By Haseena Manek
The Human Rights Council of Ontario has ruled that the applications made by two of 54 current and former participants of the Temporary Foreign Worker Program regarding racial profiling in Elgin County were in ‘good faith’. The legal representatives for the respondent in the case, the Ontario Provincial Police, called for the case to be dismissed as it was passed the 1-year limitation period.
The March 9 interim decision holds that the two lead cases heard by the Tribunal proved that there was “late filing good faith” on the part of these two workers. With this decision, all 54 cases will proceed to a full hearing.
These 54 workers are around half of a group of migrant farmworkers from Trinidad, Jamaica and Dominica who were targeted by OPP investigating a sexual assault that occurred nearby the Elgin County farm where they were employed. The assailant was described by the victim of the assault as a black male between 5’10” and 6’ in his mid to late 20s. With DNA evidence found at the crime scene, the OPP chose to conduct a DNA sweep, targeting only the Black and Brown men that were working nearby, employed through the Seasonal Agricultural Worker Program, as part of Canada’s Temporary Foreign Worker program. All the workers from the farm were requested by police to submit a DNA sample, even those that did not fit the description given by the victim.
The OPP arrived at the farm and the employer brought the workers in small groups to a police van where they were told they could submit DNA to “clear their name”.
“They just came on the farm, with the boss, and said that everybody’s gonna do a DNA [test],” Leon Logan, whose application is one of the two lead cases, explained to RankandFile.ca. “So everybody was frightened, everybody was in shock. Nobody didn’t know anything about it.”
Farmworkers in this program live and work on their employer’s property for the work season, return to their homes and are invited back the next year. They have no job security and little access to legal advise or support in protecting their human rights and rights as workers.
“If I didn’t do it, I know for sure I wouldn’t have a chance going back to Canada,” continued Logan.
The case brought to the Human Rights Tribunal focuses on this being an instance of racial profiling. In this interim decision regarding the late filing, adjudicators explicitly acknowledge the precarious nature of migrant work and how that prevented workers from being able to exercise their right to refuse to submit a DNA sample.
Section 25 reads: “The applicants as migrant workers are exceptionally vulnerable and have barriers that limit their ability to assert their rights in the workplace. They 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. They experience social and geographic isolation, and have little or no opportunity to discover information about potential redress for any grievance they might have.”
The adjudicators both acknowledge the wider disenfranchisement of migrant workers in Canada, and identify these barriers as the reason for the late filing, leading to this decision in the workers’ favour.
“It ultimately concluded that a culture of fear, a lack of access to justice, a lack of knowledge about Canadian law, and precarious/inconsistent status in Canada all contributed to the delay, and that the matter should be heard at a full hearing on the merits,” explains the lawyer representing the 54 workers, Shane Martínez. “I’m not aware of any decision that critically examines the reality of participants on the Seasonal Agricultural Workers Program in such depth.”
“Given the absence of social support in the Tillsonburg area,” the decision document continues, “Their lack of access to Internet service in the bunkhouses on the farm or in their homes in the Caribbean, and their lack of experience with seeking out legal resources, it is not surprising in my view that they were unable to gain knowledge of Canadian law, processes or supports to access the Tribunal.”
In a way, this acknowledgement by the Tribunal makes even an interim decision in a larger case a standalone victory for migrant worker rights in Canada. While it’s not an absolute first in articulating vulnerabilities migrant workers face in a legal document, it is a positive step for developing discourse in Canada that recognizes the varying dimensions of disenfranchisement experienced by migrant workers in Canada.
“The vulnerabilities we talk about are being tied to an employer,” explains activist with migrant worker advocacy organization Justice for Migrant Workers, Chris Ramsaroop. “The absence of legal protections surrounding employment standards, the inability to try to organize, all these legal barriers that create an apartheid system that migrant workers live and work under while in Canada.”
While the greater case is focused on the question of racial profiling, their success will ideally be one step in the direction of shifting the system that marginalizes migrant workers.
“The workers are hoping to have their voices collectively heard in an effort to speak out against racism in rural Ontario,” continues Martínez. “They want to break the cycle where workers are routinely intimidated into silence out of fear of retribution.”
“For us at [Justice for Migrant Workers] I think it’s clearing their names,” says Ramsaroop. “Making sure the DNA is destroyed and any information related to the DNA is destroyed, that the OPP are held accountable for the collection of the data. I think it’s abut making sure that these practises end. We have to prevent the use of any form of DNA sweeps from happening again. The migrant workers, by taking this step, is saying no vulnerable and marginalized community should be treated like guinea pigs and treated differently under law.
Moving forward from this decision, the next step is a hearing to address the claim that racial profiling occurred in the targeting of the migrant workers. According to Martinez, the outlook is positive.
“We think that the case is clearly made out and the tribunal will agree with us,” he says. “It was getting over this hurdle that the police tried to throw at us in terms of trying to get the cases dismissed that was the biggest obstacle that we faced. And having gotten over that we’re confident in our position, about the strength of our case.
For the broader fight for migrant worker rights, this case may prove to be a historic achievement for those working to shine a light on the problems of the decades-old Temporary Foreign Worker Program and the Seasonal Agricultural Worker Program.
“While the federal government is not a part of this process, this is another indictment of the failures of the Temporary Foreign Worker Program in Canada. The government cannot say that migrant workers have equal access,” said Ramsaroop.
“I hope that this wont happen to another worker in Canada ever again,” concluded Logan. “I hope they [will] treat all the [migrant] workers like a normal Canadian.”