Radek v. Henderson Development and Securiguard Services

Date Issued: July 13, 2005

File: 116

Indexed as: Radek v. Henderson Development (Canada) and Securiguard Services (No. 3),

2005 BCHRT 302

IN THE MATTER OF THE HUMAN RIGHTS CODE

R.S.B.C. 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before

the British Columbia Human Rights Tribunal

B E T W E E N:

Gladys Radek

COMPLAINANT

A N D:

Henderson Development (Canada) Ltd. and Securiguard Services Ltd.

RESPONDENTS

REASONS FOR DECISION

Tribunal Member:

Lindsay M. Lyster

Counsel for the Complainant:

Tim Timberg and

Judith Doulis (in part)

Counsel for the Respondent, Henderson Development:

Counsel for the Respondent, Securiguard:

Tim Ellan

Stephanie Vellins and

Don Jordan, Q.C. (in part)

Dates of Hearing:

April 15, 20, 26, 27, 28, 29, 30

July 26, 27, 28, 29

August 3 and 4, 2004

Table of Contents

I.

Introduction ............................................................................................................... 1

II. Nature of the Complaint and Relevant Procedural History....................................... 2

III. Evidentiary Issues...................................................................................................... 7

A. An Introduction to the Witnesses and Documentary Evidence .............................. 7

1. The Complainant..................................................................................................... 8

2. Other Witnesses Alleging Discrimination Against Them on the Basis of Race..... 8

3. Other Community Workers..................................................................................... 9

4. Expert Witness...................................................................................................... 10

5. International Village Merchants ........................................................................... 10

6. Security Personnel ................................................................................................ 11

7. Henderson Management Personnel....................................................................... 12

8. Police..................................................................................................................... 12

9. Mall Patron............................................................................................................ 13

10.Documentary Evidence........................................................................................ 13

11.View..................................................................................................................... 13

B. A Comment on the Identification of People by Race ........................................... 13

C. Hearsay Evidence.................................................................................................. 15

D. “Similar Fact” Evidence........................................................................................ 17

IV. Background Facts .................................................................................................... 21

A. Gladys Radek ........................................................................................................ 21

B. The Downtown Eastside and the Characteristics of the Aboriginal Population ... 23

C. International Village.............................................................................................. 27

1. Development......................................................................................................... 27

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2. The Statutory Right of Way.................................................................................. 29

3. Controversy in the Community and Complaints About Security at International

Village................................................................................................................... 33

D. Securiguard ........................................................................................................... 41

E. The “Site Post Orders” – the Ejection Policies.................................................... 43

F. Prejudicial Attitudes and Stereotypes Commonly Held About Aboriginal People ..

............................................................................................................................... 46

V. Facts Relating to the May 10, 2001 Incident........................................................... 49

VI. Facts Relating to Allegations of Systemic of Discrimination ................................. 67

A. Gladys Radek ........................................................................................................ 67

B. Monica Wolfe........................................................................................................ 74

C. Larry Wong........................................................................................................... 77

D. David Heibert........................................................................................................ 78

E. Henry Chevillard................................................................................................... 79

F. Norman Mack........................................................................................................ 81

G. Robert Samson ...................................................................................................... 86

H. Teresa McDougall................................................................................................. 88

I. Adele Wagner........................................................................................................ 89

J. Angela Sterritt....................................................................................................... 92

K. Brent Houston ....................................................................................................... 96

L. Vanessa Savage..................................................................................................... 96

M. Tom Laviolette.................................................................................................... 100

N. Ed McCurdy........................................................................................................ 103

O. Monika Grant ...................................................................................................... 110

P. Bill Grant............................................................................................................. 113

Q. Henry Charles...................................................................................................... 114

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VII. The Security Guards’ Perspective and Practice..................................................... 115

A. Introduction......................................................................................................... 115

B. Lack of Training.................................................................................................. 117

C. Security Occurrence Reports............................................................................... 120

D. Problems and Responses..................................................................................... 122

E. Bannings.............................................................................................................. 129

VIII. Henderson’s Role .................................................................................................. 133

IX. Later Changes in Policies and Procedures............................................................. 137

X. Analysis – the Individual Aspect of the Complaint............................................... 138

A. What is the Applicable Test for Individual Discrimination? .............................. 139

B. Was Ms. Radek Discriminated Against on May 10, 2001? ................................ 141

1. The Prima Facie Analysis .................................................................................. 141

2. The Law Analysis – was Ms. Radek’s Human Dignity Demeaned? .................. 151

XI. Analysis -- The Systemic Aspects of the Case...................................................... 155

A. What is Systemic Discrimination?...................................................................... 156

B. How is Systemic Discrimination to be Proven?.................................................. 156

C. Has Systemic Discrimination Been Established in this Case?............................ 161

1. Evidence of the Attitudes of the Respondents .................................................... 161

2. “Playing the Race Card” ..................................................................................... 163

3. The Absence of any Anti-Discrimination Training or Policy............................. 166

4. The Significance of Aboriginal Security Staff and Mall Patrons ....................... 166

5. Evidence of Specific Incidents............................................................................ 168

6. Adverse Effect of the Site Post Orders on Aboriginal and Disabled Persons .... 169

D. Conclusion with respect to Systemic Discrimination ......................................... 186

XII. Analysis -- Have the Respondents Established that the Systemic Discrimination

was Bona Fide and Reasonably Justified? ............................................................ 188

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A. Introduction......................................................................................................... 188

B. Were the Practices, Policies and Attitudes Adopted for a Purpose or Goal

Rationally Connected to the Function Being Performed?................................... 189

C. Were the Practices, Policies and Attitudes Adopted in Good Faith and in the

Belief that they were Necessary for the Purpose or Goal?.................................. 191

D. Were the Practices, Policies and Attitudes Reasonably Necessary to Accomplish

their Purpose or Goal in the Sense that the Respondents Cannot Accommodate

Persons Subject to the Systemic Discrimination Without Incurring Undue

Hardship? ............................................................................................................ 194

XIII. Analysis -- Remedy............................................................................................... 196

A. Section 37(2)(a) – Cease and Desist Order......................................................... 196

B. Section 37(2)(b) – Declaratory Order ................................................................. 196

C. Section 37(2)(d)(iii) -- Injury to Dignity............................................................. 196

D. Section 37(2)(d)(ii) – Expenses Arising from the Breach of the Code............... 201

E. Section 37(2)(c) – Systemic Remedies ............................................................... 203

XIV. Conclusion............................................................................................................. 209

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I. Introduction

[1]

Gladys Radek alleges that Henderson Development (Canada) Ltd. and

Securiguard Services Ltd. discriminated against her in regard to a service customarily

available to the public on the basis of her race, colour, ancestry and physical disability,

contrary to s. 8 of the Human Rights Code. She also alleges that the discrimination she

suffered was part of a larger pattern of systemic discrimination practiced by the

respondents against Aboriginal and disabled people.

[2]

The complaint arises out of the policies of Securiguard, and the actions of security

guards employed by Securiguard, at the International Village shopping mall (also known

as “Tinseltown”) in downtown Vancouver. The International Village mall is owned and

operated by Henderson.

[3]

Ms. Radek complains about the specific actions of security personnel during an

incident at the mall involving Ms. Radek and her friend Monica Wolfe on May 10, 2001.

In brief, Ms. Radek alleges that on that occasion she and Ms. Wolfe were denied entry to

the mall and otherwise mistreated by three security guards employed by Securiguard.

The guard who first spoke to Ms. Radek and Ms. Wolfe, and initially denied them entry

to the mall, Kuljit Hayer, did not testify. Ms. Radek and Ms. Wolfe testified, as did Ms.

Radek’s boyfriend, Brent Houston, the two security personnel involved in the latter part

of the incident, Peter Clulow and Tyrone Power, and two Vancouver Police Department

officers who were called to the scene, about that incident. Ms. Radek also alleges that

that incident was part of a larger pattern of systemic discrimination against Aboriginal

and disabled people resulting from the practices and policies of the respondents. A large

number of witnesses were called to testify with respect to the allegations of systemic

discrimination.

[4]

In my decision, I first outline the nature of the complaint and some important

procedural issues. I then identify and briefly introduce the witnesses and documentary

evidence in this case. I then comment on some general evidentiary issues having to do

with the identification of people by race, hearsay evidence and similar fact evidence. I

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then discuss the important background facts relevant to this complaint. These include

facts about Ms. Radek, the expert evidence about the Aboriginal population of the

Downtown Eastside, the development of International Village, the “site post orders” or

ejection policies employed by Securiguard personnel at the mall, as well as a discussion

of the expert evidence with respect to stereotypical attitudes about Aboriginal people.

