s police watchdog body is calling for police services in the province to adopt new policies around the collection of DNA during investigations.

The report was released Tuesday by Independent Police Review Director Gerry McNeilly, who launched a review of police practices around DNA back in March following a complaint about the mass collection of DNA samples from a group of around 100 migrant workers as part of a 2013 OPP investigation into a violent sexual assault in Elgin County.

In that case, a migrant worker from Trinidad was eventually charged and sentenced to seven years in prison after he pleaded guilty to sexual assault with a weapon, forcible confinement and uttering death threats.

However as part of the investigation, police requested DNA samples from virtually every migrant worker in the vicinity – all of them men of colour, raising questions about police profiling and discriminatory practices.

“While I am satisfied that the OPP investigation was not motivated by racial prejudice, the nature and scope of the DNA canvass was overly broad and certainly had an impact on the migrant workers’ sense of vulnerability, lack of security and fairness,” McNeilly said in a statement Tuesday. “A more focused DNA canvass could have reduced concerns about racial profiling.”

The report found that the OPP failed to recognize the vulnerabilities of the migrant workers who were targeted and how that vulnerability affected their consent to give DNA samples. The OPP also failed to make sure that the decision to give or not give samples remained private, particularly from their employer, and didn’t properly explain the destruction process to those who were asked to give samples, the report found.

Going forward, the report recommends that OPP and other police services in the province develop a policy to govern how and when DNA sweeps are conducted. The report also recommends a model for a policy that is consistent with Canadian human rights regulations and sensitivity around vulnerable groups and perceptions of stereotyping.

However McNeilly ‘s report was met with a cold reception Tuesday by the advocacy group that filed the original complaint and felt the report didn’t go far enough.

“We’re extremely angry, we’re disappointed, we’re also frustrated,” Chris Ramsaroop of Justice for Migrant workers told CP24. “This report basically protects the thin blue line. It reinforces the racial harassment, intimidation and humiliation that migrant workers will continue to face across Ontario and across Canada through police actions and police intimidation tactics.

“Right now we’re talking about migrant workers, but all vulnerable communities have to be concerned about infringement of their rights because of this support of DNA practices and DNA sweeps.”

Speaking at a news conference, McNeilly said the purpose of the report was not to identify misconduct among individuals, but to review systemic practices around DNA collection.

While McNeilly’s report found problems with the DNA collection practices in the OPP investigation, he noted that the suspect description and circumstances of the case gave investigators “ample grounds to believe that the perpetrator was one of the local migrant workers of colour.” He also noted that there was urgency to the work as well, with a number of the workers scheduled to soon leave the country at the time of the investigation.

The Office of the Independent Police Review Director (OIPRD) is responsible for receiving, managing and overseeing all public complaints about the police in Ontario.

http://toronto.ctvnews.ca/report-says-o ... -1.2983631
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Police need clear rules on DNA sampling

Postby Thomas » Wed Jul 13, 2016 2:42 pm

Police need clear rules on DNA sampling, review concludes

Police were “overly broad” when they collected DNA samples from 100 migrant workers in Elgin County following a 2013 sex assault, the Office of the Independent Police Review Director said Tuesday.

And while Gerry McNeilly said the practice fell short of racial profiling, the independent police review director said the DNA canvassing “certainly had an impact on migrant workers’ sense of vulnerability.”

Following an investigation into the incident, the OIPRD is calling for a new and “highly public” policy governing how DNA canvassing occurs within the Ontario police system.

There were calls of “shame” in the room as McNeilly explained his findings at a news conference. “This is racism, Gerry. You’re perpetuating racism,” a man in the room shouted.

Dozens of migrant workers voluntarily gave DNA samples to investigators, although many of them did not fit the description of the suspect other than for the colour of their skin. Police later arrested a suspect in connection to the incident.

McNeilly said the Elgin County OPP failed to recognize whether the migrant workers offering DNA samples were truly consenting to the practice. They also failed to make sure the decisions made by employees in regards to the DNA canvassing were kept private from their employers and didn't explain if and how the DNA samples would be destroyed.

McNeilly's recommendations for new policy planks include making sure the OPP develops an over-arching policy to govern how and when DNA sweeps are conducted, and being transparent about how and when DNA samples are destroyed.

DNA canvasses must be conducted in compliance with the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code and the Criminal Code, McNeilly said in his summary. DNA canvassing that relies on stereotypes about race, colour, ethnicity, ancestry, religion or place of origin – rather than on reasonable suspicion – is unlawful, he wrote.

“Some may focus, whether in agreement of disagreement, on my finding that the OPP officers were not motivated by racial prejudice or guided by stereotypical assumptions about persons of colour or migrant workers. Others may focus on my finding that the decision to seek DNA samples from all migrant workers of colour, regardless of their physical characteristics, could well have had an impact on the migrant workers' sense of vulnerability, lack of security and fairness,” McNeilly wrote in his executive summary report, Casting the Net: A Review of Ontario Provincial Police Practices for DNA Canvasses.

