Of Prima Facie Discrimination and Humanizing the Street Homeless

The long-dead brains of history are still quite handy when you need to brandish something with rhetorical flourish—Plato, Aristotle, Shakespeare, Milton, Locke, Adam Smith, John Stuart Mill are some obvious choices. But it’s rare that a quote at the head of a judgement is as good as what BC Supreme Court Justice Sharma gave us this past Friday in Vancouver Area Network of Drug Users v. British Columbia Human Rights Tribunal. Here’s how the reasons begin:

“Near the end of the 19th Century, the poet, author and Nobel laureate Antole France composed this oft-cited saying: ‘[t]he law in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’ This quote captures the cynicism attached to the simplistic notion that so long as everyone is treated the same, equality will exist.”

You get a pretty good sense early on for where Justice Sharma is taking this judicial review of the Tribunal decision in Pivot Legal Society v. Downtown Vancouver Business Improvement Association. The original claim was brought on behalf of Vancouver’s homeless and transient population. PIVOT, a social justice organization, and VANDU had argued that the Downtown Vancouver Business Improvement Association’s Downtown Ambassadors Program amounted to systemic discrimination against homeless people, with a disproportionately adverse impact on Aboriginal persons and people with disabilities.

The BC Human Rights Tribunal found no evidence of a nexus between any adverse impact on homeless people and a protected ground.

Justice Sharma’s reasons found the Tribunal was too onerous by applying an unduly strict standard of evidence to the third stage of the prima facie test for discrimination. The correct test for demonstrating prima facie discrimination per Moore v. British Columbia (Education), 2012 SCC 61, states that:

  1. the complainants’ group must have a characteristic protected from discrimination under the Code;
  2. they must have experienced an adverse impact with respect to the service identified in the complaint; and
  3. the protected characteristic was a factor in the adverse impact.

Justice Sharma concluded that the Tribunal findings, when analyzed under the correct legal test, do constitute prima facie discrimination:

[59] In my view, there is a significant difference between proving personal characteristics are “causally” connected to adverse treatment versus them being “a factor” in the adverse treatment. Requiring claimants to prove a causative connection elevates the legal burden on the claimant beyond what the SCC stated in Moore and would be inconsistent with the equality jurisprudence under the Charter.

[60] […] proving a causative connection imports a “cause and effect” analysis; the claimant would need to establish that the protected ground was the factor that caused the adverse treatment, rather than simply a factor. This neglects the practical reality of situations in which discrimination is found. Adverse impacts are often the result of a constellation of factors, where the protected grounds are but one factor, but a factor nonetheless. The test in Moore properly recognizes this distinction.

Justice Sharma makes good on the Gallic wisdom and liberal humanism promised by her Anatole France reference and challenges the shibboleths of the Downtown Ambassadors Program and the legislation that lets it operate.

[104] … It would be unreasonable and naïve to suggest that sleeping on public property or aggressive panhandling (or other behaviours thought to contravene the Safe Streets Act, S.B.C. 2004, c. 75, or the Trespass Act, R.S.B.C. 1996, c. 46) are behaviours that any member of the public is likely to engage in. It is understood that such behaviours are associated with people that we assume are street homeless.

The CBC broke portions of this on Saturday. Thanks to my colleague Megan Vis-Dunbar (counsel in the initial Tribunal hearing) for sharing this with me and for her summary of the Tribunal and judicial review.

Edit: Kind readers have pointed out that “Antole France” is not the correct spelling. The judgment (now also on CanLII as of this morning, April 14) should likely refer to Anatole France. He was a man of letters—and he deserves credit for each one of them! I have therefore corrected my own reference.

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