On September 18, 2024, Pivot Legal Society (Pivot) and the BC Civil Liberties Association (BCCLA) filed multiple complaints, under BC’s Police Act, against the Vancouver Police Department (VPD) for excessive use of force and the targeting and surveillance of people expressing support for Palestinian human rights. This particular Legal Submission is a Service and Policy complaint regarding VPD's excessive use of force at a Palestine Solidarity Event on May 31, 2024.

Read the complaint below and the joint press release.

Vancouver Police Board
2120 Cambie Street
Vancouver, BC  V56 4N6

Office of the Police Complaint Commissioner of British Columbia
5th floor, 947 Fort Street
PO Box 9895, Stn Prov Govt.
Victoria, BC  V8W 9T8

Via Email: [email protected]
18 September 2024

Dear Members of the Vancouver Police Board,

RE: Service and Policy Complaint regarding the Vancouver Police Department’s Excessive Use of Force at a Palestine Solidarity Event on May 31, 2024

We are writing on behalf of Pivot Legal Society (“Pivot”) and British Columbia Civil Liberties Association (“BCCLA”) in respect of a service and policy complaint pursuant to s. 168, Police Act, SBC 1996, c. 367. Pivot and BCCLA are legal advocacy organizations that work alongside directly impacted communities on the unceded territories of the Coast Salish Peoples, including the territories of xʷməθkʷəy̓əm (Musqueam), Sḵwx̱wú7mesh (Squamish), and səlilwətaɬ (Tsleil Waututh) Nations.

Context of the Complaint

On May 31st, 2024, at 11:30 am, municipal and federal police, including the Vancouver Police Department (“VPD”), the Metro Vancouver Transit Police, and CN Rail Police, were deployed to the intersection of Kaslo Street between East 12th Avenue and Grandview Highway, to monitor, surveil, stop and detain Pro-Palestinian demonstrators. That day, nearly 100 community members were gathered in a political blockade of Canadian National Railways (“CN Rail”) in East Vancouver. The demonstration was an intersectional and intergenerational community gathering involving the laying of 303 children’s clothes on CN Rail tracks. While this community was commemorating the over 15,000 children killed in Gaza amidst the military occupation and genocide of Palestinians, the VPD brutalized dozens of community members, later resulting in 13 arrests and charges relating to mischief under the Criminal Code, RSC, 1985, c. 46.

The brutal repression and excessive use of force by police against people expressing concern for Palestinian human rights that day, cannot be understood outside of what the International Court of Justice has determined is a plausible case of genocide in Gaza through Israel’s commission of genocidal acts that violate the Genocide Convention. Various international bodies, including the UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, have recognized that the military occupation of Gaza constitutes an unfolding genocide and “unparalleled humanitarian catastrophe”. Israel’s bombardment and continual blocking of humanitarian aid, shelters, access to land, water, education, and other basic necessities, including a structurally induced famine, have precipitated Palestinian solidarity movements, protest encampments, and demonstrations both domestically, and globally.

The political blockade is part of many Palestinian, Jewish, Arab and other groups’ political expression in support of Indigenous peoples’ rights globally and in Palestine, namely the rights to self-determination and right to return to their homelands. These demonstrations are also frequently grounded in support for Indigenous peoples on Turtle Island, given the parallels between the occupied Palestinian Territories and the historical and ongoing settler occupation of Indigenous peoples in so-called Canada. The VPD’s violent dispersal of demonstrators on May 31st is particularly concerning given the long history of police enforcing colonial violence against Indigenous, Black, racialized peoples and their allies. The excessive use of force inflicted on demonstrators must therefore be understood as part of an egregious pattern of systemic racism in policing, which includes anti-Palestinian racism, a particular form of anti-Arab animus that excludes, demeans, dehumanizes, defames, and stereotypes Palestinians as inherently antisemitic or hostile to democratic values, and/or justifying violence against them.^[1]  

Excessive use of force by the VPD

As you might know, the VPD held a line facing the demonstration until 2:30 pm on May 31, 2024. At that point, police instructed people to move back and clear the railway. Minutes later, police gave a second dispersal order, but instead of providing an opportunity for the crowd to safely disperse, they violently rushed at a group of nearly 100 people, that included Palestinian elders, parents, students, and youth. Police closed in on both ends of the demonstration, effectively kettling a large crowd attempting to follow the dispersal order.

The VPD, including their Emergency Response Team, simultaneously began to target and detain everyone perceived to be involved in the demonstration. Publicly available media reports show extensive forms of policing violence were inflicted on demonstrators, including:

1. deploying military grade pepper spray;
2. police in blue gloves punching, kicking, grabbing and violently dragging people attempting to safely disperse;
3. strangling and choking a person to the point of them requiring medical attention;
4. punching a pregnant Palestinian person even after the person announced they were pregnant;
5. grabbing an elderly person off of a public sidewalk;
6. using multiple police officers to arrest youth on sidewalks; and
7. standing on the backs of cuffed citizens and placing knees on necks (in contravention of VPD’s own policy on restraints).

