Tribunal member qualifies "Downtown Ambassadors" decision
We’ve waited for over a year for a decision in the Human Rights case we brought against the Downtown Vancouver Business Improvement Association alleging that their Downtown Ambassadors private security program has a discriminatory impact on people who appear homeless. Given the long wait, I was caught off guard when I learned the decision had been posted online yesterday. My surprise was followed by disappointed when, upon glancing at the decision, I saw that the BC Human Rights Tribunal had dismissed the complaint.
But this morning, I took a couple of hours to read the whole 170 page decision and my feelings started to change. Although the complaint was dismissed in the end, I believe that the principles that lead us to take on this case were well understood by the Tribunal Member who heard it and that those concerns are refelected in the decision.
In the simplest terms, we were arguing that the Ambassadors program has a disproportionate negative impact on homeless people. While homeless people are not explicitly protected by BC’s Human Rights legislation, we argued that they are disproportionately Aboriginal and/or living with a disability, both of which are protected grounds. We asserted that asking people who were, or who appeared to be, homeless to move or otherwise making them uncomfortable in public space or spaces experienced as public but most Vancouverites is discriminatory and is therefore a violation of their human rights.
In order to substantiate a complaint under the BC Human Rights Code, the Tribunal must be convinced that systemic discrimination has occurred. This means that a person or class of persons has been discriminated against in relation to a service or facility customarily available to the public and that the party who experienced the discrimination falls under one of the protected grounds laid out in the Human Rights Code. Finally, to establish that a human rights violation has occurred, the Tribunal Member must find that there is a direct link between the discrimination and the person’s status as a member of a protected group.
In this case, Tribunal Member Tonie Beharrell found that our evidence did not meet the requirements of the final test, however, as this excerpt from his decision demonstrates, that does not mean the concerns we raised were not valid:
I find that the complainants have not established a connection, or link, between the adverse treatment experienced by members of the Class and their membership in a protected group. Thus, they have failed to establish a prima facie case of discrimination in relation to the actions of the Ambassadors. As a result, the complaint as against both the DVBIA and the City must fail. I do, however, add the following comments.
In their argument, the DVBIA argued … because the Ambassadors Program does not target particular individuals, but particular behaviour that is unlawful or illegal (trespass to property, aggressive panhandling, open drug use, etc.). My finding that the complainants have not established a connection between the adverse treatment alleged and a prohibited ground of discrimination should not be taken as a finding that I accept the DVBIA’s assertion in this regard. In particular, I note that the evidence in relation to Portal Park raises the potential that the Ambassadors were not acting solely on the basis of illegal behaviour, but were also targeting certain types of individuals. I also note that the removal of individuals under the purported authority of Authorizations is, intuitively, much more likely to occur with respect to individuals who are or appear to be members of the Class than with other members of the public.
One of the greatest challenges in addressing low income people's concerns about the Downtown Ambassadors program, and private security patrols more generally, is that very marginalized people are unlikely to report these types of experiences, and are even less likely to be in a position to committee to taking legal action. In the end, Justice Beharrel did not feel he had the direct evidence required to substantiate the complaint, however, we was sympathetic to the challenges homeless people face in trying to bring forward complaints:
The Class is made up of some of the most vulnerable and marginalized individuals in British Columbia. One of the reasons that the Code provides for representative complaints is to permit individuals who, individually, may face barriers in bringing human rights complaints to more easily coordinate and obtain assistance in doing so. In this complaint, the role of Pivot and VANDU as representatives was to coordinate the Class and to bring forward relevant evidence. In the end, there was no evidence from any member of the Class directly affected by Ambassadors’ actions. While I fully accept that the complainants’ task in this regard was an extremely sensitive and challenging one, the evidence before me was simply not sufficient to establish discrimination.
It is important to note that note that homeless and under-housed people report problems with many private security companies, not just the Ambassadors. Since we brought this complaint against the DVBIA’s Downtown Ambassador program, we have had a number of individuals come forward to launch human rights cases that go beyond verbal discrimination and include allegations of serious injuries and illegal detention.
For us, the best outcome from this case would be that people feel supported in coming forward to talk about negative experiences with private security, not just related to use of force or detention, but also in cases where they feel they have been discriminated against in other ways such as being asked to leave spaces where others congregate without being bothered. We also hope that all private security companies will take this decision as a warning that it is critical that they train their people not to overstep the bounds of their authority and recognize that discrimination is about more than overt use of threats or force.