OPP’s DNA Sweep Discriminates Against Migrant Workers

In a recent Human Rights Tribunal of Ontario ruling, it was found that the Ontario Provincial Police violated the human rights of a large number of migrant workers based on race, colour and place of origin, when it conducted a DNA sweep during a criminal investigation of a sexual assault. 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 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 on eliminating racial profiling in law enforcement.”

The ruling is the application in the “lead case” in a group of 54 Applications brought by migrant farmworkers with the same allegations of discrimination with respect to the same DNA canvass.

Background

As previously stated, this application concerned one of the migrant workers from Jamaica participating in the Seasonal Agricultural Worker Program for his fifth year. Through this program, the 20-year-old worker was employed by a farmer in a small rural predominantly white community in Ontario. During his employment, the worker lived with other migrant farmworkers in one of several bunk houses spread out on the farm.

In 2013, a woman was violently sexually assaulted in her home. The woman lived alone in an isolated area near the farm where the migrant workers worked. The day after the assault, the woman called the Ontario Provincial Police (OPP) to report the sexual assault, describing the assailant as a male “migrant worker” who “had an accent” that she thought sounded Jamaican. The woman based this characterization on the fact that, although he had on a hoodie that had been pulled low, he was clearly black. On this basis, the women presumed he was one of the participants of the Seasonal Agricultural Worker Program who walked up and down the road bordering her property every day. The woman further characterized the assailant as being in his mid to late 20’s, almost six feet tall, very muscular and with full nose and lips.

After interviewing the woman, the OPP arranged for a composite sketch artist to work with the victim. The officers showed the sketch to some farmers in the area as an investigative tool. The composite sketch was not shown to the migrant workers at any time. The OPP also decided to conduct a voluntary DNA canvass of migrant farm workers. The police did not exclude any of the workers from the DNA canvass if they did not match the other physical descriptors given by the victim (i.e., age, height, build, facial hair). The police did not request DNA samples from the farmers or the supervisors on these farms who were all white. Their explanation of how the DNA canvas was conducted included that it was the time of year when the migrant workers would be returning to their home countries and may never return.

The interview process for the migrant workers consisted in the filling of a form that asked for their physical descriptors as well as questions regarding where they were at the time of the crime, names of those who could confirm their whereabouts and when they planned to leave the area. Following this interview, the officers requested consent to provide a DNA sample regardless of the answers provided in the interview. The officers obtained consent by reading out a consent form that confirmed the provision of DNA was voluntary to determine their involvement in the sexual assault and that they had the right to retain counsel. If a worker consented to provide a DNA sample, he was administered a cheek swab. In three days, the OPP obtained roughly 80 DNA samples from one farm. In the following days, the police targeted four more farms in the area. In total, the OPP obtained 96 DNA samples.

The officers did not share the victim’s suspect description with the migrant workers. The Canvass Forms show that the officer would generally include the migrant worker’s height, weight, a description of facial hair and sometimes other descriptors like accent or something specific about their teeth (e.g., crooked). The Canvass Forms include examples where the physical description of the migrant worker that the officer wrote on the Canvass Form did not match the most generous interpretation of the description given by the victim.

However, the employee subject to this application testified that he did not want to provide a sample of his DNA, but he agreed to do so in an effort to appease the police and his employer. The employee testified that he was first approached by police officers to collect his DNA, and in the days following the collection of his DNA sample, he was interviewed by the police about what he knew about the sexual assault. This is the reverse order from the officers’ testimony about how the DNA canvass was conducted.

It was later reported that none of the DNA samples that the police had collected from the migrant workers matched the crime scene DNA profile. The police decided to broaden their search to farms in neighbouring counties but never did actually conduct a further DNA canvass in those counties.

The investigative team cross-referenced the list of migrant workers from the farms where they had conducted the DNA canvass, with a list of migrant workers who had provided DNA to make sure that they spoke to everyone at those farms. They identified two migrant workers from the first farm who had not provided a sample. One of these two workers had returned to his home country. The police learned that the other worker who was still in Canada had not been interviewed or provided a DNA sample.

After interviewing this worker, obtaining his DNA and finding that it matched that of the assailant, that migrant worker was arrested, convicted and sentenced to seven years of incarceration.

Following the close of the investigation, the applicant, in this case, filed a human rights complaint.

As stated in the Tribunal decision,

[87] The issue to be decided is whether the applicant has established, on a balance of probabilities, that the respondent [OPP] discriminated against him when conducting its investigation of the sexual assault that took place in the fall of 2013. The issue can be broken down as follows:

• Has the applicant established a prima facie case of discrimination?
• Does the applicant have a characteristic protected from discrimination under the Code?
• Did the applicant experience an adverse impact with respect to a social area covered by the Code?
• Was the protected characteristic a factor in the adverse impact?
• Has the respondent demonstrated a credible, non-discriminatory explanation for the conduct?
• Is an inference of discrimination more probable from the evidence than the explanation offered by the respondent?

The Tribunal after analyzing the evidence and other judicial cases concluded that the applicant has established a prima facie case of discrimination, i.e., that race, colour and place of origin were factors in the DNA canvass. The applicant experienced an adverse impact from the police investigation. 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 applicant’s evidence is that the experience had a negative impact on him on a personal level. The tribunal found that this amounted to adverse treatment. The applicant’s race, colour and place of origin were factors in the DNA canvass. There is direct evidence from the police officers that the OPP conducted the DNA canvass on the applicant and other migrant workers in the area based on their race, colour and place of origin, i.e., their migrant worker status.

