BLACK LIVES MATTER! BC Human Rights Tribunal Finds Discrimination Against BIPOC

TL;DR: Racism is widespread in BC, as evidenced by cases heard at the Human Rights Tribunal, and there is a better way forward.

The violent death of George Floyd under the knee of police officer Derek Chauvin in Minneapolis triggered mass protests in the United States and calls for action to address systemic racism worldwide. In what is now known as British Columbia (BC), citizens, activists, politicians, and lobbyist groups have been rallying for change within our own systems. These calls to action have been dismissed by some who claim that racism either does not exist in BC or is not as big of an issue in BC as it is in the United States. For example, on June 17, 2020, Jagmeet Singh (leader of the New Democrat Party of Canada and Member of Parliament (“MP”) for the Riding of Burnaby South), was ordered out of the House of Commons (the “House”) after he refused to apologize for calling Bloc Quebecois MP Allain Therrien racist. Singh made a motion asking the House to recognize that there is systemic racism within the Royal Canadian Mounted Police (“RCMP”) force, he asked that the RCMP release all “use of force reports and the associated settlement costs,” and he called for an “increase in non-police investments in non-violent intervention, de-escalation, and mental health and addictions supports,” among other things. Therrien rejected the motion, so it was not passed, and that is when Singh called him racist.

Writer, activist, and comedian Baratunde Thurston, in his April, 2019 TED Talk, “How to Deconstruct Racism, One Headline at a Time,” provides a framework for analyzing how to deconstruct racism in a way that is inclusive, rather than discriminatory or dismissive. He examines the “phenomenon of white Americans calling the police on black Americans who have committed the crimes of … eating, walking or generally ‘living while black.'” He breaks down news headlines in relation to this phenomenon and reveals that each one is defined by a 1) subject, 2) action, 3) target, and 4) activity. This is the structure to white supremacy. For example, the following can be broken down as follows: White Woman [subject] Calls Police On [action] Eight-Year-Old Black Girl [target] Selling Water [activity]. This headline is real, by the way. Thurston argues that we need to “level up” and change the action. For example, for the story to look more inclusive, the headline would read: White Woman [subject] Buys All Inventory From [action] Eight-Year-Old Black Girl [target] Selling Water [activity]. When we level-up and change the action, we change the story, which “changes the system that allows those stories to happen” and we “write a better reality for us all to be a part of.”

Therrein’s rejection of a motion partly to recognize that there is systemic racism within the RCMP is just one example of calls to action against systemic violence being dismissed in Canada. Contrary to these dismissals, racism is pervasive in the RCMP, “Canada” generally, and more specifically, here on the West Coast. This blog post outlines just some of the recent findings of racial discrimination in the BC Human Rights Tribunal (the “BCHRT”). The BCHRT is responsible for hearing complaints made under the BC Human Rights Code, RSBC 1996 c. 210, which prohibits discrimination against people in certain areas of daily life. In this post, I demonstrate the pervasiveness of racism in BC by reflecting on cases over the last decade where the BCHRT has held that someone from the Black, Indigenous, and People of Colour (BIPOC) community was discriminated against based on their race. After summarizing four cases, I use Thurston’s framework to demonstrate how the cases could have been inclusive rather than discriminatory.

Case Summaries

Balikima obo Others v. Khaira Enterprises and Others, 2014 BCHRT 107 (“Balikima“)

In this 2014 case, the complainant tree planter was successful in alleging that his employer discriminated against him and at least 55 other Black tree planters in BC’s interior on the basis of their race. Per paragraph 8 of the decision, the allegations included “‘deplorable’ living conditions, inappropriate, inadequate and scant food, slave-like working conditions, consistent exposure to racial taunting and harassment, violent behaviour (in particular by Sunny), inadequate or no payment of wages, and sexual harassment” of one person in particular. Several of the workers testified at the hearing that the conditions at the tree planting camps were slave-like.