“Both perspectives have validity. But ultimately, the findings give context to important recommendations designed to promote effective, bias-free policing and enhance police-community relations, particularly with those who are vulnerable. I believe that is the common goal of every stakeholder who participated in this systemic review. And for that, I am grateful,” he wrote.

While conducting the review, the OIPRD interviewed 10 officers from Elgin County OPP, civilian witnesses and 32 of the migrant workers.

It also reviewed officers’ notes, statements, meeting minutes, audio and video of interview recordings, photos, forensic evidence and police policies.

Workers from Tillsonburg, Ont. were subjected to a DNA testing sweep in connection to a violent sexual assault, even though for many their only similarity to the suspect’s description was skin colour.

Men whose characteristics differed widely from the suspect’s description were asked to submit to a DNA test.

Justicia for Migrant Workers, a group that found and interviewed 44 of the 100 people who voluntarily gave samples, learned that roughly half of those they spoke to were shorter than the specified height of the suspect, and about half were older than 41, when the suspect was said to be in his 20s.

The OPP later arrested a man who didn’t appear to be one of the 100 migrant workers asked to voluntarily provide a DNA sample to police, according to Justicia.

At the time of the review’s announcement, then-OPP commissioner Chris Lewis responded to the complaint, saying, “As an organization, we do not permit our employees to engage in racial profiling.”

A spokesman for the OPP said in 2014 the force would co-operate with the review and that they were confident in their investigative practices.

The OIPRD is responsible for conducting systemic reviews of police practices and following up on individual complaints about police conduct, policy and service issues.

Past systemic reviews looked at how police services handle mental illness among their ranks, and the policing of the G20 Summit in 2010.

https://www.thestar.com/news/crime/2016 ... ludes.html
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Immigration system under the lens in precedent-setting racia

Postby Thomas » Thu Nov 25, 2021 5:56 pm

Immigration system under the lens in precedent-setting racial profiling case

A group of migrant farm workers has brought forward a racial discrimination case to the Ontario Human Rights Tribunal, with far-reaching implications for Canada’s temporary foreign worker program and immigration system.

At a virtual hearing on Monday, the lawyer representing 54 farm workers – all either from Jamaica or Trinidad – argued his clients were racially profiled by the Ontario Provincial Police (OPP) during an investigation in October of 2013 in Bayham, Ont.

During his opening statements, Shane Martinez said a “DNA sweep” was conducted in which DNA samples were collected from the farm workers en masse despite all fitting various physical descriptions that differed from how the witness had described the suspect. He said they were “targeted…in a way which discriminated against them because of their race, national or ethnic origin, citizenship and or colour, contrary to section one of the Human Rights Code.”

“Early on in that investigation, (OPP) received a very specific description of the suspect,” Martinez said. “However, despite this description, what unfolded was an investigation where all migrant farm workers were retargeted and treated as potential suspects.”

The samples were collected during an investigation into a sexual assault that occurred in Elgin, near the Bayham. The victim had described the assailant as “about six feet” but definitely taller than herself, according to Detective Superintendent Karen Gonneau’s testimony, who collected the samples at the time. She had also said he was muscular, had a low, raspy voice, was wearing a gray hoodie, workstyle pants and was brandishing a silver knife.

That suspect was eventually caught and sentenced to seven years on top of time served.

Still, Gonneau said, there was “nothing distinguishing or helpful” in the witness’ description.

During the hearing, it was heard the witness said that because he was Black, she thought he was a farm worker. Farm workers are regularly seen around that area.

During the investigation, the police collected samples from 96 farm workers in total, according to Chris Ramsaroop, from Justice for Migrant Workers, the organization that has helped advocate for the farm workers. He was also an observer at the hearing.

Martinez is basing his case on the fact that the witness description of the suspect, which included a police composite sketch portrait with an overall accuracy of seven out of 10, was ignored. Martinez says the evidence will “show a clear and systematic process” of racial profiling from the OPP against a “large group of people.”

During Monday’s hearing, Martinez repeatedly asked Gonneau why she hadn’t made any mention in her notes that there were any discrepancies or concerns about the reliability of the witness’ description of the suspect.

Gonneau insisted even though she understood traumatic experiences may affect people’s ability to recollect events, she just “wouldn’t” call it “unreliable.”

“I can’t think that I would ever put that in my notes or in a statement. It was more just a knowledge of, you know, what…the impacts (of trauma) could be here, but you work with what you have and try to move forward.”

The lawyer representing the OPP, Christopher Diana, said their job will be to show that the suspect description was, in fact, a “general description.” He says given the lack of any certain identification or description, the DNA canvas was not only consented to voluntarily by the farm workers but was “absolutely crucial.”

He stressed that it is important to view the case through the context of the “frailties of identification of evidence.”

“This is a context where there are few investigative leads…(and) a potential threat to other members of the public, and public safety is very much the legal issue before you,” he said during opening statements.

“There was a high quality criminal investigation with a successful result.”