Having done that, I find the facts relevant to both the May 10, 2001 incident and the

allegations of systemic discrimination. I then go on to determine if discrimination has

been proven, in respect of both the individual and systemic aspects of the complaint. I

then consider whether the respondents established that their conduct was bona fide and

reasonably justified. Finally, I determine the appropriate remedies for both the individual

and systemic aspects of the complaint.

II.Nature of the Complaint and Relevant Procedural History

[5]

Ms. Radek filed her complaint with the British Columbia Human Rights

Commission. She signed her particulars of allegation on October 18, 2001. In the

Complaint Information Form, it was alleged that the respondents discriminated against

her with respect to a service customarily available to the public, on the basis of her race,

colour and ancestry, contrary to s. 8 of the Code. In this decision, I refer to these three

alleged grounds of discrimination generally as “race”. The date of the alleged conduct

was given on the Complaint Information Form as May 10, 2001. The attached particulars

referred not only to the May 10 incident, but also to previous incidents and allegations of

systemic discrimination, as follows:

5.

I do not remember the dates, but I would like you to know that there

have been several incidents where I was stopped by this same

security guard for no reason. On each of the prior occasions I was

asked where I was going and followed by her.

6.

I believe that the behaviour by the security guard of confronting me,

asking me questions without just cause and following me are all part

of a pattern of behaviour that I suffered because of the way I look.

…

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24. I also believe that I have been the victim of a pattern of systemic

discriminatory behaviour and a member of a “class” of people that

have been denied access to the Mall. Specifically, I believe that the

security guards for Tinseltown mall utilize a policy of trying to keep

“undesirables” from entering the mall. These “undesirables” are

often picked out because of the way they look. On this particular

day I believe the security guard stopped me because I am an

Aboriginal person and thus in her eyes was an “undesirable.”

25. I believe that this type of filtering out “undesirables” clearly

indicates a lack of respect for the principle that “all are equal in

dignity and rights”.

[6]

Ms. Radek attached to her complaint a number of newspaper articles about the

actions of security personnel at International Village, which she submitted “to show that I

believe we are dealing with a pattern of discriminatory behaviour”: at para. 33.

[7]

The Commission investigated Ms. Radek’s complaint. Both Henderson and

Securiguard submitted documents in support of their position that they had not engaged

in discrimination.

[8]

On October 23, 2002, the Commission referred the complaint to the Tribunal for

hearing.

[9]

The parties disagreed about the scope of the complaint before the Tribunal. In

order to resolve this issue, on June 4, 2003, Ms. Radek filed an application with the

Tribunal for a determination that the complaint included an allegation of systemic

discrimination. In addition, she applied for an order that the complaint be amended to

include the ground of disability and to indicate that the dates of the alleged discrimination

were October 2000 and ongoing. The respondents opposed the application.

[10] The Tribunal issued its decision with respect to this application on October 6,

2003: Radek v. Henderson Development (Canada) Ltd. and others, 2003 BCHRT 67. In

that decision, the Tribunal issued the following orders:

(a)

that the complaint, properly construed, includes an allegation of systemic

discrimination;

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(b)

(c)

that the complaint be amended to include the ground of disability, but that the

complaint of discrimination on the ground of disability does not include an

allegation related to the early closing of the Pender Street entrance to the mall;

and

that the temporal scope of the complaint be amended to allege that the

discrimination occurred from October 2000 to May 10, 2001.

[11] In the course of the hearing, it became evident that, in making their submissions

to the Tribunal on the preliminary application with respect to the temporal scope of the

complaint, the parties had been proceeding on a factual misunderstanding with respect to

when International Village opened. In her application, Ms. Radek had submitted that the

complaint should be amended to refer to the dates of the alleged discrimination as

“October, 2000 and ongoing”. The factual basis for this submission was stated in the

Tribunal’s decision as follows: “[t]he Complainant also states that she intends to call a

number of witnesses to provide ‘similar fact evidence’ relating to events commencing in

October 2000, when Tinseltown opened, and continuing to the present day”: at para. 33

(emphasis added). The respondents objected to the temporal amendment on a number of

grounds. They did not, however, take any issue with the factual allegation that the mall

opened in October 2000. As stated by the Tribunal, “[t]he parties agree that Tinseltown

opened in October 2000”: at para. 64. The Tribunal relied on this agreement, “and in the

absence of any more specific submissions with respect to the date”, decided that the

complaint should commence in October 2000.

[12] In fact, the evidence at the hearing made it clear that the mall opened in stages

beginning in or about December 1999, when the Tinseltown theatre commenced

operations. Other stores in the mall opened through the early months of 2000. The

gradual way in which stores opened in the mall and the passage of time since these events

occurred contributed to many witnesses’ confusion about precisely when the mall could

be said to have opened.

[13] This issue was the subject of discussion in the course of the hearing. Henderson

said that it had no problem with the Tribunal considering evidence from the time the mall

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opened. It objected, however, to the temporal scope of the complaint being expanded

back to that time.

[14] In my view, in light of the parties’ common mistake with respect to when the mall

opened in their submissions on the preliminary application, and the clear evidence before

me that in fact the mall began to open in December 1999, it is appropriate to amend the

temporal scope of the complaint to begin in December 1999. I have the discretion to

make such an amendment, pursuant to ss. 27.3(2)(j) and (3) of the Code. In Read v.

Century Holdings Ltd. dba Best Western Tsawwassen Inn, 2003 BCHRT 52, the Tribunal

determined that amendments such as this, which involve allegations about events prior to

the time limit for filing complaints, should be assessed in accordance with the

discretionary principles set out in s. 22(3) of the Code: whether the amendment is in the

public interest and whether anyone will suffer substantial prejudice as a result of the

amendment. As in Read, this amendment will better bring the form of the complaint into

conformity with its substance, which has always been a systemic complaint of

discrimination about on-going security practices at the mall. Further, it is consistent with

the intention of the Tribunal’s preliminary decision, which was to extend the temporal

scope of the complaint back to the opening of the mall. In my view, these factors

establish that it is in the public interest to make this amendment. I also do not believe

that the respondents or anyone else will suffer substantial prejudice as a result of the

amendment. In this regard, I rely upon the fact that Henderson agreed that the Tribunal

could consider evidence from the period in question as similar fact evidence. This

suggests that Henderson believed that it could respond to any evidence from this time

period. Further, it should have been possible for the respondents to clear up any

confusion with respect to when the mall opened at the time of making submissions on

Ms. Radek’s earlier application, as the question of when the mall opened and Securiguard

began providing security services at that location would have been a matter within their

knowledge; they did not do so, and took no issue with Ms. Radek’s mistake in this

respect. The end date for the complaint remains as stated in the Tribunal’s preliminary

decision, May 10, 2001.

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[15] Despite the end date for the temporal scope of the complaint, I heard evidence

with respect to events which occurred after that date. No party objected to me hearing

this evidence, and the Tribunal’s preliminary decision had anticipated that such evidence

might be led as similar fact evidence, leaving it to the member designated to hear the case

to determine its admissibility: at para. 71. I consider further both the admissibility and

use to which such evidence can be put below at paras. 57-66.

[16] The hearing commenced on April 15, 2004. The first witness called was Dr.

Bruce Miller, who was tendered as an expert by Ms. Radek in anthropology, the relations

between mainstream society and indigenous peoples, and public policy with respect to

indigenous peoples. The respondents objected both to Dr. Miller’s qualifications and the

admissibility of his report. Dr. Miller was therefore initially examined with respect to his

qualifications only, and his report and other related materials were introduced and

marked as exhibits for identification purposes only. I addressed the respondents’

objections in a decision issued on April 26, 2004: Radek v. Henderson Development

(Canada) Ltd. and others (No. 2), 2004 BCHRT 340. In that decision, I qualified Dr.

Miller as an expert in the areas in which he was tendered. I also admitted his report into

evidence. I expressed some concerns with respect to certain aspects of his report, but

held that those concerns could be adequately addressed through cross-examination. Dr.

Miller was then re-called and examined in chief and cross with respect to his report. In

the end, I found Dr. Miller’s report and evidence of substantial assistance in considering

the issues raised in this case. I deal with the substance of those aspects of Dr. Miller’s

evidence on which I rely in the course of these reasons.