Ultimately, the tribunal did not find that all of these allegations were made out, largely because according to the tribunal, South Asian and white employees had to work in conditions just as terrible as those the Black employees worked in. However, the tribunal found that the employer discriminated against the employees by taunting them nearly daily with racial slurs like the N word and “lazy dogs.” The employer also did not pay them in full, but did pay special friends of their principals and white workers in full. One of the principals of the employer company sexually harassed a white woman by telling her “move your pussy,” calling her a “lazy pussycat,” telling her he’d marry her if she wore purple underwear, staring at her backside when she turned around, and telling a Black worker she was in a relationship with that his “lips would turn red” from sucking her and that he should “put a little Colgate on his dick and fuck her.”

An expert in anti-black racism testified on behalf of the complainants in the case. The Court noted her evidence about racism in Canada as follows:

[479]      Dr. Bernard testified that black men and women coming as refugees to Canada have expectations that it will be a safe haven and hopefully a better place to live and raise a family. In Africa, Canada is seen as the Promised Land.

[480]      The actual experience is not as nice. Their qualifications are not recognized in Canada. A racism violence health study carried out between 2002 and 2007 identified that highly educated blacks are the most under-employed. They were least likely to have employment in their field of expertise; many had to return to school to be retrained. Some could not afford that and, as a result, took jobs to support their family, hence the under-employment.

[481]      Other research looked at the experience of witnessing racism. The conclusions were that witnessing racism was just as damaging as experiencing it. What was observed was the everydayness of racism. This all had an impact on the physical, mental, emotional and spiritual health and well-being of African Canadians.

[484]      It is suggested that the everydayness of racism shows up in employment. Black Canadians may change their name to have a better opportunity to find employment. Their ideas are minimized in the workplace. They are given the worst jobs in the workplace. Typically, concerns they take to supervisors, in most cases, are not addressed which makes them feel undervalued, worthless, desperate and trapped.

Ultimately, the Tribunal held that in this case, there were “open racial taunts and clear distinctions in the areas of payment of wages drawn along racial lines which equally clearly establish the nexus for more subtle issues such as toilet arrangements in Golden.” It ordered that the employer cease contravening the Human Rights Code and pay each of the 55 or more workers $10,000 for injury to their dignity and self-respect plus $1,000 per 30-day period worked or portion thereof between a certain 3-month period.

Smith v. Mohan (No. 2), 2020 BCHRT 52 (“Smith“)

This case is summarized in my post “Landlord Ordered to Pay Indigenous Tenant $23,000 for Discrimination Over Smudging.” The BCHRT issued its reasons for deciding that a landlord contravened the BC Human Rights Code by making discriminatory statements to his Indigenous tenant and attempting to evict her after learning that she smudged in her apartment. The landlord in this case made various comments towards the complainant which were based on stereotypes about Indigenous peoples and which she found exhausting and burdensome. For months, he fought with her over whether she could smudge, and ultimately, she had no meaningful choice but to move out of her home. The Tribunal ordered the landlord pay the complainant just over $23,000 for lost wages, expenses, and injury to her dignity, feelings, and self-respect.

Campbell v. Vancouver Police Board No 4, 2019 BCHRT 275 (“Campbell“)

In this 2019 case, the Vancouver police responded to a call about a man in distress. When an officer arrived, the man said that a young woman had been chasing him with a knife. He said that the young woman was with a young “Native” man. The police found a young man who they thought was the subject. He was the BCHRT complainant’s son. The complainant happened to be in the area walking her dog. She saw her son and the police vehicle and approached the scene to find out what was happening. More officers and police vehicles came. The tribunal held that the officers treated the complainant mother adversely based on the following:

  • they would not answer her questions about her son;
  • they repeatedly told her to go home;
  • one of them physically removed her from the site of her son’s arrest and roughly took her about 35-40 feet away;
  • one of them stonewalled her in response to her questions and threatened to charge her with obstruction of justice;
  • one of them physically blocked her ability to witness her son’s arrest and ensure his safety; and
  • generally, they “treated her as an annoyance and an ‘erratic, uncooperative’ woman rather than a mother with legitimate concerns about her son.”