The need for accountability under the BC's Police Act

Given that police investigate civilian complaints with little meaningful redress for affected community members, we request that the Board initiates an investigation into the events of May 31st, pursuant to s. 171(1)(c) through an independent third party with expertise in human rights, and provides a report of same to the Board, as well as Pivot and BCCLA as complainants. We ask that the Board moves urgently on this complaint; this includes promptly exercising the powers available to them under s. 171(1) of BC’s Police Act.^[2] In addition, we request reasons as to the dismissal, if any, of this complaint, and full disclosure of all orders and reports pertaining to the VPD’s use of force on May 31st 2024, regardless of whether the Police Board dismisses the complaint.

In light of the systemic limitations with police oversight set out in BC’s Police Act, we ask that the Police Complaint Commissioner use their oversight powers to carefully follow this complaint. This includes exercising their powers to recommend an investigation if the Board declines to do so, and to request regular status reports^[3] to be shared with the complainants. We further ask that the Commissioner exercise their authority under s. 173 of the Police Act to recommend to the Board changes to service and policy, including adopting a policy of non-enforcement relating to protest activity (i.e., the exercise of free expression and assembly rights) of environmental, racial justice and Indigenous land defenders, and a blanket prohibition on the police use of force against historically marginalized communities involved in protests.

This complaint concerns three issues flowing from the VPD’s excessive use of force:

1. Violations of protected constitutional and Charter rights, including free expression and assembly;
2. Discrimination and the discretionary exercise of police powers for an improper purpose;
3. Failure to accommodate Indigenous peoples’ protocols in relation to sacred fire and spiritual practice.

1. Violations of protected constitutional and Charter rights, including free expression and assembly

At Canadian law, which largely operates in denial of Indigenous laws, CN Rail is the occupier of the railway tracks situated in East Vancouver. As a federally regulated entity, it is governed by local and federal laws such as the Canadian Charter of Rights and Freedoms (“Charter”), including rights to free speech, expression and assembly. The blockade was a commemorative demonstration by community members honouring the lives of Palestinian children and families killed by Israel’s ongoing occupation of Gaza. People were gathered, engaged in spiritual practice, convened around food, songs, and sacred care from Palestinian elders and an Indigenous firekeeper. Nothing about the content, method and location of this demonstration removes it from basic constitutional protections under s. 2(b) of the Charter.^[4]

Briefly, expression in support of Palestinian human rights is protected speech, and the political speech of marginalized groups, including those asserting the rights of Indigenous Palestinians, whose families are facing a devastating genocide, is a critical aspect of the political expression that enriches our democratic society. As recognized by the Supreme Court of Canada (“SCC”), it is “a recipe for a police state, not a free and democratic society” when police powers intrude upon basic rights to liberty, or other constitutional rights.^[5] To do so creates expansive conditions for “profound intrusions on liberty with little societal benefit”.^[6] Part of the VPD justification for their violent tactics was a claim that “some members of the group became hostile” but this is a vague allegation. The VPD cited no imminent risk of harm, nor any specific, identifiable harm that the arrests and detentions sought to prevent.

Police powers have historically, and in this violent dispersal of the railway blockade, been used to target and repress Pro-Palestinian protests. The excessive use of force by the VPD follows a long trajectory of suppressing political dissent relating to the dispossession of Indigenous peoples globally, and attacks on free expression in relation to Palestinian rights and freedoms more specifically. It is not enough for police or those seeking to clear protesters to allege violence within demonstrations invoking Palestinian rights. In a 2024 decision concerning a Palestine solidarity encampment^[7] the Ontario Superior Court found that the university had not established a strong prima facie case relating to purported violence, nor anti-semitism, in respect of the encampment. In any case, the burden would rest on the police to justify limits on people’s expressive rights, and particularly on the free expression and assembly rights of marginalized groups who’ve endured historical and ongoing policing violence.

2. Discrimination and the discretionary exercise of police powers for an improper purpose

The potential for police abuse within protest activity, preventative, and low-visibility police interactions is well documented.^[8] It is common ground that if one of the purposes motivating a detention or arrest is improper, then that police action is unlawful.^[9] VPD cannot lawfully target a group or individuals based on their perceived race, colour, national or ethnic origin, religion, and/or political beliefs. In our view, the stops and arrests on May 31st were selective, and designed to suppress political expression in support of Palestinian life.

The VPD has a legally mandated obligation to respect people’s rights to equality without discrimination, both under s.15 of the Charter and under s. 8 of BC’s Human Rights Code. Yet, the VPD plainly targeted people at the blockade wearing kuffiyehs, a head covering that demonstrates a categorical commitment to human rights and solidarity with Indigenous Palestinians. While people attempted to follow dispersal orders and safely leave the area, police targeted demonstrators in kuffiyehs because of the political content of their expression, and assaulted and dragged their bodies on public streets, sidewalks and grassy areas. In doing so, police detained and arrested people for their race, national or ethnic origin, religion and political beliefs.