Leon Logan, the main applicant among the 54 farm workers, testified during the hearing that he had consented to the DNA swab out of fears of losing his job and being sent back home. In an audio recording submitted as evidence and played at the hearing by Diana, Logan can be heard consenting to providing the sample.

At the hearing, Logan said he had concerns about the questions and about giving a DNA sample at the time but didn’t say anything “because (he) was afraid” of what his employer would do if he didn’t comply.

While the case is about determining whether police racially profiled a group of workers, the decision and evidence that will come to light at the hearing will reverberate throughout the industry. Canada’s immigration system itself will come under scrutiny as the Seasonal Agricultural Worker Program (SAWP), a stream of the Foreign Worker Program, and aspects like closed work permits, are dissected.

“It’s one of the first cases to examine the intersection of policing and the plight of migrant workers in Canada,” Ramsaroop told NCM in a phone interview following the hearing.

“When we think about policing, and particularly racist policing, usually we consider this an urban phenomenon, and this case is going to highlight the particular vulnerabilities of racialized people…in rural communities.”

The “plight” of temporary foreign workers is nothing new, but it only comes on people’s radars sporadically, when the media focuses on some industry scandal.

But the slave-like conditions in which farm workers toil away with the hope of gaining permanent residence and/or reuniting with their families has been known to advocates and researchers for a long time.

The inherent power imbalance that exists between temporary workers and their employers is the reason many workers like Logan say they feel they have no choice but to accept precarious working and living conditions, low pay, exploitative employers and other abuses.

According to Dr. Jenna Hennebry, associate professor at Wilfried University and the expert witness at Monday’s hearing, foreign farm workers routinely accept exploitative working conditions due to fear of being repatriated and not being allowed back into the country to work. According to her research, which includes a survey of 600 farm workers, 44.5 per cent responded that they would go to work despite being ill for fear of being terminated.

“The idea is that you can’t say no to an employer, you can’t walk away, you can’t assert rights with an employer because of that power imbalance – whether it’s to seek legal advice, or whether it’s to seek medical care or whether it’s to refuse a DNA sample,” Hennebry said during Diana’s cross examination.

At the hearing, Diana suggested to Logan that the idea that he and the other farm workers had been discriminated against had been suggested to him by Ramsaroop first.

“Is it fair to say that, up to that point, you didn’t have any concerns at all?” Diana asks.

“I had concerns about it,” Logan answered. “I feel away.”

After the hearing, Ramsaroop told NCM many of the workers involved in the case knew him personally because, for the “last couple of years,” he had been visiting the farms on the weekends. They developed trust, he says.

That’s what prompted some workers to take him aside the weekend after the OPP had done the DNA sweep to tell him about it.

“When the workers met with us, they were angry, they were humiliated, they were embarrassed this had happened to them,” he says.

“They wanted this addressed. They wanted the people who did this to be held accountable.”

Ramsaroop says he hopes the case will help make the issue more prominent in Canadians’ minds, particularly if the opportunity to ramp up organizing and the mobilization of workers can be seized.

“It’s part of a larger puzzle. It’s part of a larger picture of different forms of organizing, of adding advocacy, pushing the envelope. So, we have to look at this court case as advancing one component of this larger struggle.”

The hearing is expected to take about seven days.

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Human rights hearing on allegations of racial profiling of m

Postby Thomas » Thu Nov 25, 2021 6:00 pm

Human rights hearing on allegations of racial profiling of migrant workers caught in mass DNA sweep begins

54 out of 96 workers swabbed in 2013 will be heard in a collective case

The Human Rights Tribunal of Ontario will hear Monday from migrant workers who allege they were racially targeted by the Ontario Provincial Police (OPP) as part of a DNA sweep in connection to a 2013 sexual assault investigation.

The 54 applicants argue that the indiscriminate manner in which the DNA sweep was conducted violated their rights under Ontario's Human Rights Code.

The OPP swabbed 96 Black and brown migrant farm workers from mostly Caribbean countries working on at least five farms in Elgin County, in southwestern Ontario, in 2013 as officers searched for a suspect in a sexual assault.

But human rights lawyer Shane Martínez, who is representing the migrant workers pro bono, says most workers who were swabbed did not fit the physical description of the suspect except for the colour of their skin.

"Workers were West Indian, workers were black from Jamaica, workers with long dreadlocks, ones who were bald — one worker had gold teeth," Martínez said. "They were as diverse a group as you could potentially imagine."

"When they tried to provide explanations as to [where they were] and they provided alibis, the police completely disregarded those and wanted nothing more than to collect their DNA because of how they looked."

The suspect, meanwhile, was described as between 5-10 and six feet tall, black, with no facial hair and a low voice that might have a Jamaican accent.

The sexual assault survivor told police her attacker was muscular and possibly in his mid-to-late 20s. She said she was confident the perpetrator was a migrant worker and believed she'd seen him near her home in rural southwestern Ontario.

'I didn't want to risk my livelihood'

Dwayne Henry recalls being asked to provide a DNA swab eight years ago.

Hailing from Jamaica, Henry says while he was nervous, he initially felt assured when the police approached him.