[17] I note that all parties were represented by counsel through the initial stages of this

hearing. On May 3, 2004, counsel for Securiguard wrote the Tribunal, advising that she

had been instructed to no longer attend the hearing, due to the costs associated with doing

so. Counsel indicated that she would appear before the Tribunal for final argument to

address the issue of remedy, and that in all other respects Securiguard supported the case

and submissions of Henderson. Counsel for Henderson remained throughout the hearing,

and called a number of witnesses who had been employed by Securiguard at the mall. As

she had advised she would do in her letter, counsel for Securiguard returned for final

6

argument. At that time, Securiguard relied on Henderson’s submissions with respect to

Ms. Radek’s individual complaint, and focused its submissions on the systemic aspect of

the complaint and remedial issues.

III. Evidentiary Issues

A. An Introduction to the Witnesses and Documentary Evidence

[18] A large number of witnesses testified in the course of this 13 day hearing. I

briefly introduce the witnesses and the nature of their evidence here. I also make some

general remarks about the reliability of the evidence which each of them gave. Where

necessary, I make more specific findings with respect to credibility and the reliability of

individual portions of the evidence in the course of my reasons. I also briefly describe at

this point the substantial documents which were entered into evidence.

[19] In assessing the evidence before me I have relied upon the frequently cited factors

described by the Court of Appeal in Faryna v. Chorny, including assessing each

witness’s demeanour, power of observation, opportunity for knowledge, judgment and

memory, and ability to describe clearly what was seen and heard: Faryna v. Chorny,

[1952] 2 D.L.R. 354 (B.C.C.A.) at p. 357. In the end, as the B.C. Court of Appeal stated

in Faryna:

The credibility of interested witnesses, particularly in cases of conflict of

evidence, cannot be gauged solely by the test of whether the personal

demeanour of the particular witness carries conviction of the truth. The

test must reasonably subject his story to an examination of its consistency

with the probabilities that surround the currently existing conditions. In

short, the real test of the truth of the story of a witness in such a case must

be its harmony with the preponderance of the probabilities which a

practical and informed person would readily recognize as reasonable in

that place and in those conditions. (emphasis added)

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1. THE COMPLAINANT

[20] At the time of giving her evidence, Ms. Radek was 49 years old. She gave

evidence both with respect to the May 10, 2001 incident which triggered this complaint,

and her other experiences at International Village.

[21] In general terms, I found Ms. Radek to be a sincere and truthful witness. I have

relied on her evidence. In relation to some events, her perceptions and ability to recall

details with accuracy may have been affected by the strong emotions which she

experienced at the time they occurred. While I do not think that this had a significant

effect on her reliability as a witness, I have taken this into account where appropriate in

assessing her evidence.

2. OTHER WITNESSES ALLEGING DISCRIMINATION

AGAINST THEM ON THE BASIS OF RACE

[22] A number of people, most of whom are Aboriginal, testified as part of the

complainant’s case about their experiences at International Village. In particular, Monica

Wolfe, a close friend of Ms. Radek’s, testified about the May 10 incident, as well as other

experiences at the mall. Ms. Wolfe is an Aboriginal woman with a serious disability.

With the agreement of the parties, Ms. Wolfe testified by telephone, as her disability

made it difficult for her to attend the hearing in person. I accept that Ms. Wolfe told the

truth to the best of her ability. However, she suffers from a severe illness, which may

have affected the reliability of some aspects of her evidence. Further, she was unable to

review any documents which were put to her in evidence because she was not in the

hearing room. As I describe in further detail below at paras. 207-209, while I have relied

on some parts of her evidence, I have treated her evidence with some caution.

[23] Brent Houston, Ms. Radek’s boyfriend, who is white, also testified about the May

10 incident. While his evidence was of limited scope, I found him to be a truthful and

reliable witness with respect to the matters within his knowledge.

[24] Adele Wagner and Angela Sterritt, both of whom are Aboriginal women, also

testified about what they alleged was discriminatory treatment which they received at

8

International Village. Ms. Wagner knows Ms. Radek only by name and by sight – they

are not friends. Ms. Sterritt had never met Ms. Radek before giving her evidence in this

hearing. I found both Ms. Wagner and Ms. Sterritt to be truthful witnesses. I have relied

on Ms. Sterritt’s evidence without reservation. There were some difficulties associated

with Ms. Wagner’s evidence that caused me to treat some aspects of it with caution. I

address the reliability of Ms. Sterritt’s and Ms. Wagner’s testimony in more detail in

dealing with their evidence below at paras. 275-291 and 263-274.

[25] Norman Mack and Henry Chevillard, both of whom are Aboriginal and worked as

building managers at Vancouver Native Housing, an Aboriginal housing facility across

Pender Street from International Village, testified both about their own experiences and

observations and those reported to them by tenants. Both Ms. Radek and Ms. Wolfe

lived at Vancouver Native Housing. I found both Mr. Chevillard and Mr. Mack to be

highly reliable witnesses.

3. OTHER COMMUNITY WORKERS

[26] Three non-aboriginal persons who are active in the Downtown Eastside

community testified. They testified about their own experiences and observations at the

mall, as well as their involvement with and advocacy on behalf of Aboriginal and

disabled persons who claimed to have suffered discrimination at the mall. They were:

Tom Laviolette, Vanessa Savage and Ed McCurdy.

[27] Mr. Laviolette has worked in the Downtown Eastside for 15 years. He presently

works with the Portland Hotel Society as a planner. He previously worked with the

Carnegie Community Centre Association. Ms. Savage also works with the Portland

Hotel Society as a mental health worker on various projects, including the Insite Safe

Injection Site. She is married to Mr. McCurdy, who now works with the Vancouver Area

Network of Drug Users (“VANDU”) as a volunteer coordinator. VANDU is made up of

active and reformed injection drug users, and provides a variety of services targeted to

the needs of that group. Mr. McCurdy formerly worked with the Portland Hotel Society

as a community support worker.

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[28] None of these three individuals knows Ms. Radek or has any relationship with her

outside of appearing as witnesses in these proceedings. All three of these people have

strong views about the Downtown Eastside and are vigorous advocates for its residents in

their personal and professional lives. Nonetheless, in general, I found Mr. Laviolette and

Ms. Savage to be careful, reliable witnesses. I have relied on their evidence. In his

evidence, Mr. McCurdy sometimes crossed the line from witness to advocate. While I

have also relied on portions of Mr. McCurdy’s evidence, I have, as a result, treated some

aspects of it with caution.

4. EXPERT WITNESS

[29] Dr. Bruce Miller testified as an expert witness on behalf of the complainant. Dr.

Miller is an anthropologist, who gave evidence with respect to prejudicial attitudes and

stereotypes held about Aboriginal people, his review of the site post orders (the written

policies governing ejections from the mall), and a statistical analysis of the Aboriginal

population in the neighbourhood in which the mall is located. I have relied on portions

of Dr. Miller’s expert report and evidence, as outlined below in the course of my reasons.

5. INTERNATIONAL VILLAGE MERCHANTS

[30] Monika Grant and Bill Grant both testified on behalf of the complainant about

their experiences and observations in the mall. Their daughter owned a store in the mall

– D’Vine Health, in which Ms. Grant was an investor. The store failed. Mr. Grant is

married to Ms. Grant, and has progressive multiple sclerosis. Neither of the Grants

knows Ms. Radek, or has had any previous dealings with her.

[31] The Grants are involved in ongoing litigation against Henderson with respect to

the failed store. Ms. Grant, in particular, holds a substantial degree of resentment against

Henderson for what she sees as its failure to fulfil its promises to her and other mall

merchants. I have taken Ms. Grant’s antagonism and financial interest against Henderson

into account in assessing her evidence. Mr. Grant did not appear to share his wife’s

resentments, and was a careful witness. I have relied on his evidence.

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6. SECURITY PERSONNEL

[32] Three security personnel formerly employed by Securiguard were called as

witnesses by Henderson. They were: Tyrone Power, Peter Clulow and Jim Skead.

[33] Mr. Power started working with Securiguard in 1996. He left Securiguard to

work in security with BC Hydro, and returned to Securiguard as a field supervisor in or

about 2000. He worked as the site security manager at International Village from

September 2000 until March 2002. He reported to Matt Dunn, who was the mall’s

manager, and an employee of Henderson. Mr. Power gave his testimony by telephone

from Newfoundland with the consent of the parties.

[34] Mr. Clulow started working for Securiguard in January 2000. The evidence with

respect to the dates of Mr. Clulow’s employment at International Village was somewhat

unclear. On the basis of his oral evidence and various Undesirable Person Reports and

Security Occurrence Reports in which he was named, I believe he worked mostly in the

mall’s closed circuit television (“CCTV”) room from sometime in early 2000 to February

2001, and as a shift supervisor from February 2001 to sometime in June 2002. Once he

was promoted to shift supervisor, Mr. Clulow was Mr. Power’s “right hand man”, and

was in charge in his absence. He was promoted to site security manager in or about June

2002, and remained in that position until sometime in late 2002.

