A migrant worker who had their DNA taken by the Ontario Provincial Police holds up a sign that reads, in full, "I feel bad. They called us and question us one by one. They asked if I had been to Simcoe and "got lucky." I want my DNA destroyed."
A migrant worker who had their DNA taken by the Ontario Provincial Police holds up a sign that reads, in full, "I feel bad. They called us and question us one by one. They asked if I had been to Simcoe and "got lucky." I want my DNA destroyed." Credit: Justicia 4 Migrant Workers (J4MW)

At the end of November, the Human Rights Tribunal of Ontario heard the long-anticipated case against Ontario Provincial Police (OPP) who racially profiled 96 migrant farm workers by conducting a DNA canvass during their investigation of a sexual assault in Bayhem, Ontario in October 2013.

Fifty-four of the 96 migrant workers who were targeted are being represented by Shane Martinez before the tribunal.

The victim described the suspect as a Black male who was muscular, between 5’6” and 6’ tall, fairly dark, in his mid to late 20s, with no facial hair. She also stated that she thought he was a migrant farmworker who had a heavy accent that she thought was Jamaican.

Early in its investigation, the OPP decided it would conduct a DNA canvass of all migrant workers in the area, without knowing whether they had DNA evidence and without interviewing workers. This resulted in the DNA samples of 96 migrant farmworkers being taken, regardless of whether it was remotely possible for them to fit the description of the suspect. DNA samples were taken from Indo- and Afro-Caribbean men from Jamaica and Trinidad who ranged in age from 22 to 68, ranged in height from 5’2” to 6’6” tall, and ranged in weight from 110 to 328 lbs. The OPP’s investigation targeted migrant workers based on their skin colour, their race, their place of origin and their immigration status.

This was a flawed investigation driven by racial profiling, implicit bias and discriminatory practices that perpetuate entrenched stereotypes about migrant farmworkers. Two themes can be distilled from the human rights tribunal hearing: how the societal construction of race and the narrative surrounding migrant farmworkers is embedded in racialized police practices and how the OPP’s exploitation of the vulnerabilities of migrant farmworkers exposes the systemic issues with Canada’s Seasonal Agricultural Worker Program (SAWP).

Racialized policing based on assumptions and stereotypes

From the moment migrant farmworkers begin their journey in Canada, they are subjected to the systemic discrimination that Canada’s foreign work programs were built on.

The SAWP is a government-to-government agreement that is designed to exploit the labour of racialized persons from the Global South. The discrimination that is experienced by migrant workers impacts every aspect of their lives, from workplace abuse and inadequate living conditions to exclusions from employment standards and protections; the list goes on. Yet, the SAWP program is constructed to ensure that this intersectional discrimination remains hidden.

The narrative surrounding migrant farmworkers in Canada is dependent on social constructions of race, racism and difference.

Credit: Justicia 4 Migrant Workers (J4MW)

From the outset, migrant workers are secluded from society as they live in employer-provided housing where they are under constant surveillance and are subject to deplorable living conditions. They are geographically segregated to rural areas, which limits their ability to form social bonds and connections in the community. Their economic and social mobility is constrained by the program because they are denied participation in social and political life and are restricted from full access to social services.

Migrant farmworkers are racially constructed through SAWP to ensure that they remain a segregated labour regime that is based on difference. The SAWP operates not only to ensure that migrant workers remain segregated from Canadian workers, but also divides workers based on their countries of origin by perpetuating discriminatory stereotypes based on race and nationality.

The socially constructed otherness of migrant farmworkers was apparent throughout the tribunal hearing. Martinez’s cross-examination of each police witness revealed that the OPP took DNA samples from migrant farmworkers regardless of whether they fit the description of the suspect.

Christopher Diana, the lawyer representing the OPP, argued that this investigation was not based on assumptions and stereotypes. In his opening statement he argued that: “[t]his is a context where there are few investigative leads…(and) a potential threat to other members of the public, and public safety is very much the legal issue before you.” Yet this narrative is premised on the stereotypes and assumptions that the OPP are attempting to dispel.

This narrative is consistent with the pervasive stereotypes about Black men and migrant workers as a threat, violent and prone to criminality. The OPP utilized stereotypes about migrant workers as a potential threat to public safety as justification for increased surveillance. Even worse, they used this narrative to justify the highly invasive practice of a DNA canvass that targeted all members of the migrant farmworker community.