"We were scared, but knowing this was Canada, this was the first world, I thought I was doing something keeping with the law," said Henry. "We know what police can do back in our country."

Henry, who now lives in Stratford, Ont., said he was with his girlfriend at the time of the assault and had dreadlocks that did not match the suspect's description. But he says that made no difference in the investigation.

Now that he's a permanent resident, Henry says he could clearly see that both his employer and the police pressured him to comply.

"I think at that time they were taking advantage of us just because we were migrant workers," said Henry. "We were scared that we were going to be sent back home. This is the place [where we are the] breadwinner for our family, you know?"

Henry says the investigation continues to follow him and his reputation, even back in his home country. That's why he became part of the human rights claim.

"To this day, it still has a dent in my life."

Samples didn't match DNA from scene

Police would later tell an independent review into what happened in 2013 that due to the seasonal agricultural worker program, they felt they had to act fast to find the perpetrator before he left the country.

On Nov. 30, 2013, Henry Cooper, a migrant farm worker from Trinidad and Tobago was arrested after suspicions around his unwillingness to provide a DNA swab and conversations with his employer led to the OPP surveilling him in hopes of getting a discarded sample of his DNA.

He eventually pleaded guilty to sexual assault with a weapon, forcible confinement and uttering death threats and was sentenced to seven years in prison.

In 2016, the Office of the Independent Police Review Director (OIPRD) released its report based on a complaint put forth by Justicia for Migrant Workers, a volunteer-run collective that advocates for the rights of migrant workers.

At least 11 other stakeholders made submissions to be considered during the review, including the Canadian Civil Liberties Association and the Ontario Human Rights Commission.

The report found that while the investigation failed to "recognize the particular vulnerabilities of the migrant worker community targeted by the DNA canvass," it was not motivated by racial prejudice.

It also questioned whether the "consents obtained were truly informed and voluntary."

In his report, Gerry McNeilly, the police review director at the time, recommended the OPP adopt a policy on canvassing for DNA that could also be used by other police services.

When asked if the OPP had implemented this recommendation — and the report's six others, which included training for officers on DNA canvassing and communication surrounding the collection and destruction of DNA — OPP spokesperson Bill Dickson said it "reviewed [the report's] contents and continues to address the recommendations that were made in the OIPRD review."

When pressed about what that meant, he replied as follows: "Any further comment would be inappropriate in order to preserve the integrity of the Human Rights Tribunal of Ontario hearing."

Martínez says despite acknowledgement of the OPP's shortcomings, the independent police review did not match the standards of a human rights tribunal in determining racial discrimination — which is one of the reasons the workers moved ahead with their claim.

All of the officers interviewed by the independent police review director said they had told the migrant workers that their decision to participate in the DNA swabbing was voluntary — and that the decision would be kept confidential from their employers so as not to affect their job security.

But the report found the officers failed to do that.

After learning that a few workers had refused to do the DNA test, the main employer "made the decision that none of these men would be invited back to work for our company in the future unless they consented to take [the] test," the report found.

Case delayed for years

The application to the Human Rights Tribunal of Ontario was filed in 2015.

While the COVID-19 pandemic created some delay in getting to a hearing, Martínez alleges the OPP also tried to have the case quashed.

Martínez says the OPP tried to have the application dismissed because it was filed two years after the DNA swab instead of within the typical one-year deadline.

But he said a pre-tribunal hearing found that the filing delay was "sustained in good faith" and it noted that the applicants are part of a vulnerable population.

A class-action lawsuit on behalf of anyone whose DNA was taken by the OPP in relation to these types of investigations has also been certified.

The lawsuit alleges the Centre of Forensic Sciences has retained DNA profiles in a database, even though the material gathered did not match that of the suspect in the criminal investigation.

Although the 2016 independent police review states that all of the migrant workers' samples were destroyed in 2014, a spokesperson for Justicia for Migrant Workers says the workers don't have faith the samples and their profiles are gone — and were never made aware their DNA profiles would be entered into a database.

"These are widespread issues of privacy, of privacy infringement, of racial injustice that I think all of us in the community need to be concerned [about]," said Chris Ramsaroop. This is a systemic practice and policing that's flawed."

Fighting for recognition

According to Justicia for Migrant Workers, the case is the first human rights hearing of its kind in Canada to examine allegations of systemic racial profiling and discrimination by the police of migrant farm workers.

"Many of the workers wanted to just basically put this incident past them, and there were other workers who were still fearful of repatriation," Ramsaroop said. "But the fact that we had 54 of the 96 workers take part in this I think is phenomenal. This speaks to the level of outrage that exists within this community."

Henry says he's fighting for recognition, compensation and justice so that other people don't have to go through something similar.

"We are taking a stand to protect the rights of migrant workers who are coming," Henry said. "I'm doing this not just because of us; I'm doing this for other migrant workers also."

