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.

Police ignored Ontario human rights code during migrant work

Postby Thomas » Fri Mar 04, 2022 6:54 am

Police ignored Ontario human rights code during migrant worker DNA sweep, lawyer argues

Almost 100 migrant workers were asked for their DNA even though most didn't match a suspect description

The Ontario Provincial Police showed a "complete disregard" for the province's human rights code when they conducted a broad DNA sweep of migrant workers in southwestern Ontario during a 2013 sexual assault investigation, a lawyer for the workers said during a hearing Tuesday.

"The ineffective and discriminatory targeting of Black and brown people shows a complete disregard for the code and an indifference to how this treatment affects members of a highly vulnerable, racialized community," said human rights lawyer Shane Martínez, who is representing 54 workers who are arguing that their rights were violated during the police investigation.

"No one is arguing that this was not a grave criminal offence that had occurred and it needed to be investigated. But the gravity of an offence is not a 'bypass the human rights code' card."

Martínez was making closing arguments before the Ontario Human Rights Tribunal on behalf of 54 migrant workers who were among 96 whose DNA was taken after a woman was sexually assaulted in her rural Elgin County home in October 2013.

Overseeing the tribunal is Marla Burstyn. Lawyer Christopher Diana made closing submissions on behalf of the OPP, and Matthew Horner spoke on behalf of the Ontario Human Rights Commission,

Broad DNA sweep

At issue is whether asking all Black and brown migrant workers near the woman's home for their DNA violated their rights. The woman's described her attacker as between 5'10 and six feet tall, Black, with no facial hair and a low voice that may have had a Jamaican accent. She told police he had a muscular build and was 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. The attacker was later found but not because of the broad DNA sweep.

Police asked migrant workers who worked near the woman's home for their DNA, even if they didn't meet the physical description she provided. Most did not fit the description except for the colour of their skin.

Economic class, race, immigration status and the location of where the police investigation was happening all have to be considered, Martínez said.

"These are people who are on the lowest rung of the socio-economic ladder in Canada, doing the work we refuse to do ... Being poor and Black compounds their vulnerability," he said.

"These workers live under a constant threat of removal from Canada and ... for eight months of the year live on the literal margins of our society, excluded from the social fabric of our lives, living in housing provided by their employers."

Officers showed a composite sketch to white members of the community and provided a suspect description to media, but didn't show that to the migrant workers. They collected DNA from those workers who had an alibi for the night of the assault.

The OPP didn't have training in, experience with, or policies about DNA sweeps, and still don't, Martínez said.

Martínez asked for $30,000 for each of the affected workers.

The OPP has argued that they had to get DNA from a large number of people because the one point they were confident about was that the assailant was a migrant worker who lived close to the woman. Her other description could have been faulty, Diana said.

"Context matters. This context is an investigation into a violent stranger-on-stranger sexual assault in a woman's home, who she described as a migrant worker from a nearby farm. In the real world of criminal investigations, the OPP does not get to work backwards," he said.

Police investigation was urgent

The woman had suffered significant trauma, banged her head, was blindfolded and was not confident she could describe the attacker to a sketch artist, Diana said. That led police to look at all migrant workers in the vicinity, he added.

"Based on all those things that have happened to the victim, there could have been a wide range of suspects and they had limited time to get it done. They would have been reckless if they had relied on her description and not looked at others," Diana said.

"There was urgency because the workers would be returning home soon."

The OPP were not focused on skin colour but rather "migrant workers in close proximity" to the victim, Diana said.

"There's no doubt that the migrant workers were asked because they were migrant workers. That doesn't mean that race was a factor."

Burstyn said she must make a decision about whether the workers' rights were violated within six months, though she hopes to be quicker than that. If their rights were violated, there will be another hearing about non-monetary remedies and how to prevent something similar from happening again.

https://www.cbc.ca/news/canada/london/p ... -1.6368738
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Final arguments loom in human-rights case over police DNA sw

Postby Thomas » Fri Mar 04, 2022 7:15 am

Final arguments loom in human-rights case over police DNA sweep

The lawyer representing 54 migrant workers caught in a 2013 DNA sweep in Elgin County is seeking $30,000 in damages for each worker as the legal team prepares to make closing arguments in its human rights case this week.

The lawyer representing 54 migrant workers caught in a 2013 DNA sweep in Elgin County is seeking $30,000 in damages for each worker as the legal team prepares to make closing arguments in its human rights case this week.

