HRTO finds DNA canvass of migrant farmworkers discriminatory

In Logan v. Ontario (Solicitor General), 2022 HRTO 1004, the Human Rights Tribunal of Ontario (HRTO) upheld the lead case of applicant Leon Logan, one of 54 applications against the Ontario Provincial Police (OPP) alleging a voluntary DNA canvass done in 2013 on migrant farmworkers in Elgin County violated the Ontario Human Rights Code (Code). The canvass was part of an investigation into a sexual assault of a local resident and focussed on the migrant workers employed by five farms in the area.

DNA swab package being opened.
In 2013, the OPP's DNA canvas of migrant farmworkers involved individuals with alibies and regardless of the description of the suspected assailant provided by the victim.

An easily identifiable group:

The HRTO found the migrant farmworkers were an easily identifiable group within the predominantly white rural community where they lived and worked because of their race, colour and place of origin. The larger context of anti-Black racism and systemic discrimination in policing was also relevant to the HRTO’s analysis. Additionally, the migrant workers targeted by the DNA canvass were exceptionally vulnerable given their precarious employment situation and immigration status. All of these factors put Logan and his colleagues at risk of discrimination in the context of the OPP’s DNA canvass.

DNA canvass disregarded suspect description and worker alibies:

The HRTO found it particularly suspect that, although the victim provided a highly detailed description of the suspect, the police conducted a DNA canvass of all migrant workers in the area regardless of whether they matched this description. DNA samples were also requested from workers who provided alibies for the time period of the assault. This heightened scrutiny of the farmworkers and failure to reassess and narrow the scope of the canvass based on this information supported a finding of discrimination.

Systemic barriers in accessing the legal system:

Additionally, the HRTO concluded the OPP did not adequately take the migrant workers’ vulnerabilities into consideration when obtaining consent for the voluntary DNA canvass. Given that migrant workers are tied to a single employer who can fire and deport them without reason at any time and most of the workers were from poor households who often have low levels of education, they faced systemic barriers in accessing the legal system. Although the workers were advised of their right to get legal advice prior to consenting to providing a DNA sample, there was no phone offered or reasonably available to Logan to call a lawyer to discuss the request.

The HRTO’s decision:

The OPP never considered the barriers facing the migrant workers in exercising this right to counsel and the fear they may have in exercising this right. The HRTO found that conducting a voluntary DNA canvass of such a highly vulnerable group, without taking any steps to address their vulnerabilities, had an adverse impact on Logan because of his migrant worker status, which is linked to his race, colour and place of origin.

Logan was awarded $7,500 in general damages to compensate him for the violation of his Code rights. The HRTO will deal with the issue of non-monetary and public interest remedies in a subsequent decision.