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‘The whole process made me feel sad, defeated and humiliated

Postby Thomas » Thu Nov 25, 2021 6:01 pm

‘The whole process made me feel sad, defeated and humiliated,’ Jamaican man tells rights tribunal in DNA-sweep case

Leon Logan was outside working at an apple farm in Vienna, Ont., when his boss showed up and told Logan and the other migrant workers to follow him back to his car.

The men were taken to a different part of the farm, where a fleet of Ontario Provincial Police vehicles sat waiting for them.

They were told a woman had been raped at her home in nearby Bayham, three days earlier, and that they all needed to take a DNA test to clear their names.

The officers led Logan — a Jamaican in Canada under the seasonal agricultural worker program — to a van and asked him to provide “informed consent” before he was taken to another police vehicle to give the swab.

“I didn’t want to do it,” the now-37-year-old father of two told a human rights tribunal Monday, eight years after that DNA sweep in October 2013.

He was testifying at the first day of a virtual hearing before Human Rights Tribunal of Ontario adjudicator Marla Burstyn.

Logan is the lead complainant, representing a group of 54 migrant workers from Jamaica and Trinidad. They’re accusing the OPP of unfairly targeting them in the DNA sweep, allegedly based on their race, skin colour, ethnicity and place of origin.

Logan was told by the OPP he was “not pressured” and under “no obligation” to offer the sample, but he said Monday he felt he had no choice.

He said he didn’t know what consequences he might face if he refused, given his precarious immigration status in the country.

“The whole process made me feel sad, defeated and humiliated.”

The police action that day worked, in the eyes of law enforcement.

Christopher Diana, lawyer for the solicitor general, said the voluntary DNA canvass was crucial in the arrest — and later conviction — of Henry Cooper, who was then a migrant worker from Trinidad and Tobago in his mid-30s. He received a seven-year sentence.

The complainants in the human rights case, however, claim they were racially profiled even though they didn’t fit the descriptions of the suspect, who was described as a Black male, muscular, between five-foot-10 and six-feet tall, in his mid-to-late 20s, with no facial hair.

“What unfolded was an investigation where all migrant farm workers were targeted and treated as potential suspects,” said Shane Martinez, lawyer for Logan and the other workers, in his opening submission.

“The suspect description was effectively disregarded and the respondent instead focused on Black and brown migrant farmworkers, regardless of whether or not they bore any meaningful resemblance to the suspect.”

The tribunal, he argued, only needs to find the workers were targeted and placed under “adverse treatment” because of those shared traits. He said the onus is on the defence to provide a “non-discriminatory explanation” to justify the DNA sweep.

“It is sufficient for the applicant to prove that one or more of the prohibited grounds simply was a factor,” Martinez said. “There is no need to prove intention to discriminate.”

Government lawyer Diana opened his case by painting a picture of what happened the night of the sexual attack, detailing the trauma and physical injuries the victim suffered: black eye, injured jaw, injured tailbone and bruises.

He said police had only a general description of the perpetrator and few investigative leads.

“The context matters. The facts matter. The evidence before you matter,” Diana told the tribunal.

“The evidence will show that the OPP did not breach the human rights code. The OPP did not discriminate against the applicant, Leon Logan. The OPP did not engage in racial profiling. The OPP did not act on stereotypes or assumptions.”

Diana said witnesses’ descriptions of suspects cannot always be trusted and, in this case, police limited the DNA canvass to the one farm in the proximity of the victim’s residence.

During the cross-examination of Logan, who no longer works in Canada, Diana played a taped recording between the officer and the complainant, detailing the instructions and options given by the officers. Logan was also offered the opportunity to call a legal aid lawyer for advice though he didn’t have a phone and wasn’t offered one.

Logan testified he signed the consent and didn’t raise any concerns to the officer because he was afraid of what would happen to his employment in Canada if he declined.

“It’s not voluntary, sir,” Logan told the tribunal.

“They didn’t tell you that you had to do it, right? You understood what they’re saying, right?” asked Diana.

“Yes, sir,” Logan replied.

“They didn’t threaten you in any way,” said Diana. “They didn’t say you would lose your job if you didn’t give a sample.”

“No, sir,” Logan said.

Earlier Monday, Wilfrid Laurier University professor Jenna Hennebry testified that there’s a power imbalance built into the seasonal agricultural worker program as migrants are tied to a particular employer. She said workers can be fired and sent back to their home country if they don’t comply with employers’ demands.

Diana asked if that power imbalance might also apply to this human rights case between the workers and police authorities.

“Would you go so far to say that a migrant farm worker could never really give free and informed consent to a request for a DNA sample?” Diana asked.

“It’s very challenging to create conditions that would enable free and informed consent. Yes, I think that would be very, very difficult,” said Hennebry, who has done extensive research on Canada’s migrant worker programs for two decades.

The hearing was adjourned and is expected to last seven days.

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Allegations of OPP racially profiling migrant workers in 201

Postby Thomas » Thu Nov 25, 2021 6:16 pm

Allegations of OPP racially profiling migrant workers in 2013 investigation now before human rights tribunal

Proceedings are now underway as the Human Rights Tribunal of Ontario (HRTO) works to determine whether dozens of migrant workers were racially profiled by Ontario Provincial Police (OPP) during a sexual assault investigation in 2013.