The counsel for the Bayham migrant workers and Ministry of the Solicitor General and Ontario Provincial Police will make their closing arguments at a Human Rights Tribunal hearing Tuesday morning.

“It’s been a really long process and I think that everybody is looking forward to having some finality to it,” said Shane Martínez, the pro bono counsel for the 54 migrant workers. “There’s the potential for appeals, but we’re cautiously optimistic that once this stage of it wraps up, it will be much smoother sailing.”

The Human Rights Tribunal of Ontario hearing began in November. The administrative tribunal hears and adjudicates complaints of discrimination made under the Ontario Human Rights Code. Both sides have made written submissions and will give their closing arguments at a half-day hearing on Tuesday, Martínez said.

Citing other analogous damage estimates from the tribunal, Martínez is asking the panel to award Leon Logan, a migrant worker and lead applicant in the case, $30,000 in damages.

According to written submissions of the migrant workers’ closing arguments, the award would compensate Logan for the alleged infringement on “his inherent right to be free from discrimination and for injury to his dignity, feelings and self-respect.”

During an investigation into a violent sexual assault in Bayham Township in October 2013, Elgin OPP collected voluntary DNA samples from about 100 migrant workers in the area. Not all of the affected workers chose to be part of the human rights tribunal action.

The investigators did the sweep so they could compare the samples to a DNA profile of the suspect that was generated from a sexual assault kit and evidence left at the scene.

Investigators collected DNA from a wide range of workers, regardless of their age or physical characteristics. The suspect was described as Black and five-foot-ten to six-feet tall, but investigators collected samples from workers who were five-foot-two to six-foot-six and 22 to 68 years old.

Police have said time was running out on investigators, with the harvest season nearly over and most migrant workers expected to soon leave Canada.

Martínez said the human rights case has provided even more clarity into the DNA dragnet.

“We knew that we had a strong case from the outset, but the evidence, even from police officers on cross-examination, revealed a lot about the case that was previously unknown,” he said.

If the Human Rights Tribunal of Ontario does find there was a violation of the province’s human rights code, Martínez said another hearing will be scheduled to decide on “non-monetary and systemic remedies” for the migrant workers.

“This has to do with things like destroying the DNA profiles that they kept on the migrant workers and implementing policies and procedures that would safeguard something like this from happening again in the future,” he said.

Only a handful of migrant workers refused to comply with the DNA sweep, including Henry Cooper of Trinidad. Police generated Cooper’s DNA profile from one of his discarded cigarette butts and other evidence, matched it to the suspect’s genetic profile and laid charges.

Cooper pleaded guilty to sexual assault with a weapon, forcible confinement and uttering death threats in June 2014 and was sentenced to seven years in prison.

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OPP racially targeted 54 migrant farm workers while searchin

Postby Thomas » Fri Sep 16, 2022 7:03 am

OPP racially targeted 54 migrant farm workers while searching for a rapist, Ontario tribunal rules

Provincial police canvassed workers 'based on race,' disregarded 'obvious' physical evidence: rights tribunal

Provincial police racially targeted 54 migrant farm workers during the hunt for a suspected rapist in 2013, forcing dozens of workers to hand over DNA samples despite "obvious" physical evidence they didn't match the suspect's description, according to the Human Rights Tribunal of Ontario.

The recent decision is the first time the provincial rights watchdog has ruled on the way law enforcement agencies conduct DNA sweeps and, perhaps most importantly, how police interact with migrant farm workers — a population the adjudicator called "a vulnerable, easily identifiable group" who are "clearly differentiated from the predominantly white community."

The 64-page decision also highlights the gross power imbalance between migrant farm workers participating in Canada's Seasonal Agricultural Worker Program (SAWP), their Canadian employers and the police, according to Shane Martinez, the Toronto-based human rights lawyer representing the workers in the case.

"The decision holds quite a bit of weight for us in terms of vindicating these 54 workers for an experience that was nothing short of egregious in terms of police misconduct," he said.

"The OPP is aware of the decision and is currently reviewing it," OPP Sgt. Carlo Berardi, acting co-ordinator of media relations, said in an email Thursday to CBC News. "It would be inappropriate to comment any further at this time."

