Release: BC Court Decision Leaves Street Homeless Vulnerable

VANCOUVER – Yesterday, the BC Court of Appeal (BCCA) released its judgment in a case about discrimination against Vancouver’s street homeless population. The Court upheld the 2012 dismissal of a human rights complaint brought on behalf of the population of homeless in downtown Vancouver. In many ways, this case is about equal access to human rights protections for homeless people in BC.

In 2010, the BC Human Rights Tribunal heard a complaint brought by the Vancouver Area Network of Drug Users (VANDU) on behalf of street homeless people who had been repeatedly harassed and removed from public spaces in the downtown core by the Downtown Ambassadors, a private security program operated by the Downtown Vancouver Business Improvement Association (DVBIA). The complaint alleged that the Ambassadors’ practice was discriminatory because street homeless people, as a group, are largely made up of Indigenous and disabled persons.

The Tribunal dismissed the complaint, saying that no evidence had been presented that connected the harm suffered by the group to their status as disproportionately Indigenous and disabled persons. VANDU sought a review of the Tribunal’s decision to the BC Supreme Court (BCSC). The BCSC judge found that the removals of homeless persons from public spaces constituted discrimination under the BC Human Rights Code (the Code). The DVBIA appealed the BCSC judgment to the BCCA.

The BCCA upheld the Tribunal’s decision to dismiss the complaint. The Court unanimously found that, while the actions of the Downtown Ambassadors had negatively impacted the street homeless population, and that Indigenous and disabled persons (groups protected by human rights law) are over-represented in the street homeless population, the evidence presented was not enough to show that Indigeneity and disabled status were factors in the negative treatment experienced by the group to show discrimination under the Code.

West Coast LEAF (Women’s Legal Education and Action Fund) intervened in the case in coalition with the Community Legal Assistance Society (CLAS) at both the BCSC and BCCA levels to highlight the impact of harassment, removals and exclusions on the marginalized population of street homeless in Vancouver and on the need for a flexible and contextual approach to proving discrimination in human rights law. We argued that the disproportionate impact of the removals on Indigenous people and people with disabilities was sufficient to invoke the protection of human rights law.

“Members of the street homeless population impacted by the Downtown Ambassadors program face multiple, intersecting barriers to equal protection under the law. The complaint was brought on behalf of the group of street homeless because it would be next to impossible for members of this population to bring individual complaints,” says Raji Mangat, West Coast LEAF’s Director of Litigation. “This case was a missed opportunity to improve access to justice – and particularly access to human rights protections – for street homeless persons and other marginalized populations.”

“It is clear from the data before the Tribunal and the courts that the Downtown Ambassadors’ practice of removing disproportionately Indigenous and disabled people from public spaces harms the very people the Code is intended to protect. Public space belongs to all of us, equally.”

Importantly, West Coast LEAF believes that yesterday’s judgment leaves open the possibility that, in a future case, the type of treatment experienced by the homeless population in this case may be regarded as discriminatory under human rights law.