[35] Mr. Skead has worked in security since 1985, and has been with Securiguard

since 1993. Mr. Skead’s period of employment at International Village and the dates

upon which he was promoted were also not entirely clear in the evidence. He started as a

security guard at the mall sometime in 2001. The earliest Security Occurrence Report

which I noted him to have written was in July 2001. He became a shift supervisor, I

believe when Mr. Clulow was promoted to site security manager, in June 2002. At some

point he became site security manager, but the date of that promotion was unclear. When

En Guard Security Ltd. took over the security contract for International Village from

Securiguard in June 2003, Mr. Skead remained on site as En Guard’s site security

manager.

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[36] While I accept that Mr. Power, Mr. Clulow and Mr. Skead all told the truth to the

best of their ability, I have not accepted all of their recollections or perceptions, as I

outline in greater detail in dealing with their evidence, both about the May 10 incident

and their activities and those of security generally at the mall. Mr. Power and Mr.

Clulow, in particular, sometimes coloured their evidence to put the security guards in

what they perceived to be a good light. Mr. Skead was a more candid witness.

7. HENDERSON MANAGEMENT PERSONNEL

[37] Two persons employed with Henderson testified. These were: Allen Lai, the

President of Henderson Developments Canada Ltd., and Louie Molnar, who is now the

shopping centre manager. Prior to becoming the shopping centre manager in August

2002, Mr. Molnar had been employed by Securiguard as an accounts manager with

responsibility for International Village. I found Mr. Lai to be a truthful witness;

however, he had very little direct knowledge about the matters in issue in this complaint.

I also found Mr. Molnar to be a generally truthful witness, although his evidence was at

times somewhat vague. In particular, given his employment with both respondents

during the relevant times, I found his expressed lack of knowledge about certain matters,

such as public controversy about security practices at the mall, difficult to credit.

8. POLICE

[38] The two police officers who were called to the scene on May 10, 2001 both

testified. They are: Constable Robert Gough and Constable Elvis Bellia. I found

Constable Bellia to be a generally reliable witness who gave his evidence in a

straightforward and dispassionate manner. While I have not accepted all of Constable

Bellia’s interpretations of events, I have relied on his evidence in a number of respects.

By contrast, Constable Gough appeared to take the allegations in this case personally,

which rendered his evidence less reliable. I deal with this issue in greater depth below at

paras. 166-177.

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9. MALL PATRON

[39] Henry Charles, an Aboriginal mall patron, testified on behalf of the respondents.

While I found Mr. Charles to be a truthful and reliable witness, his evidence was of

limited assistance to me in resolving the issues in this case.

10. DOCUMENTARY EVIDENCE

[40] A large number of documents were entered into evidence. Both Ms. Radek and

Henderson submitted briefs of documents. Most of the documents included in those

briefs were introduced into evidence on consent. I declined to permit a few documents to

be introduced, for reasons given in the course of the hearing. In addition, a substantial

volume of business records maintained by Securiguard were admitted on consent. These

were: the Security Occurrence Reports written by security guards in the mall during the

period October 2000 to October 2001, and five “Banned Books”, containing

“Undesirable Person Reports” on persons banned from the mall by Securiguard, and later

En Guard, security guards. The earliest “banning” contained in the Books occurred in

February 2000; the latest appears to have occurred in or about January 2004. I refer to

various aspects of these records throughout my reasons, and deal with them more

specifically below at paras. 387-397 and 418-432.

11. VIEW

[41] With the consent of the parties, I also took a view of the International Village

mall, which assisted me in understanding the evidence about the events which took place

there.

B. A Comment on the Identification of People by Race

[42] A number of issues arose in this case with respect to the identification of persons

by their race. For example, I heard evidence from Aboriginal people who said that they

sometimes “passed” as white, and from white people who said they were sometimes

mistakenly identified as native.

13

[43] The identification of people as “looking” or “being” Aboriginal or white is

fraught with difficulties. Some classifications of race are cultural, others are legal. For

example, First Nations people in Canada may be classified for some purposes as

Aboriginal, but yet not be Status Indians under the Indian Act, R.S. 1985, c. I-5. The

histories of the United States and South Africa show how individuals with a small

percentage of Black “blood” may be legally characterized as belonging to a given race,

despite their mixed ethnic heritage and regardless of their appearance.

[44] In light of the history of racism, the attribution of racial identity, particularly on

the basis of appearance, may be seen as distasteful. Even where engaged in for legitimate

purposes, the identification of another person as being a member of a given race has a

large subjective element. As Dr. Miller testified, one person’s perception of another’s

race is a social construct which will be informed by a number of factors, including

stereotypes that person may hold about different races.

[45] My conceptions, for example, of what a native person “looks” like will inform my

attribution of race to any given individual. This is equally true of others, including, for

example, the security guards employed at International Village.

[46] Even Aboriginal people may have difficulty identifying one another as

Aboriginal. There are hundreds of different First Nations in North America. Members of

different First Nations may vary significantly in their appearance, including, for example,

how dark their skin is and the colour of their hair. This was a matter commented on by a

number of Aboriginal witnesses, including Norman Mack and Angela Sterritt.

[47] Despite these difficulties, because it is germane to the issues in this complaint, it

is necessary in these reasons to comment on the appearance of the witnesses who testified

and, at times, to identify particular individuals as “looking native” or “passing for white”.

In doing so, I have intended no disrespect to anyone or to anyone’s cultural or racial

heritage.

[48] In my decision, I have variously referred to Aboriginal people as either

Aboriginal, First Nations, native or Indian. Again, no disrespect has been intended to

14

anyone in my use of these terms. In most cases, my usage has been guided by the

terminology employed by the witness to whose testimony I am referring.

[49] Finally, on a related point, some issue was taken in these proceedings about the

fact that persons were identified by race in the Security Occurrence Reports and in some

of Undesirable Person Reports contained in the Banned Books. In the case of the

Security Occurrence Reports, this identification was part of the description to be written

down by the guard making the report. In my view, there is nothing improper in a

person’s perceived race being written down as part of their description in such a report; it

may be useful in identifying the person on a subsequent occasion, just as would other

descriptive information such as their height, weight and so on. However, due to the

inherent difficulties in identifying another person as being a member of a particular race,

the guards’ identification of subjects as being of a given race must be treated with some

caution. This fact is reflected in the Security Occurrence Reports themselves, many of

which leave the space for “race” blank, state it as “unknown”, state a “possible” race, or

refer to people as “not Caucasian” or “not white”. This is one of a number of factors

which renders making any kind of statistical analysis on the basis of the Security

Occurrence Reports and Banned Books of the percentage of persons of different races

removed or ejected from the mall so fraught with difficulty. This is a matter I return to

below at paras. 395-397 in dealing with the Security Occurrence Reports and at paras.

502-513 in considering the question of the nature of the evidence necessary to establish

systemic discrimination.

C. Hearsay Evidence

[50] Hearsay evidence formed a significant part of the evidence in this case. The

actions of the security guards at International Village were a subject of concern, both

among the Aboriginal residents of the Downtown Eastside, in particular those living at

Vancouver Native Housing, and in the wider Downtown Eastside community. Members

of the community and community workers discussed these issues. Witnesses in this

hearing recounted stories they had heard from other people. Notes written by persons

who were not called as witnesses were entered into evidence. Records kept by security

15

personnel who did not testify were entered. Newspaper articles written about these

events were also entered into evidence.

[51] With a few exceptions, I allowed the hearsay evidence to be introduced. In doing

so, I have been guided by s. 27.2(1) of the Human Rights Code, which provides as

follows:

A member or panel may receive and accept on oath, by affidavit or

otherwise, evidence and information that the member or panel considers

necessary and appropriate, whether or not the evidence or information

would be admissible in a court of law.

[52] As a result, the rules governing the admissibility of evidence, including hearsay

evidence, which apply in a court of law, have limited applicability in proceedings before

the Tribunal. In general terms, I have been guided by the following principles in

considering the hearsay evidence introduced in this hearing, as stated by Sopkina et al in

The Law of Evidence in Canada, 2^nded. (Toronto: Butterworths, 1999) at p. 308:

In proceedings before most administrative tribunals and labour arbitration

boards, hearsay evidence is freely admissible and its weight is a matter for

the tribunal or board to decide, unless its receipt would amount to a clear

denial of natural justice. So long as such hearsay evidence is relevant, it can

serve as the basis for the decision, whether or not it is supported by other

evidence which would be admissible in a court of law.