[100] The evidence is that the victim of the sexual assault had described the assailant as a Black male with a heavy accent which she thought was Jamaican, and she believed he was a migrant worker. This description of the suspect is based on these Code grounds: race, colour, and place of origin (based on the described accent and migrant worker status). The police relied on this information as the basis for the DNA canvass.

[101] The evidence is that the victim’s description included the suspect’s height range, age range, build, and lack of facial hair. However, despite these additional physical descriptors, the police conducted a DNA canvass of all migrant workers in the area, regardless of whether they matched these additional physical descriptions of the suspect.

The applicant and several of the migrant workers did not match even a generous interpretation of these physical descriptions.

The evidence is that even once the police officers interviewed the migrant farmworkers and it became obvious when meeting them that some of them did not reasonably match the description provided by the victim, they still asked for a DNA sample. Further, the evidence is that the OPP requested a DNA sample even if the worker provided the police with an alibi. The applicant is an example of a migrant worker who provided an alibi.

[104] This evidence shows that the police officers failed to reassess the scope of the DNA canvass based on new information obtained during the interviews they conducted with migrant workers. Past Tribunal decisions have found that disregard of information to the contrary and failure to reassess policing steps is an indication of discriminatory conduct. See Maynard v. Toronto Police Services Board, 2012 HRTO 1220 (“Maynard”) at para. 173, and McKay at paras. 138-141.

This evidence taken together is an indication of discriminatory conduct that further supports to a finding of a prima facie case of discrimination on the basis of race, colour and place or origin.

The Tribunal rules that the respondent is to pay to the applicant the amount of $7,500 as compensation for injury to his dignity, feelings and self-respect, plus pre-judgement interest at a rate of 1 percent per annum, running from the date of the infringement, October 22, 2013, in accordance with s. 128 of the Courts of Justice Act; and post-judgment interest at a rate of 2 percent per annum on any amount that remains unpaid more than 30 days after the date of this decision, in accordance with s. 129 of the Courts of Justice Act, calculated from the date of this decision.

Discrimination in the Seasonal Agricultural Worker Program and the OPP’s Investigation

The Seasonal Agricultural Worker Program has been recognized for its structural racism as well as for creating vulnerabilities that impact a migrant worker’s ability to assert their rights. Workers who participate in the Seasonal Agricultural Worker Program have precarious employment and immigration status and are socially excluded from their community. These vulnerabilities experienced by these migrant workers are intrinsically linked to their race, colour and place of origin. The vulnerabilities faced by migrant workers involved in the Seasonal Agricultural Worker Program put them at risk of discrimination in the context of the OPP’s DNA canvass.

[68] Several judicial decisions have recognized the systemic vulnerabilities and disadvantages experienced by migrant workers in Canada. See Dunmore v. Ontario (Attorney General), 2001 SCC 94 at para. 41, De Jesus v. Canada (Attorney General), 2013 FCA 264 at para. 13, and Schuyler Farms Limited v. Dr. Nesathurai, 2020 ONSC 4711 at para. 86.

[69] Several Tribunal decisions have also recognized that migrant workers are a uniquely vulnerable group who have difficulty vindicating their rights. See Monrose v. Double Diamond Acres Limited, 2013 HRTO 1273 and Peart v. Ontario (Community Safety and Correctional Services), 2014 HRTO 611. Notably, in the Interim Decision on delay, Hosein at para. 25, the Tribunal stated that the applicants as migrant workers (one of whom was [migrant worker in this case]) live in a climate of fear of losing their livelihood, including immediate repatriation without any appeal process if they are deemed to be too assertive by their employer.

Although participation in the DNA canvass of migrant workers was voluntary, it represented a significant intrusion on the workers’ personal privacy and placed a high degree of scrutiny upon them. This scrutiny imposed a negative impact on the workers on a personal level. As a result, the OPP subjected the migrant workers to what is known as “adverse treatment” under the Ontario Human Rights Code.

This adverse treatment was intrinsically linked to the worker’s race, colour and place of origin because the DNA canvass targeted individuals solely based upon their status as migrant workers. The canvass explicitly disregarded the fact that most of the workers did not match the physical description of the suspect. Even when OPP investigators met with individuals who clearly differed from the description of the assailant, they proceeded to obtain DNA samples. Overall, the conduct of the OPP investigation exposed the reality that they displayed heightened suspicion and scrutiny-a recognized indication of discrimination under the Human Rights Code.

Taking protected characteristics into account

It is important to note that police investigators are not prohibited from relying upon race when investigating a crime. An individual’s race can form part of a criminal profile to hone-in on possible suspects. However, relying upon race becomes racial profiling when investigators disregard reliable physical descriptions of a particular suspect where race or related grounds are involved. Racial profiling can also occur when police choose to use “sweeps” instead of taking a more precise approach. The OPP engaged in racial profiling because of their total disregard for the reliable physical description they had access to, choosing instead to engage in a broad sweep of all migrant workers when they could have tailored their approach to only a subset that matched the profile.

Similarly, employers are also permitted to rely upon race for certain legitimate business or organizational purposes. There are some cases in which the legitimate interests of an employer may require taking race into account when making decisions or obtaining information, such as providing employment equity or affirmative action programs. However, obtaining information or otherwise taking action that filters workers based on race must involve not only great care but, ideally, legal counsel. Generally, employers should only attempt to target workers based upon race or other protected characteristics after carefully justifying and tailoring such actions to a legitimate need.