OPP discriminated based on 'race, colour, place of origin'

While investigating the violent sexual assault of a woman living alone at her home in rural Elgin County in 2013, OPP discriminated against dozens of migrant farm workers "because of race, colour and place of origin," Ontario Human Rights Tribunal adjudicator Marla Burstyn wrote in a decision published Monday.

The woman told investigators her attacker was Black, male and young; and in his mid-20s. He was between 5-foot-10 and 6 feet tall. She also believed he was a migrant worker with what she thought was a Jamaican accent.

Based on that information, the OPP started cavassing the five nearest farms and eventually decided to seek voluntary DNA samples from workers, something the tribunal notes none of the officers had any experience doing.

The lead plaintiff in the case, Leon Logan, a migrant farm worker from Jamaica, described being driven by his employer to police officers waiting in unmarked vehicles on the farm property.

His boss explained there had been a rape and that Logan needed to give officers a DNA sample to clear his name. If he didn't, the farmer told him, he would no longer be allowed to work and would likely be sent back to Jamaica.

"What we saw in this case was that the police actually exploited the employer-employee relationship by going to the migrant workers' employer and getting them to assist them in gathering up the migrant workers," said Martinez.

"If they did not comply with the police investigation, if they did not provide their DNA to the police, then they would not be brought back to the farm to work."

Assailant was missed during DNA canvass

Over the course of a few days, 100 farm workers on five Elgin County farms went through a similar experience and, like Logan, 96 provided DNA samples, while four refused.

At no time was Logan or any of the 99 other migrant workers offered a phone, the adjudicator noted, "to call a lawyer, or anyone else for that matter, to discuss the police request."

"There is no evidence that the OPP considered the barriers facing the migrant workers in exercising this right to counsel, such as the likelihood of migrant workers having access to a telephone, their level of education and language skills, and the fear they may have in exercising this right."

What's more, the tribunal said, many of the men who were canvassed for their DNA "obviously" did not match the suspect's description.

"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," the adjudicator wrote, noting one of the men canvassed was only 5-foot-2, East Indian, weighed 100 pounds, and had long black hair and a goatee.

In the end, the report notes, none of the DNA samples that police collected matched what was found at the crime scene and police "somehow missed the assailant during the DNA canvass on the first farm."

SWAP system 'rotten to its core,' say advocates
It wasn't until November 2013 that police arrested Henry Cooper, who pleaded guilty to sexual assault with a weapon, forcible confinement and uttering death threats, and was sentenced to seven years in prison. The decision notes that police obtained Cooper's DNA "without his consent" by picking up a pop can, pizza slice tray and a napkin he had discarded.

Logan had asked the tribunal for $30,000 in compensation for his treatment at the hands of police. The OPP argued he should get no more than $2,000. The tribunal awarded him $7,500 for "injury to dignity, feelings and self-respect."

While advocates for the workers consider the human rights ruling a victory, Chris Ramsaroop, who's with the group Justice For Migrant Workers (Justicia for Migrant Workers, J4MW), said he wouldn't be surprised if it were to happen again.

"This is not about one employer. This is not about a few police officers engaging in egregious behaviour. The entire system is rotten to its core and we need to have fundamental changes."

It's why the group and their lawyer will be at the Ontario Human Rights Tribunal again in November, to set a date for a hearing to force the OPP to create a set of policies for how officers deal with migrant workers and the precarious legal and economic position they find themselves in while participating in SAWP.

"It's about us as a society standing up, and condemning police and ending overreach," Ramsaroop said. "We need to develop strong public policies with migrant workers' participation and development of the decision."

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OPP discriminated against migrant workers in 2013 sexual ass

Postby Thomas » Fri Sep 16, 2022 7:17 am

OPP discriminated against migrant workers in 2013 sexual assault investigation: HRTO

Provincial police discriminated against migrant workers based on their race when they conducted a DNA sweep as part of a 2013 sexual assault investigation, the Ontario Human Rights Tribunal has found.

In a ruling released earlier this week, the tribunal said Ontario Provincial Police officers collected DNA samples from 96 seasonal labourers in rural Bayham, Ont., even though many “did not match even a generous description” of the suspect, aside from the fact they were all Black or brown migrant farm workers.

HRTO adjudicator Marla Burstyn found the officers’ conduct during the sweep was discriminatory on the basis of “race, colour and place of origin,” contravening the Human Rights Code.

Ontario Provincial Police said Thursday they are reviewing the decision but declined to comment further.

