Via Email

June 19, 2020

RE: Addressing Anti-Black Racism in BC Policing

Dear Minister Eby, Minister Farnworth, Director Butterworth Carr, and Deputy Commissioner Strachan,

We write further to the surge in awareness of police violence, amplified by recent mass uprisings across North America. As a human rights legal organization whose mandate includes police accountability and racial justice, we wish to draw your attention to the BC context, where anti-Black and anti-Indigenous policing practices are prolific and all too often overlooked. Collectively, your positions of power in the provincial policing apparatus afford you both the ability and responsibility to address this ongoing racism.

Our calls for immediate and long-term changes to racist policing practices recognize that systemic issues have led to the over-criminalization and over-incarceration of Black, Indigenous, and Afro-Indigenous peoples. Racism in federal and provincial policing has not been adequately addressed by government and police authorities, either discretely or holistically. In Vancouver, attention has been intensified by high-profile arrests of people attending the Hogan's Alley Revival Viaduct Blockade and supporting CRAB Park Tent City. Pivot stands in solidarity with the liberation movements of Black and Indigenous people.

We urge you to seize the opportunity to change the course of BC policing before more harm is enacted on racialized communities. The recommendations contained herein can and should be taken up immediately, en route to a more substantive re-evaluation of BC’s racist policing foundation.

Global Context

Since May 2020, global uprisings have sparked in response to the recent deaths of Black and Afro-Indigenous people, including George Floyd, Tony McDade, Nina Pop, and Breonna Taylor. Parallel calls for change have been made in response to police violence against Indigenous people in Canada. Since April 2020, police have killed at least 9 Indigenous people: Eishia Hudson, Jason Collins, Stewart Kevin Andrews, Everett Patrick, Abraham Natanine, an unnamed man in Apex NT, Regis Korchinski Paquet, Chantel Moore, and Rodney Levi.

Police involvement in the deaths of Black and Indigenous people cannot be treated as an “American” issue alone, as Pivot hears on a near-daily basis from individuals living throughout the province. Anti-Indigenous and anti-Black racism abounds in Canadian policing, and BC police are not exempt. As the Supreme Court of Canada recently affirmed: “We have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities.”^[1]

Responding to this violence, a number of BC-based organizations have already demanded change from all levels of government. These organizations include Human Rights Watch,^[2] Sanctuary Health,^[3] Vancouver Sex Workers’ Rights Collective,^[4] Downtown Eastside Women’s Centre,^[5] and Black Lives Matter – Vancouver.^[6]

Racialized Policing Practices in BC

Concerns about anti-Black racism in policing dovetail with anti-Indigenous policing, including the invasion of sovereign Indigenous territory,^[7] unauthorized use of force, fatal encounters with police, and failures to adequately investigate crimes involving Black or Indigenous survivors of harm. Pivot’s 2019 report and data analysis, “17 years of police violence in Canada,”^[8] highlights the over-representation of Black and Indigenous folks in instances of fatal police violence, exposing that members of these communities face far greater risk when interacting with police, even in seemingly “mild” encounters, like street stops.

A 2018 CBC investigation^[9] found that Black and Indigenous people in Canada are “overwhelmingly over-represented” in fatal police encounters. Extrapolating from this dataset, Pivot found that 15% of fatal police encounters killed Indigenous people (when only 6.6% of the BC population is Indigenous)^[10] and 9% of fatal police encounters killed Black people (when less than 1% of the BC population is Black).^[11] Our findings are mirrored in an interim report by the Ontario Human Rights Commission in 2018, which revealed that Black people in Toronto were nearly 20 times more likely than white people to be involved in police shootings that result in civilian death.^[12] The report also found that racial profiling of Black people frequently characterized illegal street stops, questioning, and detentions, as well as illegal searches and unnecessary charges and arrests.

Anti-Racism & Pivot’s Police Accountability Campaign

In the past three years alone, Pivot has repeatedly drawn attention to anti-Black racism in policing throughout the province. All too often, our calls to action are met with the same response from those in power: a doubling down on the status quo and unwillingness to meaningfully alter harmful practices.