The rationale for shying away from strict adherence to the hearsay rule, and

the rules of evidence generally, is that administrative proceedings are not

normally as adversarial as criminal and civil cases. Moreover, policy and

social issues are often considered in such proceedings. Evidence with

respect to these issues by its nature contains a hearsay component which

cannot be separated out. Furthermore, individuals who are not legally

trained are often members of the tribunal or act as representatives of the

parties and would not be familiar with the rules of evidence.

[53] Not all of the policy rationales cited by Sopinka in support of a relaxed approach

to the rules of evidence apply with equal force to the Tribunal, either generally or in this

case in particular. In particular, complaints which proceed to hearing before the Tribunal

are often fully as adversarial as trials in civil court. Certainly this one was. In addition,

the parties in this case were all well represented by counsel. However, that is not true of

all parties appearing before the Tribunal, many of whom are self-represented. Further,

16

complaints before the Tribunal often raise policy and social issues, evidence with respect

to which frequently has a hearsay component. That was particularly true in this case.

[54] In the end, the use to which hearsay evidence may be put depends on ensuring

that all parties receive a fair hearing and that the Tribunal has reliable evidence before it

on which it can make its findings of fact. As all parties in this case ultimately agreed, the

admissibility and use of hearsay evidence must be assessed on a case-by-case basis. In

this regard, I have considered in each instance the reliability of the evidence, the

necessity for its introduction as hearsay rather than first-hand evidence, the probative

value of the evidence, and whether the other parties would be unfairly prejudiced or

otherwise disadvantaged through my reliance on it.

[55] An element in considering the fairness factor is the extent to which the other

parties were afforded an opportunity to challenge the evidence, whether by cross-

examination or otherwise. In this regard, I note that all witnesses were subject to cross-

examination. Further, I indicated to counsel in an oral ruling that in the event witnesses

testified in direct examination with respect to events of which they had not had previous

notice, they could apply for an adjournment before commencing cross-examination if

necessary in order to deal with that evidence. No such adjournments were sought.

[56] As I have said, I generally allowed the hearsay evidence to be introduced. In each

case where hearsay evidence was admitted, I have given it the weight which I consider

appropriate, bearing these and other relevant factors in mind. In some cases, I have given

hearsay evidence no or only minimal weight. In other cases, I have given it some weight

and relied on it in making my findings. My reasons for making these determinations are

given below in each case where hearsay evidence is considered.

D. “Similar Fact” Evidence

[57] A great deal of evidence was adduced in this case about individuals’ experiences

and observations at International Village and about the general practices of security

personnel at the mall. All parties agreed that I could hear this evidence, although there

were issues raised about its nature and the uses to which it could be put. The question of

17

the admissibility of “similar fact” evidence had been identified as an issue in the

Tribunal’s preliminary decision, which left it to the member designated to hear the case

to determine.

[58] The Tribunal has the same broad discretion under s. 27.2(1) of the Code to admit

similar fact evidence as it does hearsay evidence, where the member or panel considers it

necessary and appropriate, whether or not the evidence or information would be

admissible in a court of law. Despite this broad discretion, human rights decisions in this

province dealing with issues of similar fact evidence have typically applied the general

principles applicable in a court of law. As stated in Willis v. Blencoe, 2001 BCHRT 12:

As a general rule, it is not appropriate to admit similar fact evidence to

bolster an argument that a respondent has a propensity which makes it

more likely than not that he or she engaged in the alleged conduct.

Applied in this context, it would not be appropriate to admit similar fact

evidence to show that the respondent is the type of character that is likely

to have sexually harassed a complainant.

It may, however, be appropriate, and necessary, to hear similar fact

evidence in cases where the respondent puts his or her good character in

issue, or where the similar fact evidence goes to bolster the credibility of a

witness. In such cases, similar fact evidence that demonstrates a pattern of

conduct that is unique or distinctive and coincides with some unique or

distinctive pattern alleged in the case before the adjudicator should be, and

is, admitted. The question the adjudicator must ask is whether the

probative value of the evidence outweighs its prejudicial effect. (at paras.

9-10)

[59] In my view, all of the evidence in question was properly before me. Most of this

evidence was not, however, strictly speaking, “similar fact” evidence. Rather, it was

evidence which was directly probative of the question of whether the respondents

engaged in systemic discrimination. Any evidence with respect to whether the

respondents discriminated against people on the basis of race, colour, ancestry or

disability within the time period covered by this complaint was relevant to the issue of

systemic discrimination and was admissible on this basis without resort to the principles

applicable to similar fact evidence. Looked at in this light, the question was not, as

framed by Henderson, whether the “similar fact” evidence was of assistance in

determining whether Ms. Radek was discriminated against on May 10; rather, the

18

question was whether the evidence was of assistance in determining if the respondents

engaged in a pattern of systemic discrimination. In my view, the answer to that question

was clearly “yes”, and I have relied on the so-called “similar fact” evidence for that

purpose.

[60] That said, the evidence going to the issue of systemic discrimination was also of

assistance in putting the events of May 10, 2001 in their proper factual context, and I

have also relied on it for that purpose.

[61] I also heard evidence about guards’ conduct and individuals’ experiences

occurring outside the time period covered by this complaint. While not directly probative

of whether the respondents engaged in systemic discrimination within the time period

covered by the complaint, such evidence was still generally relevant and admissible, on a

number of grounds.

[62] First, such evidence was admissible as true similar fact evidence. This evidence

was not put forward to show that the respondents had a bad character or were the type of

entities which would have a propensity to engage in bad behaviour. Rather, it was put

forward as evidence of the patterns of conduct engaged in by the security guards at

International Village in the application of the respondents’ written and unwritten policies.

[63] Henderson, while it did not dispute the relevance of the similar fact evidence

introduced by the complainant, submitted that the prejudicial impact of some of the

complainant’s witnesses’ evidence about their experiences and observations at

International Village outweighed its probative value. In particular, it argued that it was

prejudiced by its inability to respond effectively to the complainant’s witnesses’

“anecdotal” evidence.

[64] I was not persuaded by this argument. All parties in this case faced significant

evidentiary challenges, as they attempted to establish whether the respondents engaged in

a pattern of systemic discrimination over a relatively lengthy period of time. The

complainant called a large number of witnesses who testified about their experiences and

observations of security practices at International Village over that period of time. The

19

respondents, for their own reasons, called only three security guards and one mall patron

to testify about their experiences and observations. While the security guards gave

general evidence about their policies, practices, and procedures, they did not, with the

exception of the May 10 incident involving Ms. Radek, testify about the particular

incidents about which the complainant’s witnesses testified. While I recognize that in

some cases it may have been difficult, or even impossible, to identify the particular

security guards alleged to have been involved in those incidents, I do not believe that that

would have been true in all cases. This was clearly the case where the guard involved

was identified, as in a number of interactions which Ms. Radek and Ms. Wolfe had with

Ms. Hayer, and may also have been so where the guards involved were described with

some degree of specificity. In any event, I have taken into account the respondents’ more

general evidence in assessing the complainant’s witnesses’ evidence about specific

incidents.

[65] In the end, I find that the probative value of the similar fact evidence outweighs

any prejudicial effect. I have therefore considered the evidence of security practices at

International Village, regardless of whether it occurred within the time period covered by

the complaint. In each case, I have given it the weight I consider appropriate, taking into

account all relevant factors, including any difficulty the respondents may have had in

responding to it.

[66] Second, with respect to events occurring after the time period covered by the

complaint, the so-called “similar fact” evidence was useful in determining the extent to

which the problems identified during the time period covered by the complaint continued

or have been rectified by later actions of the respondents. Such evidence may be very

important in determining the appropriate remedial responses to any discrimination which

is found to have occurred. On this basis, as well, I have admitted and considered the

evidence of events at International Village occurring after the time period covered by the

complaint.

20

IV. Background Facts

A. Gladys Radek

[67] At the time she testified, Ms. Radek was 49 years of age. She was born in

Morristown, British Columbia, into the Carrier First Nation. She was raised in the north,

in the foster care system. She is dark-skinned and, in my view, identifiably Aboriginal.

She has visible scars and the remnants of old tattoos on her arms.

[68] Ms. Radek is a single mother of five; her two youngest daughters, who at the time

of her testimony were 15 and 13, still live with her. She describes Brent Houston, who

also testified in these proceedings, as her boyfriend. Mr. Houston is white.

[69] Ms. Radek has a physical disability: she was in a motorcycle accident in 1974 in

which she injured her leg, had her leg amputated below the knee in 1977, and now uses a

prosthetic device to enable her to walk. As a result, she has mobility problems,

osteoarthritis and post-traumatic arthritis, and sometimes gets blisters. She walks slowly.

