Why these migrant workers are taking on the OPP

A DNA sweep may have helped the OPP catch a criminal — but did it violate innocent workers’ human rights?
By Ashley Okwuosa - Published on Dec 08, 2021
As part of a sexual-assault investigation, the OPP collected DNA samples from 96 migrant workers in 2013. (Graham Hughes/CP)



Leon Logan says it was on October 22, 2013, that his employer told him he’d need to take a DNA test: a woman had been sexually assaulted in Bayham, in Elgin County, and Logan and other workers at the Martin Family Fruit Farm would need to be swabbed to clear their names.

These details form part of a witness statement that Logan, a migrant worker from Jamaica, submitted to the Human Rights Tribunal of Ontario as part of its hearings on the sweep, which saw the Ontario Provincial Police collect DNA samples from 96 migrant workers. 

According to a 2016 report from the Office of the Independent Police Review Director, the woman had described her attacker as a Black man who was between five foot 10 and six feet tall, muscular, possibly in his mid- to late 20s, and “fairly dark, with no facial hair and … a low voice with a heavy accent, which she thought to be Jamaican.” Shane Martínez, the lawyer representing Logan and more than 50 other migrant workers, says that samples were taken from Indo- and Afro-Caribbean men from Jamaica and Trinidad and Tobago who ranged in age from 22 to 68, in height from five foot two to six foot six, and in weight from 110 pounds to 328 pounds. 

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Logan and the workers say that they were discriminated against and that their rights were violated under Section 1 of the Human Rights Code, which states that “every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.” 

“It made me feel sad, it made me feel defeated, and it made me feel humiliated,” said Logan during the hearing on November 22. In the lead-up to the closing arguments, which are expected early next year, TVO.org speaks with experts about what’s at stake.

What the migrant workers say

Martínez argued that the OPP had targeted migrant workers based on their skin colour and status as foreign workers and disregarded the description of the suspect provided by the victim.

sign with text indicating that a worker feels discriminated against
Workers say that their rights were violated under Section 1 of the Human Rights Code. (Courtesy of Justice for Migrant Workers)

Then-farm worker Dwayne Henry, who’s from Jamaica, was asked to provide a DNA sample, although he has dreadlocks. “Nowhere in the description [did it say] a person with dreads,” Henry tells TVO.org. “I [felt] violated.” 

Henry adds that, although he provided police with an alibi for that night, he didn’t feel as if he could refuse to provide a sample, because he feared doing so might affect his employment: “It’s my work. So I honestly had to just do whatever because I was so scared of not coming back.”

That fear points to the issue of informed consent in the larger context of migrant labour. 

Migrant farm workers who are part of Canada’s Seasonal Agricultural Worker Program come from the Caribbean or from Mexico. Employers provide a closed work permit: workers are not allowed to move to any other employer or location. In a witness statement submitted to the tribunal, Jenna Hennebry, associate dean at Wilfrid Laurier University’s School of International Policy and Governance, writes that “the structure of the program embeds a power imbalance between employers and workers, where the employers hold most, if not all, of the power.” And a worker can return to Canada for the following agricultural season only at the discretion of their employer

According to Janet McLaughlin, an associate professor of health studies at WLU and a co-founder of the Migrant Worker Health Project, these factors create a risk of retribution that makes it difficult for farm workers to provide informed consent. 

McLaughlin says some of the workers she spoke to told her they feared reprisals  for refusing to participate: “This is a police officer, a person in a position of power. Will they tell my employer? Will there be a stain on my record that will prevent me from coming back? There was genuine fear. So how can you have free and informed consent when you're in that situation of fear?”

Scot Wortley, an associate professor in the University of Toronto’s criminology department, notes that, when undertaking DNA canvasses, police must strike a balance between maintaining public safety and protecting the rights of all citizens. “We all have a right [ be secure against] unreasonable search and seizure. But these tactics whittle away at those rights and put the public in a very coercive position that you must submit to — whether it be fingerprints or DNA or a search warrant — to clear yourself.”

This is compounded by the vulnerabilities of migrant farm workers, says Wortley. “This incident speaks to issues of human rights, but also racial profiling, [and] the vulnerability of migrant workers who may be coerced into participating because they feel that non-participation is going to jeopardize their status and their ability to get into the country.”

What the OPP says

Christopher Diana, the lawyer representing the OPP, maintained that the woman who was sexually assaulted provided only a general description and that the voluntary DNA sweep had been crucial to arresting the assailant, Henry Cooper, a migrant worker from Trinidad. According to the OIPRD report, Cooper chose not to provide DNA to the police when asked, and his refusal, coupled with demonstrable false statements associated with his refusal, prompted the police to obtain his DNA from such items as a cigarette butt, a pop can, a pizza-slice tray, and napkins. Cooper ultimately pleaded guilty to sexual assault with a weapon, forcible confinement, and uttering death threats. He was sentenced to seven years in prison. 

In December 2013, the advocacy organization Justice for Migrant Workers filed a complaint

sign indicating worker is upset by how they were treated by the OPP
A lawyer for the migrant workers argued that the OPP had targeted them based on their skin colour. (Justice for Migrant Workers)

with the OIPRD.  The resulting July 2016 report stated that police had “ample grounds” to believe that the perpetrator was one of the local migrant workers of colour, and there were significant time constraints on the investigation because many of the migrant workers were scheduled to leave Canada and return to their home countries. The decision to conduct the DNA canvass, it concluded, had enabled the police to focus on and ultimately apprehend the perpetrator.

(Chris Ramsaroop, an organizer with Justice for Migrant Workers, tells TVO.org via email that the DNA sweep "in fact impeded the search for the suspect involved in this investigation" and that the OPP "did not follow up on alibis or information provided to officers which would have enabled the completion of this investigation in a timely manner.") 

The report nevertheless did highlight issues with the approach — and questioned whether the consent obtained from farm workers could truly be considered informed and voluntary. As Gerry McNeilly, then the Office of the Independent Police Review director, wrote in a press release when the report was published, “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.” 

An OPP representative told TVO.org via email that it would not be appropriate to offer comment while the HRTO decision is still pending.

Why is this case important?

The OIPRD report recommended that the OPP and other police services develop a policy to govern how and when DNA canvasses are conducted and stressed that they must be compliant with the Canadian Charter of Rights and Freedoms, Ontario’s Human Rights Code, and the Criminal Code of Canada. TVO.org reached out to the OPP to confirm whether it had implemented any of the recommendations, but a representative declined to provide comment. The OPP did tell CBC News in November that it had “reviewed [the report's] contents and continues to address the recommendations that were made in the OIPRD review.”

Agenda segment, November 26, 2021: Foreign agriculture workers seek justice

Wortley would like to see data around DNA canvassing: “If they are going to do this, race-based and other demographic data [should] be conducted on who is being subjected to these types of tactics. We want to be able to know whether it's being used disproportionately on minority populations or if it's being equally used across different jurisdictions.” (Asked whether it collects such demographic data, the OPP declined to provide comment to TVO.org.) 

Martínez hopes the tribunal will offer police direction as to how they should carry out DNA sweeps that are compliant with the Human Rights Code: “What we need is an order from the tribunal to force [the police] to have policies and force them to have training for officers, which will guarantee the rights of the people in the communities that they interact with and be sure that they're not subjected to racist policing and discrimination.”

This article has been updated with additional comment from Justice for Migrant Workers.

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