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. 

"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, 

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 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.