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

11 December 2024

Dear Police Complaint Commissioner Prabhu Rajan,

RE: Request for OPCC Review of Police Board Decisions - OPCC File # 2024-26600/Board File 2024-021 & OPCC File #2024-26602/ Board File 2024-022

We write pursuant to s. 172(2)(a) of BC’s Police Act, R.S.B.C. 1996, c. 367 (“Police Act”) requesting the Commissioner’s review of screening decisions by the Vancouver Police Board (“Police Board”) with regard to the above noted complaints.

Background of the Complaints

Briefly, the Complaints filed with the Police Board relate, first, to the discriminate treatment of protestors in support of Palestinian human rights at a railway blockade held on May 31st 2024. By way of background context, complaint OPCC File 2024-26600 details the excessive use of force deployed against Palestinian, Arab, and other people perceived by the police to be racialized protestors. In identifying individuals for violent repression, the VPD targeted people in kuffiyehs and forcefully engaged and detained members of the public in its efforts to stop the commemorative protest because of the content of that political expression, resulting in egregious bodily harm, intrusions on people’s equality rights, and violations of protected speech, expression, and assembly rights. Additionally, we allege that the VPD dismantled a sacred fire, and failed to accommodate Indigenous spiritual practice.

Similarly, in complaint OPCC File 2024-26602, we allege that the VPD have engaged in the ongoing surveillance of Pro-Palestine protestors through the use of unauthorized smartphone and drone technologies, resulting in breaches of people’s privacy rights, heavily motivated by individual and systemic manifestations of anti-Palestinian racism. The documented allegations centre around patterns of surveillance dating back to December 2023 that community members continue to face to this day.

These complaints follow a troubling pattern of global and domestic repression impacting the political expression, speech, assembly and association rights of people in support of Palestinian human rights. The targeting of Pro-Palestinian protestors through discriminatory law enforcement and the police use of force against racialized and other protestors in Canada and British Columbia, have been widely documented, including in recent reports to the Inter-American Commission on Human Rights and United Nations Special Rapporteur on Freedom of Opinion and Expression.^[1]

As noted in these complaints, the targeting of Palestinian protestors and allies, including but not limited to those identified by the wearing of kuffiyehs as a clear proxy for Arab, Palestinian, Indigenous, and other protected-groups’ racial, ethnic, religious and/or political beliefs, provides a clear basis for us as human rights groups to be concerned about whether or not the VPD is in compliance with their own anti-discrimination policies,^[2] BC’s Provincial Standards on Promoting Unbiased Policing,^[3] and even its statutory human rights obligations.^[4]

We have also observed a marked difference in law enforcement officials’ treatment of assemblies led by Pro-Israeli and other white ethno-nationalist groups, vis-à-vis those led by Pro-Palestinian advocates. In a similar vein, we are concerned that the Police Board’s refusal to refer both complaints for further investigation fits within a broader climate of impunity for policing violence against Palestinians, among other Indigenous communities, and this detrimentally impacts access to justice and policing accountability for directly impacted communities. This adverse impact is particularly concerning at a time when the Province is grappling with the scope of systemic racism within British Columbia’s policing agencies and the appropriateness of policing responses to pressing social issues.^[5]

Recent History of the Service and Policy Complaints

We subsequently wrote to the Board requesting the statutory basis for holding complaint 2024-021 in abeyance, and expressing our concerns that the appointed investigator may not be sufficiently independent from law enforcement to engage in a fulsome, objective investigation of the complaint.

With no response forthcoming, we write to the OPCC for review of the Police Board’s screening decisions.

For the reasons set out below, we seek the following:

• With regard to OPCC File 2024-26600, that the Police Complaint Commissioner exercise its authority pursuant to s. 172(2)(a) to review the police board decision to hold the entirety of the complaint in abeyance pending the conclusion of criminal law matters before the Provincial Court;
• With regard to OPCC File 2024-26600, that the Police Complaint Commissioner exercise its authority pursuant to s. 171(2) of the Police Act to recommend that the Police Board initiate an impartial external investigation into the VPD’s policy and practice of the discriminatory treatment of Pro-Palestinian protestors, including the use of force beyond in the context of mass detention during protest activity;
• With regard to OPCC File 2024-26602, that the Police Complaint Commissioner exercise its authority pursuant to s. 171(2) of the Police Act to recommend that the VPB appoint an independent third-party to conduct the investigation into the surveillance complaint.
• That the Police Complaint Commissioner consider these requests and provide a clear statement of support condemning the discriminate treatment and use of force against members of the public unfairly targeted and detained while exercising constitutionally valid expressive and equality rights;

Background: Sections 172 and 173 of the Police Act

As per s. 172(2)(a) of the Police Act, if the complainant is dissatisfied, either upon dismissal of a complaint, or upon the Police Board “taking a course of action under s. 171(1)(e)”, the Police Complaint Commissioner can act as an oversight mechanism by reviewing the Police Board’s decision.^[6] Pursuant to s. 173 of the Police Act, it is entitled to review decisions of the Police Board, whether or not the complainant has requested an OPCC review.^[7]

As per s. 171(2), the Police Complaint Commissioner is further empowered to recommend, of its own volition, that the Police Board initiate an investigation into the complaint if it does not choose to do so.