The allegation stems from a DNA sweep the OPP had conducted on nearly 100 migrant workers in relation to a mid-October, 2013, sexual assault in Bayham, Ont.

Henry Cooper, a migrant worker from Trinidiad, was eventually arrested after refusing to provide a DNA sample. He pleaded guilty to sexual assault with a weapon, forcible confinement and uttering death threats and was sentenced to seven years in prison.

Of the nearly 100 workers who had their DNA sampled, 54 are now bringing the allegations before the HRTO, claiming they were targeted based on their race, country of origin and their status as migrant workers.

On Monday, the HTRO opened its hearing on the matter.

The lead applicant in the case is Leon Logan, one of the 54 migrant workers who had their DNA collected during the 2013 investigation.

The outcome of his case against the respondent, the OPP, will have an impact on the remaining 53 applications, with findings or remedies ordered as a result having the potential to apply to the other migrant workers’ applications.

In his opening submissions, Logan’s counsel, Shane Martinez, argued the OPP had disregarded the suspect description provided by the victim of the sexual assault.

He added that the migrant workers who were asked to provide DNA samples had a wide range of ages, heights and weights. Facial hair and other identifying features were also disregarded, Martinez added.

Matthew Horner, acting as counsel on behalf of the Ontario Human Rights Commission (OHRC), added that the OHRC endorses Martinez’s statement.

“The evidence you will hear in this application will show a clear and systematic process, adopted by the police, to identify and target a large group of vulnerable people for adverse treatment,” Horner said.

“The evidence will show that race, colour, place of origin were clearly factors, if not the factors, in the adverse treatment.”

Christopher Diana, who serves as counsel for the respondent, said in his opening submissions that “OPP investigators followed the evidence.”

“And in so doing, the OPP was able to arrest and convict the perpetrator of this violent offence only days before he flew back to the Caribbean. As you will see and hear in the evidence, the voluntary DNA canvass was absolutely crucial to this outcome,” Diana added.

Martinez then called on his first witness Dr. Jenna Hennebry, an associate dean, program coordinator and associate professor at Wilfred Laurier University with expertise in migrant worker rights.

Hennebry’s testimony surrounded the “systemic inequities” and the “vulnerabilities faced by the racialized workers” in the Seasonal Agricultural Worker Program (SAWP), which allows employers to hire migrant workers

She added that a “power imbalance” between employers and migrant workers leaves the latter group feeling like they cannot refuse a request to comply with law enforcement, tied to fear of losing employment.

“Under the current SAWP, it’s very challenging to create conditions that would enable free and informed consent,” Hennebry said.

This sentiment was echoed by Logan, the lead applicant in the case and one of 54 migrant workers who had their DNA sampled.

In his testimony, Logan said he didn’t want to provide a sample, but that he provided consent because he was worried about what his employer might do if he didn’t.

“The whole process made me feel a way. It made me feel sad, it made me feel defeated, it made me feel humiliated,” Logan told the hearing.

He later added that he felt he was being treated as a suspect “because of the colour of my skin and where I’m from.”

The final witness of the day was Det. Supt. Karen Gonneau, who was involved in the OPP investigation of the 2013 sexual assault.

Gonneau took notes of the victim’s initial interview with investigators, which had provided officers with a suspect description.

She notes that victim had provided descriptions of the suspect’s height, age, “very muscular” build, along with descriptions of his face, with Gonneau quoting the victim as saying the suspect had a “typical negro nose.”

The victim also told police the suspect was a migrant worker.

In his questioning of Gonneau, Martinez said the officer did not make note of any doubts or misgivings about the accuracy of the victim’s description.

As for the DNA sweep of nearly 100 workers, Gonneau said this was influenced by a threat to public safety and time constraints, with police worried that migrant workers may be leaving Canada within days as their seasonal contracts draw to a close.

“Understanding the circumstances under which the description was obtained, I think it would’ve been a misstep to stay so dedicated to that description when we really had nothing else that was going to help us,” Gonneau said.

Martinez is expected to continue his questioning of Gonneau as the hearing enters into its second day on Tuesday.

The HRTO has set aside seven days for the trial, all of which will be done virtually amid health protocols brought on by the COVID-19 pandemic.

The incident was previously explored by the Office of the Independent Police Review Director (OIPRD).

In his 2016 report, Gerry McNeilly, who was the head of the office at the time, found the OPP were not conducting racial profiling during the 2013 investigation.

He also said the incident exemplifies why the police force should create a policy on DNA canvassing.

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What's next in human-rights hearing over OPP's DNA sweep

Postby Thomas » Tue Dec 07, 2021 7:36 pm

What's next in human-rights hearing over OPP's DNA sweep

A date for final arguments is set in the human-rights tribunal hearing over a police DNA sweep that critics say unfairly criminalized local migrant workers but investigators argue helped solve a sexual assault

The Ontario Human Rights Tribunal last week heard the long-awaited case of 54 migrant farm workers who say they were racially profiled during a DNA canvass by Elgin OPP in its investigation of a sexual assault near London in 2013. Closing arguments are now set for Feb. 1.

