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 reportthat 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.”