The OPP investigation also reveals the differential treatment of white employers and workers and the migrant farmworkers of colour. The cross-examination of the officers revealed that they ignored the alibis of the migrant farmworkers. Yet, when engaging with a white employer they unequivocally accepted his alibi for a group of workers on the farm. The OPP also shared the composite sketch with white employers, whereas they did not share the composite sketch of the suspect with any migrant farmworker. Instead of using other investigative tools at their disposal, they relied on a rarely used and unregulated police practice that put an already vulnerable population in a highly invasive and coercive situation. 

Credit: Justicia 4 Migrant Workers (J4MW)

Vulnerabilities of workers

The precarious status of migrant farmworkers is embedded in an oppressive and discriminatory immigration system that creates their vulnerabilities.

The SAWP operates through temporary tied work permits. This means that each migrant farmworkers legal (yet temporary) status in Canada is contingent upon a formal employment agreement tied to a designated employer. Receiving a temporary permit, while highly coveted in sending countries, does not guarantee stable living conditions and wages for migrant workers.

The SAWP denies workers any right to permanent residency, while giving employers the power to determine if workers will be repatriated, deported, or if workers will be welcome back the next year.

This tied system is a mechanism of subordination and exploitation. It creates a systemic power imbalance and allows employers to exploit the migrant workers’ precarious status in Canada. It means that migrant workers are unable to leave their employment, or speak out about inadequate working and living conditions, without fear of losing their immigration status. This threat of repatriation and deportation is one of the main features of the SAWP that works to keep migrant farmworker voices silent.

The migrant farmworkers’ race, skin colour, place of origin and immigration status intersect to give rise to a particular vulnerability that was used by the OPP as a basis for its discriminatory DNA canvass. However, this is not an isolated incident. The OPP investigation reveals how race and racism operate in these institutionalized settings to reinforce the systemic power imbalances that are at the core of Canada’s temporary foreign worker programs.

Most people would not feel like they have the right to say no when police ask them for their DNA, regardless of whether they were asked for consent. For vulnerable populations, like migrant farmworkers,  their interactions with police are dictated by the long history of police abuse against racialized persons. Therefore, there is a heightened risk that they will be subject to coercive situations that make it difficult for migrant workers to give informed and voluntary consent.

Leon Logan, the lead applicant representing the 54 migrant farmworkers, testified that he felt he had no choice to refuse the DNA sample: “[m]y concern is if I didn’t give that DNA sample that day, I would be out of a job the following season and wouldn’t have a chance to come back to Canada.”

This precarity was exacerbated by the important role that the employers played in orchestrating the DNA samples of the migrant farmworkers. The Office of the Independent Police Review Director’s report determined that the main employer of the migrant workers who were canvassed, “made the decision that none of these men would be invited back to work for our company in the future unless they consented to take [the] test.” The fear of repatriation and deportation was front of mind for many migrant workers whose DNA was taken.

The temporary status of migrant farmworkers was exploited by members of the OPP throughout their investigation. One of the recurring narratives provided by the OPP in its testimony was that officers were under pressure to conduct a quick investigation because the harvest season was ending. However, this was rebutted by Martinez numerous times, as it became clear that the OPP received guarantees from several white employers that they would inform the OPP if any migrant farmworker that worked for them was leaving Canada.

Further, almost all migrant farmworker contracts end on December 15 of each year, which gave the OPP over a month to conduct a lawful investigation. The vulnerable status of migrant farmworkers, whose temporariness in Canada is enacted by the state, was exploited by the police to justify the execution of a racially motivated DNA canvass.

This hearing is historic and precedent-setting because it is the first human rights case in Canada that examines allegations of systemic racial profiling, bias, and discrimination by the police against migrant farmworkers.  It also presents the first opportunity for a tribunal to find that these systemic practices inform policing. The hearing is set to continue on February 1, 2022 for closing arguments.

On December 17, 2021 at 6 PM EST (3 PM PST), Justicia for Migrant Workers will be hosting a Community Forum on Racialized Policing and Migrant Workers, with Shane Martinez, Moilene Samuels, Tracy Ann Hines, Adrian Smith, and Vasanthi Venkatesh.

Zoom link: https://tinyurl.com/j4mwzoom

Leslie Schumacher

Leslie Schumacher is a third-year law student at the University of Windsor Law. She is a member of the Migrant Farmworkers Clinic, an LFO-funded project organized by Justicia for Migrant Workers (J4MW)...