Request for Review by the Police Complaint Commissioner of the Police Board’s Decision re: Board File #2024-021/ OPCC File #2024-26600

The Police Board has taken few steps to ensure that basic procedural safeguards are afforded in this complaints process, including by failing to assure a fair opportunity for affected complainants to be heard. Namely, through the denial of Pivot’s delegation request on October 29th, the blocking of Pivot staff from attendance at the Police Board’s public meeting and deliberation of the complaints on October 31st, disregarding Pivot’s correspondence of November 7th 2024 to formally add BCCLA as a complainant to its complaint, providing insufficient reasons for its decisions, and by failing to provide an adequate, or any, explanation as to why the discriminatory policing allegations cannot be appropriately resolved by severing aspects of that complaint for investigation.

As noted above, the Chair of the Review Committee issued a decision in writing to hold complaint #2024-021 in abeyance pending resolution of the criminal law investigation and charges that were laid against thirteen individuals alleged to have blocked the railway on May 31st. It provided a summary of reasons in respect of its screening decision, yet failed to engage salient aspects of our complaint. While we recognize the significance of preserving the integrity of criminal law proceedings, the integrity of police oversight proceedings is no less important and accordingly we take issue with the Police Board’s decision to defer the entirety of the complaint until the resolution of those independent proceedings.

The service and policy complaint dated September 18th 2024 raises a number of legal issues relating to the discriminate treatment of members of the public during a protest blockade, which the Police Board ought to address notwithstanding criminal proceedings. As noted above, we allege that at least a hundred people were present at the blockade on May 31st when the VPD decided to violently disperse the protest. In doing so, it infringed dozens of people’s equality and liberty interests, including use of force against those advocating for Palestinian rights, and engaging in discriminatory policing in a manner that was far beyond the lawful exercise of police powers. It further failed to inquire into whether the allegations regarding accommodation of Indigenous-led, collective spiritual practice could be separately dealt with and referred for further study and/or investigation. Nothing in its reasons demonstrates that the Police Board ever considered dealing with the complaint in a manner that would appropriately resolve the individual and systemic issues of discriminatory policing it raises.

More significantly, beyond the arrests carried out that day, the VPD clearly engaged in mass detention of people in attendance at the blockade, many of whom were not arrested and who appear to have been engaged without any articulable or reasonable grounds. As the Supreme Court of Canada has established: "While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty."^[8] Especially where police engage in such excessive use of force, resulting in extensive psychological and physical harm, it cannot then be accepted that the Police Board will use ongoing criminal investigations as a reason to avoid addressing the systemic concerns relating to police use of force informed by anti-Palestinian racism against marginalized communities, particularly in a climate where the public has made growing demands for meaningful police accountability. Indeed, in this context, the Police Board’s decision to defer this systemic-level complaint can only be corrosive to public confidence in the administration of justice.

The significant and ongoing intrusions on people’s liberty interests, and the egregious harm inflicted by police that day (including the deployment of chemical grade tear gas, unauthorized neck restraints, and brutal beatings of white, Indigenous and other racialized peoples, many of who appear to have been arbitrarily detained, or otherwise adversely impacted by policing violence that day), must factor into the VPB’s reasoning as to its screening decision, which would effectively delay holding policing agencies accountable for what is clearly an excessive and discriminate policing response to ongoing political protests, assemblies, and broader struggles affirming the humanity and basic rights of Palestinians and Indigenous peoples, both globally and domestically.

In this regard, severing aspects of the complaint relating to the ongoing violations of people’s protected expressive and equality rights, and the failure to accommodate Indigenous spiritual practices, could appropriately resolve the systemic and ongoing issues raised in this complaint, while addressing the Police Board’s concerns around preserving the integrity of the existing criminal law proceedings. Nothing in the statutory framework prevents the Police Board or OPCC from promptly inquiring into the systemic issues at play, or from referring the complaints for an impartial investigation assessing the human rights implications of the discriminatory actions of police that are bound by existing anti-discrimination statutes and policies.