The case related to a police investigation conducted after a woman who lived alone near several farms reported being violently sexually assaulted in her home.

The woman described the suspect as a male migrant worker who was Black and had a heavy accent, possibly a Jamaican one, the tribunal decision said. The suspect was also described as in his mid-to-late 20s, between five feet 10 inches and six feet tall, and muscular.

Officers, however, collected DNA samples from Black and brown migrant workers of different heights, builds and ages, the document said. Among them was a man who was five feet two inches tall, 40 years old and described as East Indian, Burstyn wrote as an example.

Though the tests were done on a voluntary basis, police failed to consider the vulnerabilities of racialized migrant workers, who face precarious employment and visibly stand out from the predominantly white community they work in, the adjudicator wrote.

“The vulnerabilities of the migrant workers are linked to their race, colour and place of origin and put them at risk of discrimination in the context of the OPP’s DNA canvass,” Burstyn said in the ruling.

She noted that under the Seasonal Agricultural Worker Program, employers can end migrant workers’ employment and cause their deportation for any reason, giving employers most of, if not all, the power in that relationship.

Shane Martinez, the lawyer representing the workers, said the decision is the first of its kind in Canada to analyze a human rights violation in the context of a DNA sweep, and the first to examine interactions between migrant farm workers and police through a human rights lens.

“Racialized people in those communities are really at the bottom socioeconomic rung of society,” Martinez said.

“They’re among the most abused and exploited individuals in Canadian society, and we have this dynamic of white officers coming in and exercising that authority … in order to advance this investigation.”

He said the tribunal reaffirmed some of the criticism levelled at the program — and the “structural vulnerabilities” that exist within it — by other judicial bodies across Canada.

Patricia DeGuire, chief commissioner of the Ontario Human Rights Commission, a body separate from the tribunal and that acted as an intervener in the case, said the agency is pleased with the decision.

“Migrant workers are among the most vulnerable workers in Ontario, and we must continue to offer them the protections that all workers and community members are entitled to,” she said.

Chris Ramsaroop, an organizer with advocacy group Justice for Migrant Workers, said many people see such workers as “seasonal” or “temporary” even though many have decades-long attachments to the communities they live in.

“It’s easy to erase them, so it’s easy to target them,” said Ramsaroop. “They’re not seen as part of the communities.”

The ruling awarded $7,500 in compensation to Leon Logan, the lead applicant. A news release issued by Justice for Migrant Workers said the parties have reached an agreement to provide the other 53 applicants the same award, which would amount to $405,000 in total.

A hearing will be scheduled to address public interest remedies, where the applicants will seek an order to have their DNA samples destroyed and another to require OPP to develop a policy ensuring DNA sweeps are compliant with the Human Rights Code, the group said in the release.

This report by The Canadian Press was first published Aug. 18, 2022.

https://nationalpost.com/pmn/news-pmn/c ... ation-hrto

https://www.cp24.com/news/opp-discrimin ... -1.6032787

https://globalnews.ca/news/9069908/hrto ... imination/
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HRTO finds discrimination in OPP DNA sweep of migrant worker

Postby Thomas » Fri Sep 16, 2022 7:20 am

The Human Rights Tribunal of Ontario (HRTO) found that the Ontario Provincial Police discriminated based on race, colour and place of origin when it conducted a DNA sweep of migrant workers in a sexual assault investigation in Elgin County, Ontario in 2013. Logan v Ontario (OPP) was the lead case in a series of 54 applications brought by migrant workers relating to the DNA sweep. The OHRC was an intervenor in the proceeding, supporting the migrant workers.

In its August 15, 2022 decision, the HRTO held that race, colour and place of origin were factors in the OPP’s conduct, contrary to s. 1 of the Ontario Human Rights Code. The HRTO noted in particular that the OPP sought and collected DNA from all migrant workers, regardless of whether they met the victim’s description or had an alibi, and the OPP failed to adequately ensure that vulnerable workers were able to provide voluntary and informed consent to the DNA collection. The HRTO’s decision also recognized the broader discrimination faced by migrant workers and their precarious position working under the Seasonal Agricultural Worker Program (SAWP), all within the larger context of anti-Black racism in society.

The HRTO’s decision relied in part on the OHRC’s Policy on eliminating racial profiling in law enforcement, noting that the OPP’s disregard of other aspects of the victim’s description in favour of race, also “raises concerns of racial profiling under the OHRC policy.”

