Lawyer: Migrant-worker DNA sweep that solved sex attack clearly ‘discrimination’

Skin color was the main reason close to 100 local migrant workers were targeted in a DNA sweep as police investigated a violent sexual assault, the lawyer representing several of them argued at a human-rights hearing Tuesday.

The counsel representing 54 foreign workers made that argument during closing submissions at a Human Rights Tribunal of Ontario hearing over the Ontario Provincial Police dragnet in Elgin County – a move investigators say helped solve the case, but critics rip as racial profiling.

The controversial DNA sweep was launched after a woman was sexually assaulted at her home in Bayham Township, southeast of London, in fall 2013. She told the OPP she believed her attacker was a migrant worker, in part based on his accent.

The victim also provided “a clear description” of her attacker, including an age range, but police cast a wide net based only on race and country of origin to find a match to crime-scene DNA, Shane Martínez, the pro bono counsel for the workers, argued on Tuesday.

“The OPP treated all Black and Brown migrant farmworkers they encountered as potential suspects, even those that cannot possibly have been responsible for the crime,” he said.

The suspect, for instance, was described as Black, five-foot-ten to six-feet tall and clean-shaven. Investigators, however, collected samples from workers who were five-foot-two to six-foot-six and 22 to 68 years old and with different types of facial hair, the tribunal heard.

Police also disregarded possible alibis provided by the workers and conducted the DNA tests either way, Martínez said, adding employers told their workers to provide samples and many did so out of fear of losing their jobs.

“If it is not racial discrimination for the police to ignore every aspect of a suspect description, except for skin color and place of origin, and then round up all Black and Brown people in any given community as part of a police investigation, including those who cannot possibly be the suspect, then nothing will meet the test for discrimination,” Martínez said.

Police, however, defended the DNA canvass, saying it was launched based on the information provided by the victim during the initial 911 call to police and a subsequent interview with officers.

“The victim indicated very clearly that the perpetrator was a migrant worker,” likely from a nearby farm, said Christopher Diana, a lawyer representing the OPP.

“This was not based on stereotypes or assumptions. It was based on information available at the time. . . so the OPP was following the evidence, basing their search on information from the victim.”

Diana also defended the police decision to expand the DNA testing beyond migrant workers who met the description of the attacker, arguing witness descriptions in many cases are not accurate.

Moreover, the attacker was not known to the victim, who had consumed alcohol the day of the assault and suffered significant trauma as a result of the attack. The attacker also wore a hoodie that covered part of his face, Diana said.

“The OPP had good reason to be confident of the general description of a migrant worker,” he said. “But the OPP also knew that the victim’s description of the height, build, age and appearance may not be accurate.”

Officers were also pressed for time to solve the case and needed to move quickly, Diana said, noting harvesting season was ending and they feared the attacker would soon leave Canada. “When these migrant workers got on the plane, the perpetrator in all likelihood wouldn’t be coming back, knowing that there’s a criminal investigation going on,” Diana said.

After collecting the DNA samples, investigators focused their attention on Henry Cooper, a migrant worker from Trinidad who refused to provide one.

Police would later obtain a DNA sample from Cooper using a discarded cigarette butt. It matched a sample taken from a sexual assault kit. Cooper would later plead guilty to sexual assault with a weapon, forcible confinement and uttering death threats in June 2014 and was sentenced to seven years in prison.

Martínez is seeking $30,000 in damages for each of the workers he’s representing in the case.

If the Human Rights Tribunal of Ontario finds there was a violation of the province’s human rights code, another hearing will be scheduled to decide on “non-monetary and systemic remedies” for the migrant workers and prevent similar cases from happening again.

It will likely be several months before a decision is rendered.

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