If she over-exercises, she may limp.

[70] Ms. Radek quit school in Grade 10. Starting in 1996, she attended the Native

Education Centre in Vancouver, from which she graduated in July 1999. Her studies

included both Adult Basic Education courses and First Nations studies, including a

beadwork course. Her graduation from this program was important to Ms. Radek, as she

had been out of school for 25 years, and was proud of having accomplished her goal of

succeeding at school.

[71] Ms. Radek has volunteered in the Downtown Eastside, in particular at the Evelyne

Saller Centre, which provides meals and other services such as showers and laundry to

residents of the area. Ms. Radek testified that a lot of people looked up to her as an elder

in her community; they would come to her if they needed advice or counsel.

[72] Ms. Radek has a limited income. She has been “on disability” since 1997.

21

[73] Ms. Radek has lived in the Downtown Eastside off and on for the past 40 years.

In 2000, she was living at 101-437 E. Hastings Street. She applied for a suite in the new

Vancouver Native Housing facility at 27 W. Pender Street, directly across the street from

the 88 W. Pender Street entrance to the International Village shopping centre. Vancouver

Native Housing opened its doors in October 2000. The facility has a large native mask

on the outside wall; as Ms. Radek said, “you can’t miss it’s a native building.”

Vancouver Native Housing was designed to accommodate hard-to-house, low income

Aboriginal people. Only Aboriginal people are allowed to live in the facility. It has 98

units. Sixty eight units are for hard-to-house, lower income tenants, and 30 units are run

with the assistance of Triage, which provides mental health workers to assist these

tenants. I note that the fact that the facility across the street was a native building was not

unknown to the respondents. Peter Clulow testified that he knew that, and while he did

not know that Ms. Radek and Ms. Wolfe lived there, he testified that “we did know a

number of their tenants”. I noted at least one Undesirable Person Report in which the

banned person was identified as living at “native residence beside In’t Village on Pender

St.”.

[74]

Ms. Radek moved into her handicap-accessible suite in October 2000, at roughly

the same time that Vancouver Native Housing opened. She was very pleased to do so, as

the suite was subsidized, with the result that the rent was a lot cheaper, and the suite was

bigger and more modern than where she had been living. From her balcony on the third

floor she could see the north entrance to International Village. She would frequently sit

on her balcony while beading, often with her friend, Monica Wolfe.

[75] Ms. Radek moved from Vancouver Native Housing in or about October 2001.

She did so because of unfortunate personal and family circumstances which forced her to

move to Terrace for a year. She returned to the Lower Mainland with her children in

2002. She has since moved back to the Downtown Eastside, where she is now living.

She no longer lives at Vancouver Native Housing.

22

B. The Downtown Eastside and the Characteristics of the

Aboriginal Population

[76] While descriptions may vary slightly, the Downtown Eastside of Vancouver can

be said to be made up of Chinatown, Gastown, Oppenheimer, Strathcona, Thornton Park

and Victory Square. It is notorious as an area in which poverty and the social ills which

attend it are rampant. Lack of economic opportunities, inadequate and insufficient

housing and medical care, crime, drug use and prostitution are ongoing concerns in the

area. The Downtown Eastside has been the target of numerous governmental and non-

governmental programs designed to assist its residents and to revitalize the community.

[77] According to the City of Vancouver publication, Downtown Eastside Community

Monitoring Report, 7^thed., 2002, the Downtown Eastside had a population of 16,275 in

1996. Of this population, 1,430, or 9%, were listed as Aboriginal. These numbers are

based on the 1996 federal census. According to Dr. Miller, the number of Aboriginal

people is subject to “under-count”. This is due to a number of factors, including the

reluctance of Aboriginal people to participate in studies, typically low response rates

among poor and marginalized people, and the exclusion of people living in rooming

houses. The latter factor is of particular significance, given the large number of people

who live in rooming houses in the Downtown Eastside. According to Dr. Miller, these

and other factors result in an under-count of the Aboriginal population of approximately

50%. As a result, the actual Aboriginal population in the Downtown Eastside is likely in

the region of 2,800 to 3,000. This would mean that Aboriginal people make up

approximately 16.8 to 18% of the area’s population. The factors on which Dr. Miller

based this opinion, and the statistical under-count of the Aboriginal population, are

supported by the Vancouver/Richmond Health Board publication, Healing Ways,

Aboriginal Health and Service Review, 1999.

[78] At any given time, the number of Aboriginal people in the Downtown Eastside

may be even higher than these figures suggest. That is because of the considerable

mobility of the Aboriginal population. Aboriginal people living in the suburbs routinely

travel into the area, but are not counted in the census as living there. According to

Healing Ways, there are approximately 60,000 Aboriginal people living in the Lower

23

Mainland or the Greater Vancouver area, and people who live in the suburbs routinely

travel into Vancouver. Further, many other Aboriginal people travel back and forth on a

more a less regular basis between rural communities and the Downtown Eastside. Ms.

Radek reflected this trend in moving back and forth between Terrace and the Downtown

Eastside.

[79] The demographics of the Aboriginal population living in Vancouver vary both

from that of British Columbians as a whole and from Aboriginal people living elsewhere.

They are, on the average, older and more likely to be single than other British

Columbians. In particular, the median age of Aboriginals living in Vancouver was 32.3,

as compared to 26.8 for British Columbians generally. The Aboriginal population in

Vancouver is also older on average than the rural Aboriginal population. They are also

more likely to be single than other groups: of Aboriginal people living in Vancouver

over 15 years of age, 68% were single, as compared to 53% of the total Aboriginal

population in the province.

[80] Aboriginal people, in general, are more likely to suffer from health problems than

other Canadians. Almost one third of Aboriginal Canadians age 15 and over report

having a disability – this is more than double the national rate. The difference is

particularly marked in younger age groups, where Aboriginal people are three times more

likely to have a disability than non-aboriginal people. Chronic conditions such as

diabetes, high blood pressure, breathing problems and arthritis are all more likely to

affect Aboriginal people than the mainstream population. For example, the incidence of

arthritis within the Aboriginal population is 17%, as compared to 5% of the general

British Columbia population. High blood pressure affects 17% of the Aboriginal

population as compared to 7% of the general population, and breathing problems affect

11% of the Aboriginal population as opposed to 2% of the general population. Heart

disease affects 9% of the Aboriginal population versus 1% of the general population.

Diabetes, tuberculosis, and cancer also affect a greater percentage of the Aboriginal

population than the general population. Death rates due to HIV/AIDS are increasing

among Status Indians despite the decline in such deaths in the general population.

Addiction is also a problem in the Aboriginal population. For example, between 1,500

24

and 2,500 Aboriginal people in Greater Vancouver are injection drug users. These

statistics are all taken from the Provincial Health Officer’s Annual Report for 2001, The

Health and Well-being of Aboriginal People in British Columbia.

[81] According to the Provincial Health Officer’s Report, the reasons for the

comparative prevalence of disease and disability among the Aboriginal population are

multi-faceted:

Why do Aboriginal people, as a group, have poorer health status? This is

a complex issue. Poor health status reflects the historical disadvantages

experienced by Aboriginal communities. Colonialism, racism, diseases,

and the loss of cultural and political institutions have resulted in

powerlessness and dependency, from which they have only recently

emerged, and with the legacy of which they still must struggle. The

residential school experience and the forced separation of families in the

name of integration resulted in family disruption. Poverty, unemployment

and inadequate housing all contribute to ill health for Aboriginal people,

as for others. When Aboriginal communities experience difficulties, they

have not always been given the resources and supports they need to ensure

that individuals and families can achieve optimal health. Access to

primary health care has been deficient. Finally, the loss of a traditional

lifestyle and traditional foods has had a particularly deleterious effect on

Aboriginal people, contributing to high rates of obesity and diabetes.

[82] The inter-related nature of the many health and other problems many Aboriginal

people face is reflected in the Provincial Health Officer’s Report. For example, in

referring to the high rate of injection drug use among Aboriginal people living in

Vancouver, he stated, “Like HIV, tuberculosis, and many other health problems, injection

drug use is a symptom of broader problems such as poverty and marginalization:” at p.

103.

[83] In his expert report, Dr. Miller summarized the evidence with respect to

Aboriginal people living in the Downtown Eastside (or “DTES”), as follows:

… the demographic data shows a large Aboriginal population concentrated

in the DTES. This group is largely single, relatively older, and living in

rental units at the bottom of the housing market. While the DTES

Aboriginal population exhibits some cohesion as a community, the

demographic picture indicates that the population might be particularly

subject to stereotypes held by the non-Aboriginal community. First, they

25

are not likely to be travelling about as family units, with relatively few

children and spouses present, and they are older and, and thereby likely

appear more “suspicious” and threatening. Second, because of their

mobility and places of residence, they are likely not to have easy access to

laundry facilities, and are more likely to appear unkempt to non-

Aboriginals. The demographic materials regarding health and disabilities

supports this picture.

