The Background

Mr. Logan, from Jamaica, was in his fifth year participating in the Season Agricultural Worker Program (“SAWP”). He was employed in the small, rural, and predominantly White community of Elgin County, Ontario, where he lived and worked with other migrant workers, all of whom were Black or Brown men.

On the evening of October 20, 2013, a woman was violently sexually assaulted in her home, near the farm where Mr. Logan worked. When the victim reported the incident to police, she described the assailant as a Black male with an accent that she believed to be Jamaican.

The investigating officers decided to employ a voluntary DNA canvass of all migrant farmworkers in the area to match the DNA with the sample provided by the victim. This technique is not commonly used in investigations, nor had any of the officers participated in one previously.

In addition to the DNA collection, each worker was interviewed and asked to provide details of their physical description, employment, residential history, and where they were on the night of the attack. Mr. Logan testified that he did not want to provide a DNA sample. However, he did so to appease his employer and the police.

On or around November 15-16, 2013, the police identified two migrant workers who did not participate in the original canvass. The police obtained a DNA sample from these individuals the following day. Within the next few weeks, the perpetrator was identified and arrested as one of these individuals.

The Social Context of Migrant Workers

At the hearing, Dr. Jenna Hennebry, an Associate Professor and Dean at Wilfrid Laurier University’s School of International Policy and Governance, was qualified as an expert witness to discuss the characteristics of SAWP and the systemic vulnerabilities of racialized migrant workers. Dr. Hennebry testified that the SAWP program creates a vulnerable and temporary workforce with little or no access to permanent status and significant barriers to accessing services and ensuring the protection of their rights.

Furthermore, the contractual obligations tied to the SAWP program include that the employee must work for a specific employer for the season. The employer may also fire and deport a worker without cause or explanation. Moreover, many migrant workers are typically required to live in employer-provided housing with inadequate living conditions. This creates a power imbalance between employers and workers, as fear of losing current and future employment heightens barriers to accessing justice for labour and human rights protections.

The Decision of the Tribunal

The Tribunal determined that the investigation was heavily based on race, as only Black and Brown workers were asked to provide DNA samples, whereas the same request was not made to the White farm owners or any other males in the community. Furthermore, despite receiving a description from the victim that included the suspect’s height, approximate age, build, and facial hair, workers whose physical descriptors did not match, were still included in the canvass.

$7,500 was awarded as compensation for the injury to Mr. Leon’s dignity, feelings, and self-respect against the Ontario Provincial Police.

Looking Forward

As Canada confronts an ongoing labour shortage, we hope for more equitable treatment for workers of all employment statuses. In the interim, it is vital that discriminatory practices be identified and resolved to prevent the harm such acts can cause.