In 2018, Pivot released Project Inclusion: Confronting Anti-Homeless and Anti-Substance User Stigma, which calls attention to laws, policies, and systems that disproportionately impact racialized and poor communities. Project Inclusion draws attention to the effects of bail conditions, notably on Black and Indigenous communities who are adversely impacted by bail conditions, including abstinence conditions and geographic area restrictions or “red zones.” The report also drew attention to the fact that police enforcement of certain low-level offences targeting marginalized communities directly undermines personal and public health and safety. For instance, offences related to simple drug possession, sex work, and living/sleeping outdoors.

Later that year, we filed a group complaint with the Office of the Police Complaint Commissioner (OPCC) regarding the abusive behaviour of two Downtown Eastside-based police officers. We continue to represent 17 complainants throughout this process, most of whom are racialized and poor residents of the Downtown Eastside. The OPCC group complaint has illuminated the inaccessibility and lack of cultural safety characterizing the existing police complaint process for communities who are over-represented in police interactions.

Since 2019, Pivot has provided feedback to the Director of Police Services (DPS) Advisory Committee on Street Stops. Throughout this process, Pivot and the majority of other committee members have maintained that street stops (also known as street checks or carding) are a racist^[13] and illegal policing practice, and that rather than regulating it, the Province must issue a clear moratorium on the process. A similar call has recently been made to the Vancouver Police Department by the Union of BC Indian Chiefs, Hogan’s Alley Society, and the BC Civil Liberties Association.^[14] We have yet to receive a satisfactory legal justification for the practice of street stops, nor any justification that responds to the patent racism grounding the practice. The Provincial Policing Standards currently being developed by DPS to address bias in policing, including the Standard relating to street stops, do not adequately address anti-Black and anti-Indigenous racism either.

Pivot continues to receive requests for service regarding police brutality. There is an egregious gap in services for individuals who wish to make complaints to the OPCC or RCMP Civilian Review and Complaints Commission.

At this time, and as Black and Indigenous folks take to the streets to draw attention to the racism embedded in the very structure and system of Canadian policing, our concerns have reached a new level of urgency. We call on you to implement the following recommendations.

Recommendations

Access to Justice

1. Dedicate legal aid funding for a clinic to support racialized people in making police complaints, through summary advice, short service, or full representation based on the needs of the individual and the nature of the complaint.^[15]
   
   
2. Dedicate legal aid funding for family members during Independent Investigations Office investigations, Coroners’ Inquests, or independent commissions of inquiry relating to incidents of death or serious harm that may have been the result of the actions of a police officer, whether on or off duty.^[16]
   
   
3. Direct police officers to cease the practice of recommending that charges be brought against people engaged in protests and civil disobedience.
   

   Policing Priorities & Standards

4. Implement an immediate moratorium on the practice of street stops in BC.^[17]
   
   
5. Implement de facto decriminalization for simple possession of illicit substances in BC, per the recommendation^[18] of BC’s Provincial Health Officer, Dr. Bonnie Henry.
   
   
6. Direct police forces in BC to work with service providers to develop “bubble zones” around supervised consumption sites, overdose prevention sites, and other harm reduction sites with a goal to eliminate policing practices that deter site access (i.e. police presence at sites, arrests or undercover operations in and near sites, and surveillance of clientele).
   
   
7. Direct police forces in BC to cease enforcement of sex work-related offences, namely those found to be unconstitutional in 2013, including Communication, Material Benefit, and Procuring.^[19]
   
   
8. Direct police forces in BC to cease over-policing unsheltered people living in public space. Cease enforcement of charges for sleeping and camping, in public space and the displacement of tent cities.
   