It is widely known that First Nations health falls below national standards;

indeed, this is part of the public perception of Aboriginal people and

communities… Many of the chronic health conditions which are prevalent

in the Aboriginal community can cause deficits in balance, gait, or

appearance and can contribute to the likelihood that a non-aboriginal person

would perceive them to be “suspicious”, or appear to be intoxicated or

stoned, or simply unable to respond quickly to questioning from security

personnel, and hence appear to have an “attitude when approached”…

These discrepancies between the health indices of the Aboriginal and non-

aboriginal populations is likely even greater for the DTE and the

mainstream population as a whole. The incidence of health problems for the

Aboriginal population of the DTES is likely to be even worse than for the

Aboriginal population as a whole, given the average age.

…

The health of Status Indians in Vancouver is especially poor and ranks last

among the nineteen aboriginal regions on five health status measures…

Issues of appearance linked to health status are exacerbated in Vancouver

and the DTES. In brief, the particular characteristics of the Aboriginal

population of the DTES make them visible and to appear to conform to what

non-aboriginal stereotypes would suggest Aboriginal people are like.

Consequently, members of the Aboriginal community may differentially

appear “suspicious” to non-aboriginal people.

[84] I accept Dr. Miller’s evidence on these issues. It is amply supported by the

literature to which I have referred. The Aboriginal population of the Downtown Eastside

is marginalized, and multiply disadvantaged. Their demographics, typical health

problems and economic status combine to make them more likely to appear “suspicious”

or “undesirable” to a non-aboriginal person than others who do not share those

characteristics.

[85] Despite these problems, many witnesses who live in the Downtown Eastside

spoke about the area and the experience of living and working there in positive terms.

Ms. Radek described the Downtown Eastside as a close-knit community. She said that

26

many First Nations people live there, including many of her relatives. She said that the

area was safe “for us”, that it was a place where she could be happy and have a sense of

recognition. Adele Wagner described the Downtown Eastside as a “safe haven”, where

she very rarely had any trouble. She said that everyone watched over everyone else.

Angela Sterritt testified that, “although it has its moments”, in a lot of ways there is a

good sense of community in the Downtown Eastside.

[86] This evidence is consistent with what is reported in Healing Ways, where the

authors state:

The Aboriginal community is culturally diverse with people from nearly

200 different bands living in the city… Despite this diversity, there is a

sense of community, especially in the City Core where the majority of

people are single adults and live in single-room-occupancy units. A sense

of community is evident …This community spirit as well as areas with low

rental costs explain, in part, the large numbers of people living in [the City

Core]. (at p. 11)

[87] A number of witnesses, including Ms. Radek, described their experiences

shopping in the Downtown Eastside, other than at International Village. Given her

mobility problems and limited income, Ms. Radek shopped in the neighbourhood

frequently, usually on a daily basis. She said that she never had any problems, and

always found the staff, including the security guards at other stores, such as Army &

Navy and T&T Supermarket, cordial and friendly. The security guards at those stores

might open the door and give a friendly greeting. All other witnesses, including Ms.

Wagner, Ms. Sterritt, Ms. Savage, Mr. Chevillard, and Mr. Mack, who commented on

their shopping experiences in the Downtown Eastside, other than at International Village,

confirmed this positive experience.

C. International Village

1. DEVELOPMENT

[88] On October 23, 1990, the City of Vancouver published a by-law which amended

By-law 3575: CD-1 No. 6747. The stated intent of the by-law was to permit the

development of the International Village site as a comprehensive mixed-use

27

neighbourhood which would complement and be compatible with the character and

function of adjacent areas. The area covered by the by-law was roughly bounded by

Pacific Boulevard on the south, Beatty Street on the west, Pender Street on the north, and,

at its furthest extent, Columbia Street on the east. As such, it may be said either to border

on or be within the Downtown Eastside, depending on the geographical definition

adopted.

[89] Under the by-law, the development of International Village was to be consistent

with a number of objectives, which generally required the development of both new retail

and housing units, while at the same time ensuring that the new development would be

integrated with existing development. In particular, the by-law required International

Village to provide pedestrian links to adjacent areas.

[90] Part of the International Village development is the shopping centre at issue in

these proceedings. The International Village shopping centre occupies a city block,

bounded by Pender Street to the north, Abbott Street to the west, Taylor Street to the east,

and Keefer Street to the south.

[91] There are three main public entrances to the mall: the north entrance is directly

across from Vancouver Native Housing on Pender, the west entrance is on Abbott, near

the McDonald’s restaurant in the mall, and the south entrance is on Keefer, near the

Starbucks located in the mall. Each of those entrances has glass doors through which one

can see both in and out of the building.

[92] Among the shops located in the International Village mall during the time period

in issue in this complaint were the following: a Starbucks coffee shop, a McDonald’s

restaurant, a 7-Eleven convenience store on the first floor, and a food fair on the second

floor. The Starbucks and the 7-Eleven both have internal and external entrances. Also

located in the mall is a theatre complex on the third floor, from which the mall’s

commonly used name – “Tinseltown” – arises. There is a Skytrain station close to the

mall, near the corner of Georgia and Beatty. The mall is a convenient shortcut from

Pender to Keefer and the Skytrain station.

28

2. THE STATUTORY RIGHT OF WAY

[93] When the original developer was given permission by the City of Vancouver to

build International Village, it was required by by-law to grant the City a statutory right of

way over an atrium area and a pedestrian walkway: see the Minutes of the Special City

Council meeting, held June 22, 1989, which required the then developer to register a

statutory right of way for public access, including disabled access, to steps which it was

to be required to build from Keefer Street to Beatty Street, including access to the

neighbouring Skytrain station. That requirement was included in By-law No. 6747, dated

October 23, 1990, which required an excluded space, including an atrium, to be secured

by covenant and right of way.

[94] The pedestrian right of way followed an old railway line through the area. Parts

of that railway line are still visible. The statutory rights of way are described as follows

in the legal instrument ultimately filed with the Land Titles Office:

ARTICLE 2

ATRIUM STATUTORY RIGHT OF WAY

2.1

Pursuant to section 214 of the Land Title Act, the Owner hereby

grants to the City, subject to the terms and conditions set out

herein, the right, liberty and statutory right for the City to permit all

members of the general public at their will and pleasure, during the

normal operating hours of the Lands, to:

(a) pass and repass along and across the Atrium SRW Area, on

foot and in wheelchairs or similar devices which afford

mobility to injured or physically handicapped people; and

(b) be upon the Atrium SRW Area for rest, relaxation and

recreation.

…

ARTICLE 3

PEDESTRIAN STATUTORY RIGHT OF WAY

3.1

Pursuant to Section 214 of the Land Title Act, the Owner hereby

grants to the City, subject to the terms and conditions set out

herein, the right, liberty and statutory right of way for the City to

29

permit all members of the public at their will and pleasure to pass

and repass along and across the Pedestrian Walkway SRW Area

during the normal operating hours of the Lands for the purposes of

having access to and from the Atrium SRW Area, on foot and in

wheelchairs or similar devices which afford mobility to injured or

physically handicapped people.

…

ARTICLE 4

GENERAL

…

4.6

Nothing in this Agreement shall prevent the Owner of the Lands

from making and enforcing reasonable rules and regulations with

respect to the SRW Areas including, without limiting the generality

of the foregoing, the safe use, security, maintenance and repair of

the SRW Areas, the users thereof and the development of which the

SRW Areas form part and the control of noise and nuisance in the

SRW Areas and the development of which the SRW Areas form

part.

