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13 Hum. Rts. Dig. 1 (2012)

handle is hein.journals/hurtsdg13 and id is 1 raw text is: Hun in Rig `s Digest Vol. 13 No. 1 y / February 2012 PUBLIC SERVICES AND FACILITIES - public space - discriminatory treatment by security personnel - defini- tion of public services and facilities - INTERPRETATION OF STATUTES - definition of customarily available to the public' - ABORIGINAL PEOPLES - harassment - discriminatory treatment in provision of public services - discrimination based on stereotype RACE, COLOUR AND PLACE OF ORIGIN - discriminatory provision of public services - racial slurs and harass- ment - discrimination based on stereotype - DISABIL- ITY - discriminatory treatment of the disabled - stereo- types - DISCRIMINATION - adverse effect discrimina- tion - direct discrimination - Meiorin test - stereo- types SYSTEMIC DISCRIMINATION - definition of systemic discrimination - pattern of conduct discriminatory on the basis of disability and race - BURDEN OF PROOF - elements of a prima facie case - COMPLAINTS - trivial, frivolous, vexatious or made in bad faith The B.C. Human Rights Tribunal ruled that the Pivot Legal Society (Pivot) failed to establish a prima facie case of discrimination in a complaint filed against the Down- town Vancouver Business Improvement Association (DVBIA). Pivot filed a complaint on behalf of a class of persons who are or appear to be street homeless and/or drug addicted and engaged in rough sleeping, sitting or lying down in public spaces, panhandling, vending, begging or binning, or other behaviours related to those personal circumstances, within the geographical jurisdiction of the DVBIA. Pivot alleged that the DVBIA Ambassadors Program discriminated against this class of persons on the basis of race, colour, ancestry, and mental or physical disability by removing them from places that were public property, or facilities customarily available to the public, because they were considered undesirable. The DVBIA contracts the services of the Ambassador Pro- gram from a security company. The Program is paid for by the City of Vancouver. The Ambassadors, who wear an identifiable uniform, patrol in the Downtown Vancouver area. They have no authority to enforce the law, but they regularly remove people by talking to them, waking them if they are sleeping, informing them of any law that they appear to be breaking, and encouraging them to move on. Ambassadors call the police if they decide that it is warranted. The Ambassadors keep a database that includes entries for all encounters, with time and place, type of encoun- ter, and result. Information from this database was pro- vided to Pivot so that it could analyze the information regarding the Ambassadors activities. No direct testimo- ny from members of the class who had been removed by Ambassadors was presented. The Tribunal concluded that Pivot did not make out a prima facie case of discrimination. The com- plainant was required to show evidence of practices or attitudes that have, whether by design or im- pact, the effect of limiting an individual's or a group's right to the opportunities generally available because of their membership in one or more protected groups. Pivot needed to show that the members of the class be- long to a protected group; that they have experienced adverse treatment; and that there is a connection or link between the adverse treatment and the protected grounds. The Tribunal accepted evidence that among the home- less and street people, Aboriginal persons are over- represented, as are persons with addictions and mental or physical disabilities. The Tribunal concluded that members of the class belong to groups protected by the Code, and that these groups are disproportionately rep- resented among the street homeless. The Tribunal accepted that public parks, sidewalks and alleys are facilities customarily available to the public within the meaning of s. 8 of the Code. It also found that alcoves and indentations in the footprint of some public buildings are areas customarily available to the public. The Tribunal determined that being asked to leave a public park or other area customarily available to the public, especially when people are sleeping or resting, and when an Ambassador stands by to make sure that the person leaves the area and does not return, consti- tutes adverse treatment. Such requests, in and of them- selves, communicate, in part, that the individual is social- ly undesirable. In addition, where the individual actually leaves the area, there is a loss of use and enjoyment of public space, which also constitutes adverse impact. Despite this ruling, the Tribunal concluded that, in the absence of testimony from members of the class, Pivot did not show the connection or link between the adverse treatment and membership in the class. Pivot established that the Ambassadors actions are targeted to the home- less population, which is disproportionately composed of members of protected groups, and that some of these CANADIAN HUMAN RIGHTS REPORTER PUBLISHER OF CANADIAN HUMAN RIGHTS LAW In the absence of testimony from homeless persons, Pivot did not show that there was actual adverse treatment when Ambassadors removed people from public areas. 1-10

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