“Migrant workers are among the most vulnerable workers in Ontario, and we must continue to offer them the protections that all workers and community members are entitled to,” said OHRC Chief Commissioner Patricia DeGuire. “The OHRC is pleased with the result because of the historical challenges of establishing race-based cases.”

The hearing was split into two parts, and the next step will be an evidentiary and legal hearing on appropriate non-monetary and public interest remedies.

https://ccla.org/wp-content/uploads/202 ... cision.pdf

https://www.ohrc.on.ca/en/news_centre/h ... nt-workers

https://www.thestar.com/news/canada/202 ... finds.html
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Victory for migrant farmworkers in Canada in racial profilin

Postby Thomas » Fri Sep 16, 2022 7:23 am

Victory for migrant farmworkers in Canada in racial profiling case

A human-rights tribunal in Ontario, Canada, has delivered a historic ruling in an almost decade-old legal battle between 54 migrant farm workers and the Ontario Provincial Police.

Last month, the Human Rights Tribunal of Ontario (HRTO) ruled that the farm workers were targeted by police solely on the basis of their skin colour and their status as migrant farmworkers.

In November last year, the tribunal heard the lawsuit by the migrant farm workers which included several Trinidad and Jamaican men who alleged racist policing practices.

They were represented by the group Justice for Migrant Workers. Their lawsuit stemmed from an October 2013 sexual assault near Bayham, Ontario, when the Ontario Provincial Police did a DNA sweep to collect samples from approximately 95 migrant farmworkers employed in the region.

Justice for Migrant Workers said the police’s investigation was done with what appeared to be a total disregard for the detailed suspect description given by the victim.

The group said DNA samples were taken from Indo and Afro-Caribbean men from Jamaica and Trinidad.

It also said the workers were targeted solely on the basis of their skin colour and their status as migrant farmworkers.

Some 54 of the affected migrant farmworkers filed joint human-rights applications with the Human Rights Tribunal of Ontario.

Their attorneys argued that the DNA sweep and the manner in which it was done was racial discrimination that violated their rights under section 1 of Ontario’s Human Rights Code.

The tribunal found that the DNA samples were taken from the farmworkers even if they had alibis or did not match the suspect’s description.

"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," the tribunal found.

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 the workers’ right to be free from discrimination by improperly targeting them on the basis of race, skin colour, and place of origin.

"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.”

"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.”

Monetary compensation was ordered for Leon Logan, the lead applicant in the complaint, and the parties reached an agreement for the remaining 53 to receive an award.

Another hearing to address public interest remedies is expected to be held. At that hearing, the group will be asking for an order that their DNA samples be destroyed and the Ontario police develop a policy to ensure DNA sweeps are compliant with the human rights code.

Attorney Chris Ramsaroop said the tribunal’s ruling was 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 criminalisation, and racist police practices. This isn’t about a few bad apples though; the entire system is rotten to its core.”

Attorney Shane Martinez, who argued the case for the farmworkers, said, “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 racialised migrant farmworkers in this country is a shameful part of both Canadian history and our present-day reality.”

Justice for Migrant Workers said the case was the first in Canada to examine allegations of systemic racial profiling and discrimination by the police towards migrant farmworkers.

“It is anticipated that it will expose not only the inherent vulnerabilities that workers are exposed to under the Seasonal Agricultural Worker Program, but how those vulnerabilities were exploited by the police in their execution of the 2013 DNA sweep,” the group said in 2021.

https://newsday.co.tt/2022/09/11/victor ... ling-case/
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Tribunal rules police wrongly targeted black migrant workers

Postby Thomas » Fri Sep 16, 2022 7:26 am

Tribunal rules police wrongly targeted black migrant workers in 2013 rape case

ELGIN COUNTY — It was an October evening, after 9 p.m. and this was her evening routine. She stepped onto the front porch and looked out at the road that was used frequently by migrant workers walking to and from local farms. She lived alone in rural Elgin County and sat down in the peaceful darkness that shrouded farm country and lit a cigarette. She had no idea of the sudden horror that approached under the sentinel light. Suddenly, there was a gloved hand around her mouth. A tall man in a grey hoodie — his face guarded by darkness — pulled out a knife.

She fought back but was knocked backwards and hit her head on the brick wall of the house. The man wearing gloves dragged her into the house where she stood facing him. He tried to turn her around and got her onto the living room floor, face down, and choked her with a piece of cloth.

