Redshirts didn’t discriminate in homeless ‘removals’
The B.C. Court of Appeal has reinstated a 2012 Human Rights Tribunal ruling that found there wasn’t enough evidence to prove Downtown Ambassadors discriminated against the homeless.
In a decision published Wednesday, the province’s top bench said the tribunal’s reasoning and its six-year-old judgment about the redshirts urging people to move along was entitled to deference.
But the lawyer for the Vancouver Area Network of Drug Users, Jason Gratl, who brought the complaint a decade ago, said he is recommending an appeal to the Supreme Court of Canada.
“In my view, the Court of Appeal was unnecessarily cautious in requiring proof beyond the strong statistical connection between homelessness and mental health, illicit drug addiction and historical oppression of Aboriginal people,” he said.
“If someone deliberately targets the homeless for removal from the downtown, as the (Downtown Vancouver Business Improvement Association) has done, they ought to know that they are effectively harming Aboriginal people, the drugaddicted and people with serious mental-health issues.”
The homeless face significant challenges in simply living their daily lives, the unanimous decision of the court acknowledged: “For them, downtown storefronts, alcoves and parks may represent the safest and most available places to spend their time and to sleep.”
Still, the tribunal was entitled to find that the Vancouver Area Network of Drug Users failed to establish that the adverse treatment meted out was “because of race, colour, ancestry or physical or mental disability.”
“Patrolling ambassadors would look for individuals who appeared to be engaging in certain unlawful activities — open use of drugs, trafficking, panhandling in an aggressive manner, or trespassing,” explained Justice Harvey Groberman, who was supported by colleagues David Harris and Lauri Ann Fenlon.
“Upon finding such a person, the ambassador would advise them of the apprehended breach of the law, and ask that they cease the activity or leave the area. Often, the ambassador would provide the person with an information sheet regarding the availability of food and shelter. If the person was not compliant with the ambassador’s requests, the ambassador might threaten to call the police.
“In undertaking ‘removals,’ the ambassadors confronted people verbally, but did not touch or physically move them. Rather, they relied on the compliance of those targeted. At times, ambassadors would verbally wake sleeping people and request that they move. The tactics employed by the ambassadors often made their targets uncomfortable, and they were typically successful in moving them along.”
The complaint dated back to a stretch between 2000 and 2008 when the Downtown Ambassadors program was contracted out and they wore red attire.
The Vancouver Area Network of Drug Users originally alleged the ambassadors were acting as “the homeless police,” telling the indigent they were not welcome.
The group argued that because First Nations and people with disabilities were disproportionately represented among the homeless, the program discriminated on the basis of race, ancestry, colour and physical and mental disability.
The downtown association — which does not include Yaletown, the West End, Gastown, Chinatown or the Downtown Eastside — maintained the redshirts were paid to help the needy and tourists while also protecting property.
The tribunal concluded the Vancouver Area Network of Drug Users did not establish a “connection or link” between being targeted for “removal” and a prohibited ground of discrimination.
On judicial review in 2015, a B.C. Supreme Court judge quashed the dismissal of the complaint, finding that the tribunal erred in requiring a “connection or link.”
It ought to have adopted a more “contextual and nuanced approach,” Judge Neena Sharma said, in which discrimination could be proven by showing that the group adversely affected included members of protected groups in numbers that were disproportional to their percentage of the general population.
A prohibited ground need only be a “factor” and the statistical correlation was sufficient to establish that such grounds were a factor in this case, she added.
“In my view, the judge erred in her interpretation of the law,” Groberman said, adding that “some of the judge’s comments about the ‘social context’ of the case appear to misconstrue the issues.”
A request for comment from the Downtown Vancouver Business Improvement Association was not returned by deadline.