Marla Burstyn, who is presiding over the hearing, will then decide whether the OPP discriminated against migrant farmworkers based on race or country of origin, said Shane Martinez, pro-bono counsel for the workers.

Martinez is seeking compensation for the workers and an order for policy and training changes that would ensure OPP officers understand the Human Rights Code and apply it in the community.

In October 2013, a woman was sexually assaulted at her home south of Tillsonburg, an area of Southwestern Ontario that greets seasonal farm workers each year.

The suspect was described as Black, five-foot-10 to six-feet tall and in his 20s. OPP Det.-Const. Karen Gonneau, who was involved in the investigation, told the hearing the victim described the attacker as having an accent she “thought was Jamaican,” and she suspected he was a migrant worker.

Investigators collected DNA samples from dozens of workers, ranging from five-foot-two to six-foot-six and 22 to 68 years old, at five nearby farms. One of those workers, Logan Leon, told the hearing he felt he couldn’t say no to the voluntary swab.

“If I said no, I don’t know what (would) happen,” he said, adding that the process made him feel “sad, defeated and humiliated.”

The crime happened in October of 2013, meaning most migrant workers were due to leave Canada soon – increasing the pressure on police, who at the hearing defended the DNA dragnet.

“If the process wouldn’t have been done, we wouldn’t have identified Mr. Cooper,” said a now-retired OPP detective, Andy Raffay.

He was referring to Henry Cooper, a migrant worker from Trinidad who refused to provide a sample in the initial sweep, raising police suspicions. Officers surreptitiously obtained a DNA sample from Cooper that matched a sample taken from a sexual assault kit. He later entered a guilty plea and was sentenced to seven years in prison.

But Martinez criticized the canvass of the racialized workers, and said that in larger urban centres, like Toronto, “if the police were to engage in conduct like that . . . there would be immediate outrage” over it.

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Human rights case against Ontario Provincial Police shows ho

Postby Thomas » Mon Dec 20, 2021 4:41 pm

Human rights case against Ontario Provincial Police shows how migrant workers are set up to be stereotyped

From the moment migrant farmworkers begin their journey in Canada, they are subjected to the systemic discrimination that Canada’s foreign work programs were built on.

At the end of November, the Human Rights Tribunal of Ontario heard the long-anticipated case against Ontario Provincial Police (OPP) who racially profiled 96 migrant farm workers by conducting a DNA canvass during their investigation of a sexual assault in Bayhem, Ontario in October 2013.

Fifty-four of the 96 migrant workers who were targeted are being represented by Shane Martinez before the tribunal.

The victim described the suspect as a Black male who was muscular, between 5’6” and 6’ tall, fairly dark, in his mid to late 20s, with no facial hair. She also stated that she thought he was a migrant farmworker who had a heavy accent that she thought was Jamaican.

Early in its investigation, the OPP decided it would conduct a DNA canvass of all migrant workers in the area, without knowing whether they had DNA evidence and without interviewing workers. This resulted in the DNA samples of 96 migrant farmworkers being taken, regardless of whether it was remotely possible for them to fit the description of the suspect. DNA samples were taken from Indo- and Afro-Caribbean men from Jamaica and Trinidad who ranged in age from 22 to 68, ranged in height from 5’2” to 6’6” tall, and ranged in weight from 110 to 328 lbs. The OPP’s investigation targeted migrant workers based on their skin colour, their race, their place of origin and their immigration status.

This was a flawed investigation driven by racial profiling, implicit bias and discriminatory practices that perpetuate entrenched stereotypes about migrant farmworkers. Two themes can be distilled from the human rights tribunal hearing: how the societal construction of race and the narrative surrounding migrant farmworkers is embedded in racialized police practices and how the OPP’s exploitation of the vulnerabilities of migrant farmworkers exposes the systemic issues with Canada’s Seasonal Agricultural Worker Program (SAWP).

Racialized policing based on assumptions and stereotypes

From the moment migrant farmworkers begin their journey in Canada, they are subjected to the systemic discrimination that Canada’s foreign work programs were built on.

The SAWP is a government-to-government agreement that is designed to exploit the labour of racialized persons from the Global South. The discrimination that is experienced by migrant workers impacts every aspect of their lives, from workplace abuse and inadequate living conditions to exclusions from employment standards and protections; the list goes on. Yet, the SAWP program is constructed to ensure that this intersectional discrimination remains hidden.

The narrative surrounding migrant farmworkers in Canada is dependent on social constructions of race, racism and difference.

From the outset, migrant workers are secluded from society as they live in employer-provided housing where they are under constant surveillance and are subject to deplorable living conditions. They are geographically segregated to rural areas, which limits their ability to form social bonds and connections in the community. Their economic and social mobility is constrained by the program because they are denied participation in social and political life and are restricted from full access to social services.