That’s when she stopped resisting. He then blindfolded her and tied her wrists and told her that he was going to kill her. Instead, he raped her. Then he tied her ankles and wiped down her body with a cloth and threatened her with death if she called police. The terror lasted about 45 minutes and then the man was gone.

The next day, the woman called police and described the assailant as a muscular black man in his twenties, about 5 ft. 10 in. to 6 ft. with a Jamaican accent and no facial hair. She said he was a migrant worker from one of the local farms.

She recalled telling the man to his face: “You’re one of those guys I see up and down the road.”

The facts here are not disputed and are taken from the Human Rights Tribunal of Ontario 64-page decision published on August 15. To protect the victim, she is described only as a woman. What was in dispute was the police investigation.

It was mid-October 2013 and police figured that the rapist was among the migrant workers and would soon be going home to his country. They needed to act quickly. They decided on conducting a canvass DNA test. There were five farms in the area that hired black and brown migrant workers and there were about 100 of them, all hired from the Seasonal Agricultural Worker Program and many of them from Jamaica.

Police went to each farm and read a consent form to each migrant worker that gave the worker the option of not providing a biological sample and of talking to a lawyer. Each migrant interview was recorded.

Jamaican farmworker Leon Logan agreed to the DNA test but later filed a human rights complaint based on racial discrimination. The Human Rights Tribunal of Ontario last month ruled that the police were not guilty of race discrimination for canvassing black men because the victim said the man was black. But the tribunal found police guilty of racial discrimination for targeting black men that did not come close to matching the victim’s description and for requesting DNA samples from black migrant workers who provided alibis. Police got voluntary samples from migrant black workers who were too fat, too skinny, too tall, too short, too old or had too much hair.

Police defended their strategy of casting a wide net in the DNA canvass by arguing that victim descriptions are often inaccurate and time was of essence as the harvest would soon be over. The Ontario Human Rights Commission adjudicator Marla Burstyn didn’t buy it, saying that the police ignored many of the descriptions and targeted all black and brown men who worked on area farms. For instance, one man was 5 ft. 2 in., East Indian with a moustache. He refused to provide a sample. Police also requested samples from migrant workers who were as tall as 6 ft. 6 in., up to 328 lb., workers in their 50s and 60s and those with full beards. “This case could also be seen as racial profiling,” the adjudicator concluded.

Expert witness, Wilfrid Laurier University associate professor in the school of international policy and governance, Dr. Jenna Hennebry called the employment program racist, embedded in colonial history, using cheap racialized labour “with workers who are deemed needed for the economy but unworthy of settlement.” She also said workers often lived in inadequate living conditions and live in a “climate of fear of losing their livelihoods.”

The tribunal learned that at least one employer told migrant workers they needed to take the DNA test or could lose their jobs. The tribunal concluded that the “OPP did not adequately take the migrant workers’ vulnerabilities into consideration” and noted the power imbalance between migrant workers and their employers meant that migrant workers “would feel they had little choice but to provide a DNA sample.”

The tribunal ordered the OPP to pay Logan $7,500 for injury to his dignity, feelings and self-respect.

Burstyn noted that Logan “felt humiliated, defeated and saddened by his experience. He expressed worry that the OPP may carry out a similar, race-based DNA sweep on migrant farmworkers in the future. He also remains worried about what the OPP or others may make of his personal information and/or his DNA profile.”

Burstyn also encouraged the OPP to resolve the 52 remaining charges of discrimination made by migrant farm workers to avoid another hearing.

As for the OPP, they insist the wide-net DNA strategy worked to find the rapist. He was one of four migrant workers who refused to submit to a DNA test. Henry Cooper was interviewed and immediately became a suspect. Police followed Cooper and secretly picked up a pop can, pizza slice tray and napkin that Cooper had used. The items were sent to a lab which confirmed that Cooper’s DNA matched the DNA found at the crime scene. He was arrested two months after the assault, pled guilty to sexual assault with a weapon and was sentenced to seven years in prison.

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Migrant workers awarded damages from OPP in racial profiling

Postby Thomas » Fri Sep 16, 2022 7:28 am

Migrant workers awarded damages from OPP in racial profiling case

In a landmark ruling, Ontario human rights tribunal finds farmworkers were discriminated against by provincial police

In a landmark decision, a human rights tribunal in Ontario has ordered police to pay out thousands of dollars in damages in Canada’s first legal case examining allegations of discrimination and racial profiling of migrant farmworkers.