BC’s own Provincial Policing Standards prohibit arbitrary stops and biased policing.^[10] Indeed, the VPD has a clear legal “obligation to ensure that their interactions with the community members […] must be consistent with the Canadian Charter of Human Rights and Freedoms (sections 7, 9, 10 and 15) and the values they reflect, including the right to be free from arbitrary arrest and detention, to move freely in society subject only to reasonable restrictions imposed by law, and to equal protection and benefit of the law, without discrimination.”

The Promoting Unbiased Policing Section further mandates that “the Board, or the Commissioner must ensure that: (1) The duty of all employees to deliver services impartially and equitably, in a manner that upholds human rights, and without discrimination based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, gender identity and expression, political beliefs, types of employment, economic or social standing is communicated to all employees of the police force.” Clearly, the VPD did not follow its own policies in respect of use of force and unbiased policing that day.

3. Failure to accommodate Indigenous peoples’ protocols in relation to sacred fire and spiritual practice

We were equally dismayed by the egregious dismantling of a sacred fire held communally that day. As we understand, VPD ignored clear requests to accommodate Indigenous protocols relating to the sacred fire, and at least two police officers walked off with the fire pit, and confiscated spiritual belongings used to maintain the ceremonial space. Dismantling a sacred fire in that manner and seizing belongings needed to maintain Indigenous specific-protocols, reflects a grave violation of Indigenous rights, and runs counter to provincial and international commitments to uphold Indigenous peoples’ rights to spiritual and religious traditions as recognized under BC’s Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c. 44 (“DRIPA”) and the United Nations Declaration of the Rights of Indigenous Peoples (“UNDRIP”).

The VPD is bound by BC’s Human Rights Code and the Charter, yet failed to accommodate protected religious expression. The VPD has a mandated duty to accommodate religious and Indigenous spiritual practice, up to the point of undue hardship. This necessarily includes providing opportunities and places to worship, and access to materials needed to do so. This is particularly important for marginalized communities who endure settler colonialism, Islamophobia and anti-Indigenous sentiment. The action of the VPD on May 31, 2024 could certainly constitute grounds for violations of equality rights under s. 15 of the Charter, and s. 8 of BC’s Human Rights Code on the basis of grounds such as religion, Indigenous identity, race, and national or ethnic origin.

Conclusion

It is incumbent on the VPD to justify its invasive exercise of police power, particularly since there is no police power to arrest or detain an identifiable group of people on the basis of protected grounds, such as race, religion and national or ethnic origin. The detentions were not necessary to maintain or prevent a purported breach of the peace, and, at minimum, the police could have considered less intrusive means, such as engaging in consultation with demonstrators, clearly informing demonstrators whether police were enforcing an injunction, and providing a clear avenue for people to safely disperse. Given the extent of the police brutality that day, it cannot reasonably be stated that the VPD’s use of force was legal or constitutional.

Ultimately, Pivot Legal Society and BCCLA believe these concerns cannot and should not be addressed through additional expenditures, including on police anti-bias or cultural competency training. The concerns set out above are rooted in the well-documented overpolicing of historically marginalized communities and their allies. We urge the Board to exercise their authority over department finances and police policy to limit the budget, power and responsibilities of police.

Sincerely,

Lyndsay Watson, Legal Director
Pivot Legal Society

With support of:
British Columbia Civil Liberties Association

cc:
BC Human Rights Commissioner, Kasari Govender
Assistant Deputy Minister and Director of Police Services, Glen Lewis
Police Complaint Commissioner, Prabhu Rajan

^[1] Majid, Dania, Anti-Palestinian Racism: Naming, Framing and Manifestations (2022), Arab Canadian Lawyers Association, available online: <https://www.canarablaw.org>.

^[2] Police Act, RSBC 1996, c. 367, s. 171(1).

^[3] Police Act, RSBC 1996, c. 367, s. 171(2) and (4).

^[4] Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62 at para 58; see also Figueiras v. Toronto (Police Services Board), 2015 ONCA 208 at paras 68 & 71.

^[5] Fleming v. Ontario, 2019 SCC 45 at para 98.

^[6] Fleming v. Ontario, 2019 SCC 45 at para 83.

^[7] City of Vancouver, COUNCIL MEMBER’S MOTION - 4. Decriminalizing Poverty and Supporting Community-led Safety Initiatives (2020, July 7), online: City of Vancouver https://council.vancouver.ca/20201007/documents/pspc20201007min.pdf, at p. 36-37

^[8] See for example, R v Le, 2019 SCC 34 at para 106. Figueiras v Toronto (Police Services Board), 2015 ONCA 208 at para 128.

^[9] R v Clayton, 2007 SCC 32.

^[10] British Columbia, Provincial Policing Standards (2020), available online: <https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/police/standards/6-2-1-police-stops.pdf>.

Download the complaint