In determining whether the complainant’s identity as an Indigenous woman was a factor in the adverse treatment, the BCHRT accepted that the officers were sincere in asserting that the complainant’s indigeneity had nothing to do with their treatment of her. However, stated the tribunal at paragraph 101 of the decision, “discrimination is much more complex than the thoughts at the top of a person’s mind.” At paragraph 102, the tribunal held that

[r]acial discrimination is most often subtle and pernicious. While there are no doubt still incidences of deliberate, open, racist attacks, it is more common that people do not express racial prejudices openly or even recognize them in themselves.

Factors that supported the Tribunal’s conclusion that the adverse treatment was due to the complainant’s indigeneity included that the police officers lacked culturally appropriate training and awareness,  misunderstood the complainant and treated her conduct as suspicious; and reacted to the complainant in a way that was neither proportionate nor responsive.

She was awarded $20,000 for injury to dignity, feelings, and self-respect. Further, the Vancouver Police Board was ordered to provide better training to employees who would be engaging with Indigenous people.

Francis v BC Ministry of Justice (No 4), 2019 BCHRT 136 (“Francis“)

The complainant in this case was a Black correctional officer who worked at the North Fraser Pre-Trial Centre. The Tribunal held that he was discriminated against in his employment on the grounds of race and colour. Colleagues and supervisors allegedly made racial comments to him, about him, or about other coworkers. The employer did not take the complainant’s allegations seriously. The BCHRT made the following findings:

  • that the complainant was stereotyped as “slow” when opening doors in Control when there was no credible basis for his colleagues to conclude that he was
  • that someone at work said to the complainant, “because you’re Black” as a sarcastic remark because he was aware that the complainant had, in the past, alleged that he was being picked on because he is Black.
  • that one supervisor said to another supervisor about the complainant, words along the lines of “maybe if you turn on the lights you can see him,” because of the complainant’s skin colour
  • that a colleague, while telling a story about a former fellow officer who had the appearance of a Black-skinned person, used the N word slur
  • that the complainant was singled out and treated differently than other employees
  • that someone called the complainant a “Toby” at work, which carries the same connotation as slave
  • that one colleague called the complainant an “LBM,” referring to a “Lazy Black Man”
  • that a colleague circulated a photo to the complainant of an African warlord accompanied by a news article about killing inmates
  • that a colleague stated to another colleague something like “sorry you have to work with that [N word]” in relation to the complainant
  • that the complainant was called a “rat” and told he had a “target on his back” after complaining about the above behaviour

Ultimately, the complainant left his position and, understandably, did not go back. The BCHRT found that he had been subjected to a poisoned work environment. When there is a poisoned work environment, departing may be the only reasonable option. The remedy portion of the case was not completed.

A Way Forward: Baratunde Thurston on How to Deconstruct Racism

Baratunde
Captured from https://www.ted.com/talks/baratunde_thurston_how_to_deconstruct_racism_one_headline_at_a_time#t-4129

The above-noted stories of discrimination in British Columbia demonstrate that racism continues to impact the daily lives of BIPOC here. As stated by Thurston, we need to level-up and change the action, which will change the story, which “changes the system that allows those stories to happen” and allows us to “write a better reality for us all to be a part of.”

Regarding the case of Balikima, one news article read: “Tree-planters endured slave-like conditions, lawyers tell BC rights body.” It might be broken down as something like this:

Corporate Employer (Allegedly) [subject]

Creates Slave-Like Conditions for [action]

(Black) Tree-Planters [target]

Trying to Make a Living at Tree Farms [activity]

An alternative, more inclusive reality and version of that article might read something like this:

Corporate Employer [subject]

Creates Profit-Share Model with [action]

Black Tree-Planters [target]

Trying to Make a Living at Tree Farms [activity]

There were also several news articles related to the case of Smith. One of them was titled “Landlord who tried to evict Indigenous woman for smudging ceremonies ordered to pay $23K.” The first part of that could be broken down like this:

Landlord [subject]

Tries to Evict [action]

Indigenous Woman [target]

For Smudging [activity]

Why not a different action/story/system/reality? It might look something like this:

Landlord [subject]

 Sends dinner invite to [action]

Indigenous Woman [target]

For Smudging [activity]

These are just some examples of how we may create a more inclusive climate for BIPOC in BC.

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