Migrant farmworkers are racially constructed through SAWP to ensure that they remain a segregated labour regime that is based on difference. The SAWP operates not only to ensure that migrant workers remain segregated from Canadian workers, but also divides workers based on their countries of origin by perpetuating discriminatory stereotypes based on race and nationality.

The socially constructed otherness of migrant farmworkers was apparent throughout the tribunal hearing. Martinez’s cross-examination of each police witness revealed that the OPP took DNA samples from migrant farmworkers regardless of whether they fit the description of the suspect.

Christopher Diana, the lawyer representing the OPP, argued that this investigation was not based on assumptions and stereotypes. In his opening statement he argued that: “[t]his is a context where there are few investigative leads…(and) a potential threat to other members of the public, and public safety is very much the legal issue before you.” Yet this narrative is premised on the stereotypes and assumptions that the OPP are attempting to dispel.

This narrative is consistent with the pervasive stereotypes about Black men and migrant workers as a threat, violent and prone to criminality. The OPP utilized stereotypes about migrant workers as a potential threat to public safety as justification for increased surveillance. Even worse, they used this narrative to justify the highly invasive practice of a DNA canvass that targeted all members of the migrant farmworker community.

The OPP investigation also reveals the differential treatment of white employers and workers and the migrant farmworkers of colour. The cross-examination of the officers revealed that they ignored the alibis of the migrant farmworkers. Yet, when engaging with a white employer they unequivocally accepted his alibi for a group of workers on the farm. The OPP also shared the composite sketch with white employers, whereas they did not share the composite sketch of the suspect with any migrant farmworker. Instead of using other investigative tools at their disposal, they relied on a rarely used and unregulated police practice that put an already vulnerable population in a highly invasive and coercive situation.

Vulnerabilities of workers

The precarious status of migrant farmworkers is embedded in an oppressive and discriminatory immigration system that creates their vulnerabilities.

The SAWP operates through temporary tied work permits. This means that each migrant farmworkers legal (yet temporary) status in Canada is contingent upon a formal employment agreement tied to a designated employer. Receiving a temporary permit, while highly coveted in sending countries, does not guarantee stable living conditions and wages for migrant workers.

The SAWP denies workers any right to permanent residency, while giving employers the power to determine if workers will be repatriated, deported, or if workers will be welcome back the next year.

This tied system is a mechanism of subordination and exploitation. It creates a systemic power imbalance and allows employers to exploit the migrant workers’ precarious status in Canada. It means that migrant workers are unable to leave their employment, or speak out about inadequate working and living conditions, without fear of losing their immigration status. This threat of repatriation and deportation is one of the main features of the SAWP that works to keep migrant farmworker voices silent.

The migrant farmworkers’ race, skin colour, place of origin and immigration status intersect to give rise to a particular vulnerability that was used by the OPP as a basis for its discriminatory DNA canvass. However, this is not an isolated incident. The OPP investigation reveals how race and racism operate in these institutionalized settings to reinforce the systemic power imbalances that are at the core of Canada’s temporary foreign worker programs.

Most people would not feel like they have the right to say no when police ask them for their DNA, regardless of whether they were asked for consent. For vulnerable populations, like migrant farmworkers, their interactions with police are dictated by the long history of police abuse against racialized persons. Therefore, there is a heightened risk that they will be subject to coercive situations that make it difficult for migrant workers to give informed and voluntary consent.

Leon Logan, the lead applicant representing the 54 migrant farmworkers, testified that he felt he had no choice to refuse the DNA sample: “[m]y concern is if I didn’t give that DNA sample that day, I would be out of a job the following season and wouldn’t have a chance to come back to Canada.”

This precarity was exacerbated by the important role that the employers played in orchestrating the DNA samples of the migrant farmworkers. The Office of the Independent Police Review Director’s report determined that the main employer of the migrant workers who were canvassed, “made the decision that none of these men would be invited back to work for our company in the future unless they consented to take [the] test.” The fear of repatriation and deportation was front of mind for many migrant workers whose DNA was taken.

The temporary status of migrant farmworkers was exploited by members of the OPP throughout their investigation. One of the recurring narratives provided by the OPP in its testimony was that officers were under pressure to conduct a quick investigation because the harvest season was ending. However, this was rebutted by Martinez numerous times, as it became clear that the OPP received guarantees from several white employers that they would inform the OPP if any migrant farmworker that worked for them was leaving Canada.

Further, almost all migrant farmworker contracts end on December 15 of each year, which gave the OPP over a month to conduct a lawful investigation. The vulnerable status of migrant farmworkers, whose temporariness in Canada is enacted by the state, was exploited by the police to justify the execution of a racially motivated DNA canvass.

This hearing is historic and precedent-setting because it is the first human rights case in Canada that examines allegations of systemic racial profiling, bias, and discrimination by the police against migrant farmworkers. It also presents the first opportunity for a tribunal to find that these systemic practices inform policing. The hearing is set to continue on February 1, 2022 for closing arguments.

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