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

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. 

If they did not provide their DNA to the police, then they would not be brought back to the farm to work.- Shane Martinez, lawyer for migrant workers

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."