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

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. 

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

Fifty-four migrant farm workers primarily from Trinidad and Tobago and Jamaica, say they were coerced into providing DNA swabs in a canvas completed in the Bayham, Ont., area in 2013. (CBC News)

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. 
Shane Martínez is a human rights lawyer based in Toronto. He's representing 54 migrant workers pro-bono who allege they were racially discriminated against as part of mass DNA swab in 2013. (Martínez Law Website)

"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.