By comparison, the Police Board did in fact decide to refer the surveillance service and policy complaint for investigation pursuant to s. 171(1)(c) of the Police Act, despite the fact that the complaint similarly deals with breaches of VPD policies that occurred at the railway blockade on May 31st. If the Police Board is concerned about preserving the integrity of that process, it would have similarly deferred the entirety of that complaint. No where was the stipulation made by the Review Committee to limit the investigation of complaint 2024-022 in respect of the criminal law proceedings of the thirteen arrestees. If it were truly necessary, in the Police Board’s view, for systemic issues that arise from the same incident as criminal charges to be put on hold pending the resolution of those criminal matters, this decision to refer could not have been made.

Request for the Police Complaint Commissioner’s Review of the Police Board’s Decision re: Board File #2024-022/ OPCC File #2024-26602

As noted above, the Police Board issued its decision to refer complaint 2024-022 for further investigation on November 19th 2024. Neither the screening decision in respect of Board File 2024-022 (OPCC File 2024-26602) nor the Police Board’s meeting provide sufficient reasons that adequately address the concerns raised in our letter dated October 30th. In that letter, we identify substantive concerns around the potential for pro-police bias in the appointment of an investigator that is not sufficiently independent and objective from existing law enforcement, particularly given the allegations of policing violence and discriminatory policing raised in the Complaints.

As we understand, at its October 31st meeting, the Police Board passed a motion to appoint Bob Rolls to investigate complaint 2024-022 (OPCC File 2024-26602). Despite doing so, it failed to advise Pivot and BCCLA of this appointment in its screening decision of November 19th, further undermining the Police Board’s statutory requirement to notify us as complainants about the particular course of action undertaken by it.^[9] Further, Pivot and BCCLA have not since been provided with any written explanation for whether the appointee would have the requisite human rights expertise to appropriately investigate complaints raising issues of anti-Palestinian racism within a political climate of policing that is increasingly hostile to such communities.

Canadian courts have summarized the principles of reasonable apprehension of bias by emphasizing that the essence of impartiality is that a decision-maker -- typically a judge, but arguably any other administrative body exercising an adjudicative function -- must approach the case with an “open mind free, from inappropriate and undue assumptions”.^[10] It must engage in its functions in a manner that is open to persuasion by the evidence and submissions before it. Further, impartiality refers to “the absence of actual or perceived bias”, and that necessarily requires protecting the public’s confidence in the appearance of fairness in the complaints process.^[11] Given the nature of the policing accountability matters at issue, it is difficult to imagine how a former Deputy Police Chief could be sufficiently disinterested in the outcome of this investigation or have the openness required to assess the complaints before him with an open mind

Conclusion

Given the above noted submissions, we ask that the Police Complaint Commissioner use its powers under ss. 172 and 173(1) of the Police Act to review the above noted matters and recommend an impartial, external investigation without further delay.

In the alternative, we ask that the Police Complaint Commissioner exercise its powers under s. 171(2) of the Police Act to recommend an impartial and external investigation of both complaints.

Sincerely,

British Columbia Civil Liberties Association

Pivot Legal Society

Simone Akyianu
Staff Lawyer, Pivot Legal Society
[email protected]

cc:
Vancouver Police Board - [email protected]
BC Human Rights Commissioner, Kasari Govender - [email protected]
Assistant Deputy Minister and Director of Police Services, Glen Lewis - [email protected]
Chief Constable, Adam Palmer - [email protected]

encl.:
Appendix A - Police Board Decision re file in abeyance dated November 14, 2024
Appendix B - Police Board Decision re s. 171(c) dated November 19, 2024

^[1] Canadian Lawyers for International Human Rights, “CLAIHR Appeals to International Bodies on Repression of Pro-Palestine Speech” (October 5, 2024), available online: <https://claihr.ca/claihr-appeals-to-international-bodies-on-repression-of-pro-palestine-speech/>

^[2] Vancouver Police Department, Regulations and Procedures Manual, available online: <https://vpd.ca/policies-strategies/vpd-regulations-procedures-manual/> at 265.

^[3] British Columbia, Provincial Policing Standards, available online: <https://www2.gov.bc.ca/gov/content/justice/criminal-justice/policing-in-bc/policing-standards#addenda>

^[4] Human Rights Code, RSBC 1996, c. 210, s. 8

^[5] Special Committee on Reforming the Police Act, Transforming Policing and Community Safety, (3rd session, April 2022), available online: <https://www.leg.bc.ca/committee-content/CommitteeDocuments/42nd-parliament/3rd-session/rpa/SC-RPA-Report_42-3_2022-04-28.pdf>

^[6] Police Act, RSBC 1996, c. 367, s. 172(2)(a).

^[7] Police Act, RSBC 1996, c. 367, s. 173.

^[8] R v. Mann, 2004 SCC 52, at paras 34-35.

^[9] Police Act, RSBC 1996, c. 367, s. 171(3).

^[10] Yukon Francophone School Board, Education Area #23, v. Yukon (Attorney General), 2015 SCC 25, at para 36.

^[11] Ibid.

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