During hearings, the Human Rights Tribunal of Ontario (HRTO) learned that Ontario Provincial Police planned to take DNA samples from dozens of migrant workers before interviewing the victim of the crime; coordinated with bosses to carry out the DNA canvas; kept the biological data from the samples on file after the investigation was closed, and even visited a bank where workers kept their accounts.

The importance of the tribunal’s decision goes beyond the specifics of this case, and points to major problems with the Seasonal Agricultural Worker Program (SAWP), a part of the Temporary Foreign Worker Program (TFWP).

This victory for the 54 migrant workers comes almost a decade after they were subject to a DNA canvas which was found to be discriminatory on the basis of “race, colour and place of origin,” according to the decision, which was released in August. All of the impacted workers, who hailed from Trinidad, Jamaica and the Dominican Republic, were Black and Brown.

Exposing a racist police investigation

Ontario’s agricultural industry depends heavily on labour from the over 60,000 migrant farmworkers who come to Canada every year. Their role in agriculture is essential, but they are physically and systemically marginalized in the communities where they live and work.

“Workers live on the employers’ property, and in many instances they’re seen by the larger community as simply an extension of the employer or an extension of the farm,” said Chris Ramsaroop, an activist with community organization Justicia for Migrant Workers (J4MW).

The tribunal heard how the Ontario Provincial Police (OPP) conducted their DNA canvas on five farms —in collaboration with the workers’ employers—over the course of four days in October, 2013, as part of a sexual assault investigation in Elgin County, Ontario.

Almost 100 workers were brought into the back of an unmarked police car where they were interviewed, and then sent to an OPP forensic van for a cheek swab.

According to lawyer Shane Martínez, who was representing workers in this case, the decision to pursue a canvas was made before the victim was even interviewed, and before the OPP had confirmed the existence of DNA evidence to compare against samples collected.

Lead applicant Leon Logan testified that he was working in the field when he and others were approached by the farm owner and told that a woman had been assaulted and that the workers needed to provide DNA evidence to clear their names. “Mr. Logan testified that he felt as though he had no choice but to cooperate with the police,” reads the decision.

During the HRTO proceedings, Shane Martínez, the lawyer who represented workers, read out a letter sent from the owner of Martin’s Farm to the OPP indicating he would not be inviting back workers that refused to participate in the canvas.

“I think the letter was essential in some respects, to show the relationship between the police and the employer, the reliance of the police on the employer and the employer strongarming workers—even if that may not have been necessarily the intention of the police to have the employer do that,” said Martínez by phone. Even so, he said, “That’s what ended up happening at the end of the day. And that’s what’s important for us to look at.”

Ramsaroop notes that OPP officers worked with farmowners to conduct the canvas in a way that didn’t impact the harvest.

“The investigation, the collection of the DNA and the interrogations of the workers did not impede production,” he said. “For me that’s extremely telling, and shows that the first thing that mattered was ensuring that production was not impacted. The infringement of migrant workers’ rights did not matter to the employer, or to the OPP.”

During their investigation, the OPP did not share information with workers that was shared with other members of the public, including a composite sketch and physical description of the assailant. Many workers forced to provide DNA did not match the description of the suspect.

The OPP took DNA from Pooran Persad, who at the time of the investigation was 40 years old, had long hair and a goatee, stood at 5’2” and weighed 100 pounds. But the description of the assailant given by the victim was a man between 5’10” and six feet tall and in his late 20s, with a muscular build and no facial hair.

“I was frightened,” said Hezekiak Ormsby, who is no longer in the TFWP. “And to make matters worse, I did not fit the description of the person they were looking for. I believe we were targeted because of our colour.”

“I felt humiliated, insulted about the situation,” Ormsby, who was 62-years-old at the time of the canvas, told The Breach. “It was the first time in my life I was interviewed in that manner.”

In another stunning revelation, Martínez described how OPP investigators went as far as visiting a local bank branch to seek information about all migrant workers who banked there, with the intention of arranging the canvas.

“The police thought that they could do this investigation in this manner and that they would suffer no consequences,” said Martínez. “And this decision proved that to be wrong.”