   
9. Develop a new classification for police dog bites on the Use of Force Continuum, defining them as a “hard” use of force, just below the use of lethal force. Specify in regulations that police dogs are not to bite a subject unless that person is being assaultive or presents an objective risk of grievous bodily harm or death.^[20]
   
   
10. Initiate an immediate anti-racist audit of all gang-related policing in BC, including review of the Combined Forces Special Enforcement Unit of British Columbia, in recognition that Black, Indigenous, and other People of Colour are inappropriately classified as gang members by law enforcement.^[21]
    
    
11. Direct police to cease interference with Indigenous ceremonies and follow Elder-established protocol.
    

    Private Security

12. Institute immediate legislative and regulatory changes in the private security industry, in recognition of the implications of the “presumed authority” of security, particularly for Black, Indigenous, and low-income people.^[22] Directives must include the following:
    
    a) Security workers must never state or imply that they have the power to remove or ban individuals from public property, issue tickets, seize or dispose of personal property, or press criminal charges.
    
    b) Security workers must never use force in the course of their duties except to protect themselves or someone else from immediate harm, per ss. 34-37 of the Criminal Code, and that failure to comply with these limits or a misrepresentation of powers will result in a loss of licensing.
    
    c) Require companies to maintain records regarding “bans” on individuals. Records must include: time and date of any removal or ban, reasons for removal or ban, the property in question, and conditions under which the person can return to the property.
    
    
13. Prohibit the use of public funds for private security patrols on public property, including in public parks.
    

    Police Complaints & Oversight

14. Harmonize police complaint processes between municipal police and RCMP, as recommended by Justice Wally Oppal.^[23]
    
    
15. Implement a wholly civilian-staffed police accountability agency, where investigators of misconduct or criminal conduct have no prior police experience.
    

    Support for Survivors

16. Mandate culturally responsive frameworks within civilian-led oversight bodies, specifically highlighting the unique needs of Black and Indigenous survivors of police violence.
    
    
17. Ensure that victims, immediate family members, and witnesses can access community-based Victim Services programs, including benefits made available by the Crime Victim Assistance Act.^[24]
    

    Defunding the Police

18. Produce all provincial policies related to “adequate and effective levels of policing” as defined in the Police Act at section 2.
    
    
19. Immediately establish a framework for defunding the police (including municipal police and RCMP), in favour of community-led safety initiatives. Support rather than interfere with municipalities currently working to defund local police forces.

Conclusion

Given the numerous glaring and discriminatory policing practices that characterize law enforcement in BC, we eagerly await movement on the above-captioned recommendations.

We look forward to your response,

Pivot Legal Society

Caitlin Shane
Staff lawyer, Drug Policy

Meenakshi Mannoe, MSW RSW 
Criminalization & Police Accountability Campaigner

cc:  Commissioner Clayton Pecknold
      Police Complaint Commissioner

      Ronald J. MacDonald, QC
      Chief Civilian Director
      Independent Investigations Office

^[1] R. v. Le, 2019 SCC 34 at para 97.

^[2] Human Rights Watch, Those Who Take Us Away Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada (February 2013), online: https://www.hrw.org/about/get-local/toronto/report-those-who-take-us-away-abusive-policing-and-failures-protection

^[3] Sanctuary Health, Still Waiting, Still Afraid: Auditing Access Without Fear Policies in the City of Vancouver (May 2018), online: http://www.sanctuarycityvan.com/wp-content/uploads/2018/05/Audit-Final.pdf

^[4] Vancouver Sex Workers’ Rights Collective, “Written Submissions to National Inquiry into the Murdered and Missing Indigenous Women and Girls” (December 2018), online: https://www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Van-Sex-Worker-Rights-Collective-Final-written-submission.pdf

^[5] Carol Muree Martin & Harsha Walia, Downtown Eastside Women’s Centre, Red Women Rising (April 2019), online: https://online.flowpaper.com/76fb0732/MMIWReportFinalMarch10WEB/#page=1

^[6] Black Lives Matter - Vancouver “Black Lives Matter Vancouver Calls on the City to Dismantle Systems of Violence and Oppression” (June 2020), online: https://blacklivesmattervancouver.com/vancouver-dismantle-systems-of-violence/

^[7] BC Civil Liberties Association, “BCCLA and UBCIC Alarmed at Increasing RCMP Policing Powers in Wet’suwet’en” (February 9, 2020), online:  https://bccla.org/our_work/bccla-and-ubcic-alarmed-at-increasing-rcmp-policing-powers-in-wetsuweten/

