Key Cases - Migrant Workers’ Rights: A Case Summary of Logan v Ontario (1/3)

Photo by Mark Stebnicki: https://www.pexels.com/photo/farmers-harvesting-sweet-potatoes-9798973/

Background

Since its inception in 1966, the Seasonal Agricultural Workers Program (the “SAWP”) has provided Canadian farms with a steady stream of migrant agricultural workers. In 2021, Canada accepted just over 61,000 temporary foreign workers from 11 Caribbean countries and Mexico[1]. The program allows workers to stay in Canada for up to eight months, but provides no pathway to citizenship, even for those who have returned year over year to work on Canadian farms.

The SAWP has faced significant criticism from academics, workers and advocates over the years[2].  Many participants have expressed dissatisfaction with the program, due to the poor working conditions and discrimination they have experienced. Despite strong impediments, many SAWP participants have advanced legal complaints about their treatment in Canada and courts and tribunals have begun to acknowledge the often deplorable conditions under which they labour and live. One such case is Logan v Ontario (Solicitor General)[3] (“Logan”), a 2022 decision of the Human Rights Tribunal of Ontario (the “HRTO”).  Logan is a significant win for migrant workers, as the Tribunal expressly acknowledged the socio-political realities of migrant workers in Canada, and how these realities create greater vulnerabilities. The HRTO found that police had directly targeted and discriminated against Leon Logan when conducting a DNA canvass, thereby exploiting his unique vulnerabilities as a migrant worker, as well as those of his peers. 54 applications were brought in total to address the discriminatory nature of the DNA canvass under review in Logan.

The Facts

In the fall of 2013, Mr. Logan, a black man from Jamaica, participated in the SAWP and worked for a white farmer in the rural community of Elgin County, Ontario. On October 19, 2013, a woman was violently sexually assaulted in her home, near the farm where Mr. Logan worked. The victim described the suspect as a "migrant worker who had an accent" and who was "between 5'10 and 6' tall, mid to late 20's and no facial hair."[4] Following her statement, the Ontario Provincial Police (the "OPP") conducted a DNA canvass on workers from the five farm properties near the victim's home. Although the canvass was voluntary, the workers did not feel that they could refuse the OPP’s request for DNA samples for comparison with the DNA found at the crime scene.

The OPP had specific physical descriptors of the perpetrator, but the officers nevertheless canvassed roughly 80 migrant workers, most of whom did not match the physical descriptions given by the victim. Mr. Logan was amongst them. Following this mistreatment, Mr. Logan advanced a claim before the HRTO, alleging that he had been racially profiled. He claimed that the OPP had violated s. 1 of the Human Rights Code[5] (the “Code”) and that his race, colour, and/or place of origin were the sole factors underlying the OPP's request for a DNA sample. 

The Main Issue

The issue before the HRTO was whether the OPP had discriminated against Mr. Logan based on race, color and/or place of origin when conducting its investigation into the sexual assault.

How the Tribunal Answered this Question 

After a 9-year legal battle, the HRTO ultimately found that the OPP discriminated against Mr. Logan on the basis of race, color and place of origin when officers collected his DNA sample, contrary to s.1 of the Code. The basis for this conclusion was that the victim had provided detailed information about the assailant's characteristics, such as height, build, age, and facial hair, which the OPP did not consider when subjecting a broad swath of migrant workers to the DNA canvass. The Tribunal found that rather than acting on the victim’s description of the assailant, the OPP improperly relied on Mr. Logan’s race, color and place of origin in deciding to investigate him and in ultimately taking his DNA.[6] Additionally, although the DNA samples were technically given voluntarily, the Tribunal held that racialized migrant workers like Mr. Logan, who are vulnerable and subject to precarious employment, cannot always meaningfully assert their rights.[7]

Section 487.05 of the Criminal Code sets out the conditions necessary to issue a DNA warrant. One of these conditions is that there must be “reasonable grounds to believe that the person was a party to the offence.”[8] The HRTO found that this criterion was not met, as the OPP failed to exclude migrant workers who did not match the physical descriptors given by the victim, such as age, height, build, and facial hair. The outcome of the investigation indicated that many other migrant workers had faced the same discrimination as Mr. Logan. Of further note, the OPP did not request DNA samples from any white farm workers or farm owners in the area.

Taking into account the realities of migrant workers in Canada

Of particular note from Logan, the adjudicator explained that the OPP’s unlawful DNA canvass was aggravated by the vulnerable status of the migrant workers. Although the OPP proceeded with a voluntary search, the investigators only approached the workers after speaking to the farm owners about their requests for DNA samples. The tribunal, drawing on expert testimony from a social science professor and adopting an intersectional approach, affirmed that the SAWP is rooted in “structural racism both historically and in the present day […] which results in vulnerabilities that impact migrant workers’ ability to assert their rights.”[9] The social vulnerabilities of migrant workers constrain them from providing free consent due to the fear of reprisal from their employers, which could result in them losing their only source of income. Furthermore, the intersection of Mr. Logan’s Code-protected characteristics of race, colour, and place of origin informs his experience in the SAWP. The HRTO affirmed that his experience as a Black man placed him at a higher risk of experiencing discrimination through the OPP’s DNA canvass, as he is part of an “easily identifiable group within the predominantly white small rural community where he lived and worked.”[10]

The Significance of Logan v Ontario

Logan's legacy is rooted in the tribunal’s readiness to incorporate socio-political arguments when evaluating Code violations. The HRTO recognized the presence of structural racism in the SAWP, aided by the expert testimony of a social science professor. As noted by the adjudicator, claims of discrimination are necessarily contextual. The tribunal’s consideration of the lived experiences of racialized migrant workers marks a significant step towards understanding the intricacies of these claims. By acknowledging broader social vulnerabilities, the HRTO has created a progressive lens through which other human rights cases involving migrant labour rights can be assessed.

[1] Statistics Canada “Agriculture and agri-food labour statistics” (2022).

[2] E.g. CBC “Jamaican migrant workers in Ontario pen open letter likening conditions to ‘systemic slavery” (2022).

[3] 2022 HRTO 1004 [Logan].

[4] Logan at para 132.

[5] Human Rights Code, RSO 1990, c H19, s (1) [Code].

[6] Logan at para 191.

[7] Logan at para 196.

[8] Criminal Code, RSC 1985, c C-46, s. 487 05(1)(C) [Criminal Code].

[9] Logan at para 93.

[10] Logan at para 93.