The HRTO has ordered the OPP to pay Logan $7,500 in damages, and according to Martínez, there is an agreement in place that “creates a pathway” for the rest of the workers to receive the same award. This would bring the total to $405,000 in damages, before interest, to be paid out by the OPP.

“The several thousand dollars is not worth it for what they did to us, but we’re glad that justice is served at the end of the day,” said Colin Tajj Holness.

“It’s not about the money—but we want justice for what happened,” said Holness, who was just 21 and completing his first season in the SAWP at the time of the canvas. “We got justice and we think we have some more justice to get.”

Essential workers, extreme discrimination

The Temporary Foreign Workers Program ties workers’ status in Canada directly to their employment, meaning that if they are no longer employed, they risk deportation. Workers in the SAWP are especially vulnerable because they have no job security season to season, and no guarantee that they will be called back to work the next year.

Holness says justice is needed not just for the workers involved in the canvas, but for all farmworkers in Canada. “We want to bring light to the situation,” he told The Breach. “People should be treated better.”

Farmworkers often live in crowded bunkhouses on the farm where they’re employed. This puts workers in an extremely precarious position, vulnerable to exploitation and without avenues to advocate for their workplace rights. In this case, it made workers a target for discrimination by the Ontario Provincial Police.

“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,” reads the decision.

The HRTO decision quotes Dr. Jenna Hennebry, an associate professor and associate dean at Wilfrid Laurier University, who called the SAWP the “textbook definition of structural racism.”

While the SAWP itself was not the subject of the case or the HRTO decision, it is extremely significant that the tribunal has addressed and included the racism and exploitation migrant workers face in this ruling.

This case is “the first of its kind, as far as we know, to examine the issues of migration, temporary foreign workers, and how that intersects with criminalization and racist policing,” said Justicia’s Ramsaroop. “I believe [the decision] is an indictment of the asymmetrical power imbalance that exists in the SAWP specifically, but also in the TFWP, and the power that employers exert over the lives of migrant workers, both where they work and live, in employer-provided housing.”

Many of the workers who gave DNA had worked in Elgin County for years, but according to Ramsaroop, they were never seen as equal members of their community.

“When they go into town they’re criminalized, they’re surveilled, and they’re all seen in a very different way than the white population,” he said.

“What we saw here was a discriminatory attitude being applied to this investigation in Tillsonburg,” said Martínez. “And the police thinking that they could get away with it, thinking that that this kind of broad investigative technique would go unchallenged down there, perhaps because of the vulnerabilities of the migrant farmworkers, their isolation, the prominent position of the police in society down there, [or] the involvement of the employer.”

The workers were told that the DNA evidence would be destroyed following the investigation, and while the physical evidence was destroyed, the biological data was not. Martínez says the Criminal Code of Canada required police to destroy this information, and it is “unlawful” that they retained it. This is now the subject of a class action lawsuit, separate from the HRTO decision.

“It’s not a good feeling,” said Holness, who is no longer in the TFWP.

“Right now I live in Canada, but at the end of the day I don’t know if that could happen to me again,” he said. “They still have my DNA and I want it to be destroyed, and I want to know how it’s going to be destroyed.”

One step forward on the path to justice

The HRTO ruling came on the heels of nine years of advocacy by and on behalf of the workers.

At the end of 2013, Ramsaroop filed a complaint with the Office of the Independent Police Review Director (OIPRD), who in 2016 released a report that criticized the canvas, but concluded racial profiling did not occur.

In 2015, workers began the human rights advocacy process when they filed 54 applications with the HRTO regarding discrimination by the OPP. The OPP attempted to have the applications dismissed, arguing that they were filing too late (as there is a one-year limitation period). Finally, in 2018, the tribunal ruled in workers’ favour, determining that the application was filed in good faith, due to what Martínez called “a prevailing culture of fear within the migrant farmworker community.”

Three years later, in November 2021, proceedings began. Closing submissions were heard in March 2022.

The federal government is expanding the larger TFWP in the face of widespread criticism and public outrage over the treatment of migrant workers, addressing structural inequalities built into the SAWP remains essential. Last year over 80,000 workers arrived in Canada with TFWP permits, the most since 2014.

“This is a significant victory by a group of courageous workers whose strength in numbers and a burning desire for change lead to victory,” said Ramsaroop. “These workers fought and will continue to fight to end criminalization and racist police practices.”

https://breachmedia.ca/migrant-workers- ... ling-case/
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