^[8] Pivot Legal Society, “17 Years of Police Violence in Canada” (March 2019), online: https://www.pivotlegal.org/17_years_of_police_violence_in_canada

^[9] Jacques Marcoux & Katie Nicholson, CBC News, Deadly force: Fatal encounters with police in Canada: 2000-2017, online:  https://newsinteractives.cbc.ca/longform-custom/deadly-force

^[10] Statistics Canada, 2016 Census, “Aboriginal Peoples; BC”, online:  https://www12.statcan.gc.ca/census-recensement/2016/dp-pd/prof/details/page.cfm?Lang=E&Geo1=PR&Code1=59&Geo2=PR&Code2=01&SearchText=Canada&SearchType=Begins&SearchPR=01&B1=Aboriginal%20peoples&TABID=1&type=0

^[11] Statistics Canada, 2016 Census,  “Visible Minority; BC”, online:  https://www12.statcan.gc.ca/census-recensement/2016/dp-pd/prof/details/page.cfm?Lang=E&Geo1=PR&Code1=59&Geo2=PR&Code2=01&SearchText=Canada&SearchType=Begins&SearchPR=01&B1=Visible%20minority&TABID=1&type=0

^[12] Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (November 2018), online: http://www.ohrc.on.ca/sites/default/files/TPS%20Inquiry_Interim%20Report%20EN%20FINAL%20DESIGNED%20for%20remed_3_0.pdf#overlay-context=en/news_centre/ohrc-interim-report-toronto-police-service-inquiry-shows-disturbing-results

^[13] The Honourable Michael H. Tulloch, Report of the Independent Street Checks Review (Ontario: Queen’s Printer for Ontario, 2018) online: https://www.mcscs.jus.gov.on.ca/sites/default/files/content/mcscs/docs/StreetChecks.pdf   

^[14] Union of BC Indian Chiefs, “Organizations Call on Mayor Kennedy Stewart to Implement Immediate Ban on Racist Police Street Checks in Vancouver”, press release, (June 2020), online:  https://www.ubcic.bc.ca/call_on_mayor_kennedy_stewart_to_implement_immediate_ban_on_racist_police_street

^[15] Pivot Legal Society, Project Inclusion (2018), at page 71, online: https://d3n8a8pro7vhmx.cloudfront.net/pivotlegal/pages/1986/attachments/original/1543969275/project-inclusion-digital.pdf

^[16] Ibid.

^[17] Pivot Legal Society, Memorandum on Moratorium on Street Checks (July 2019), online:  https://www.pivotlegal.org/street_check_moratorium

^[18] Office of the Provincial Health Officer, Stopping the Harm: Decriminalization of People Who Use Drugs in BC, Provincial Health Officer’s Special Report, (April 2019), online: https://www2.gov.bc.ca/assets/gov/health/about-bc-s-health-care-system/office-of-the-provincial-health-officer/reports-publications/special-reports/stopping-the-harm-report.pdf

^[19] Canada (Attorney General) v Bedford, 2013 SCC 72.

^[20] Pivot Legal Society, Moving to Minimum Sentences (2014), online:  https://d3n8a8pro7vhmx.cloudfront.net/pivotlegal/pages/648/attachments/original/1403740129/Moving_to_Minimum_Force.pdf?1403740129

^[21] Chris Richardson, "Communicating Crimes: Covering Gangs in Contemporary Canadian Journalism" (2012) Electronic Thesis and Dissertation Repository 613, online: https://ir.lib.uwo.ca/etd/613/

^[22] Pivot Legal Society, “BC's private security laws need reform” (24 January 2013), online (blog): https://www.pivotlegal.org/bc_s_private_security_laws_need_to_be_reformed

^[23] The Honourable Justice Wallace T. Oppal, Commission of Inquiry into Policing in British Columbia: Closing the Gap: Policing and The Community, (1992) online: https://opcc.bc.ca/wp-content/uploads/2017/04/Closing_The_Gap-Recommendations.pdf

^[24] Crime Victim Assistance Act, SBC 2001, c 38.