…

4.21

Notwithstanding anything set out to the contrary herein, the parties

agree that the City’s permission to the public to have the access

referred to in Article 2 and Article 3 herein shall not extend to the

riding of bicycles, skateboards or similar devices upon the SRW

Areas but the aforesaid shall include pushing, pulling of carrying

devices such as handcarts, riding carts (for the physically disabled)

baby carriages and children’s strollers. Moreover, the parties agree

that the Owner and those claiming through the Owner and their

respective agents may bar entry to or eject from the SRW Areas

any member of the general public who:

(a)

acts in a disorderly or offensive manner, molests, pesters,

interferes with or obstructs any other person on the SRW

Areas, appears intoxicated or commits or appears to commit

an illegal act;

(b)

presents a threat or an apparent threat to the safety of others

or to the security of any landscaping or improvements on

the SRW Areas;

30

(c)

refuses to leave the SRW Areas at close of the normal

operating hours of the Lands or after the end of an event,

activity or promotion as provided for in section 1.1(d) of

this Agreement;

(d)

(e)

smokes any substance, lights any fires or burns any material

on the SRW Areas;

apparently comes onto or apparently occupies the SRW

Areas to:

- conduct or attend a demonstration, rally or performance

(whether in concert with others or not);

- distribute or post pamphlets or handbills, or other printed

material;

- broadcast music, singing or offensive noise;

- picket;

- make speeches; or

- beg, panhandle or engage in any commercial activity; or

(f)

interferes with the Owners’ ability to carry on such

activities, events and/or promotions as set out in paragraph

1.1(d) of this Agreement,

it being agreed by the parties hereto that no part of the SRW Areas is in any

sense a public park and that nothing herein contained is intended to or does

establish or create a public park.

[95] The effect of the statutory right of way is to give pedestrians the legal right to pass

through the mall and to enjoy the mall’s atrium, regardless of whether they are shopping

in the mall, subject only to the mall’s rights to bar entry or eject members of the public

who misbehave in the manners set out in Article 4.21. Evidence from Henderson and

Securiguard employees demonstrated that they were generally not well-informed, if at all,

about the existence of this right of way and the resulting right of pedestrians to pass

through the mall. So far as Henderson was concerned, Mr. Lai was aware in a general

way of the right of way, but Mr. Molnar, the current mall manager and former

Securiguard accounts manager, was not. Of the Securiguard employees, Mr. Power was

the best informed; while he was not told of the right of way during his training, he did

31

become aware of the right of way a few months after he began working at the mall. He

testified that after he became aware of the right of way, he told other security guards

about it. Whatever efforts Mr. Power may have made to inform other security guards

about the right of way, they were not effective. Neither Mr. Clulow nor Mr. Skead knew

about the right of way; they both thought the mall was like any other mall – private

property with visitors having a license to enter which could be revoked at any time for

any reason. Mr. Skead testified that he was told many times by management that people

were to be allowed in so long as the owner allowed them in. When shown a copy of the

statutory right of way in cross-examination, his comment was that he had never seen it,

and that was too bad because it would have been quite helpful and useful. Other

witnesses’ evidence and Securiguard’s Security Occurrence Reports showed that other

security guards were even less well-informed, telling persons who wished to enter the

mall to “cut through” that they were not permitted to do so.

[96] As Mr. Powers’ Security Occurrence Report for the May 10 incident with Ms.

Radek demonstrates, even if some security personnel were aware of the existence of the

right of way, it does not necessarily mean that they understood it properly or complied

with it. In his Report, Mr. Power wrote that he told Ms. Radek “that under the private

property act security can deny access to anyone so long as it does not violate any civil

rights … the land and building was owned privately … and the policies are listed under

the private property act.” I do not know what Mr. Power intended by his references to

“the private property act”; there is no statute by that name in the province of British

Columbia. In any event, the idea that security can deny access to anyone so long as it

does not violate civil rights is not consistent with the limits placed upon the mall’s

property rights by the terms of the right of way. Further, the policies concerning

security’s ability to deny access which Ms. Radek was seeking are not listed under the

“private property act” (whatever this might be a reference to), but were included within

the statutory right of way itself, which defined the bases on which access to the mall

could be denied, and in the site post orders adopted by Securiguard as its ejection policy,

which I describe below at paras. 126-131.

32

3. CONTROVERSY IN THE COMMUNITY AND COMPLAINTS

ABOUT SECURITY AT INTERNATIONAL VILLAGE

[97] As I indicated above in addressing the temporal scope of the complaint,

International Village opened to the public in stages, starting in December 1999, when the

Tinseltown theatre opened. At this time, the mall was still under construction. More

stores opened up through the winter and spring of 2000.

[98] The building of the International Village was a matter of some significant

controversy in the community. Some community activists feared that its construction

would result in the “gentrification” of the neighbourhood, and the resulting displacement

of its existing, poorer residents. Others hoped that the development would revitalize the

neighbourhood, and provide needed shops and services to an under-serviced area of the

City. For example, in his evidence, Ed McCurdy reflected both sides of this coin,

commenting both on how he was initially excited about a new shopping area opening up

in the Downtown Eastside and on his concerns about whether the upscale shops which

the mall hoped to attract would be accessible to the folks living in the neighbourhood.

Generally, he thought the mall would be a “real stretch” in that neighbourhood. In their

evidence, Ms. Sterritt and Mr. Laviolette also both reflected the competing sentiments for

and against the building of a high-end mall in this area.

[99] The controversy continued after International Village opened its doors to the

public, starting in December 1999. The mall, as envisioned by its developers, was to be

primarily a high-end fashion and entertainment complex, with clothing, food and other

goods available from around the world. Its intended market was consumers with

significant disposable income, not the predominantly poor residents of the Downtown

Eastside. At the same time, the mall had within it stores and services affordable and

attractive to those of more modest means, such as the theatre, the 7-Eleven, the

McDonald’s, the restaurants in the food court, and Starbucks.

[100] As time went on, individuals and community groups complained about the

security practices at International Village and their effects on residents of the Downtown

Eastside. For example, Mr. McCurdy testified about his personal observations of the

33

treatment of low-income, Aboriginal and other marginalized people at International

Village, as well as the stories he heard in his capacity as a community support worker in

the Downtown Eastside, both while employed first by the Portland Hotel Society and

later with VANDU, with whom he began to work as a Volunteer Coordinator in June

2001. The VANDU membership was concerned about the treatment they were receiving

at International Village.

[101] In response to the concern among the VANDU membership, Mr. McCurdy

organized a movie night out at Tinseltown with a number of members of VANDU in the

summer of 2001. Mr. McCurdy’s evidence with respect to this event is dealt with at

length below at paras. 334-339.

[102] VANDU then decided to organize a demonstration at International Village, which

was held in October 2001. The demonstration was covered by a number of media outlets.

VANDU members and their supporters walked through the mall, carrying picket signs

protesting about the security tactics employed there. Approximately 200 people

participated in this protest; Ms. Radek was one of them. The protest was peaceful.

Security personnel did not interfere with the demonstration. Again, Mr. McCurdy’s

evidence with respect to this event is discussed below at paras. 341-344.

[103] A series of letters was published in the Westender, a free community newspaper,

with respect to security practices at International Village. I do not rely on those letters to

establish the truth of their contents, but rather to demonstrate the nature of the

controversy and to give some of the context to the present complaint. The letters were

published starting in the August 23-29, 2001 issue and continued through the October 25-

31, 2001 issue. Writers complained about the treatment they said they had either

received from security staff or had witnessed security staff giving others at the mall.

Among the issues raised were people not being let in because of open lesions on their

face or body, people being told they could not walk through the mall, and people being

physically thrown out of the mall. Allegations were made that security personnel were

stopping people they “don’t like the look of”, and that this constituted discrimination,

albeit on unspecified grounds. Mr. Dunn responded to the letters in his own letter

34

published in the September 20-26, 2001 edition of the Westender, stating his pride in the

accomplishments of the mall’s security team. He said that he was surprised by some of

the matters raised in the letters, and asked the letter writers to visit him in the mall’s

management office. He wrote:

The overall goal and obligation of security is to provide the safest and

friendliest possible environment for our customers to shop. In order to

meet this criteria security will react by justified means based on any

previous observed delinquent activity. This may include pan-handling,

loitering, blatant abusive language, stealing and substance abuse.

[104] Other community advocacy organizations became involved in the controversy.

Ian MacRae, president of the Downtown Eastside Residents’ Association, wrote in

response to Mr. Dunn. His letter, published in the September 27-October 3, 2001 edition,

reflects the general tone of the controversy:

Matt Dunn and the troops at International Fortress Shopping Centre

(Tinseltown) are not alone in their concerns in “evolving the neighbourhood

into a safer place”… But he will stand isolated and frustrated as long as he

embraces “social profiling” attitudes towards low-income people of the

Downtown Eastside.

It’s not their fault that merchants, homeowners and investors were sold a bill

of goods when they were promised that property values would soar instantly

and an upscale population would flood the area overnight.

By opening a McDonald’s and a 7-Eleven store in the mall how could you

not expect that low-income people would frequent these outlets among

others?

People tell us they have been abused on site in a manner never witnessed at

Pacific Centre mall or any major department store uptown. Moreover,

people can hardly complain about it when they are thrown out the door

before they get 20 feet past it because they look like they might steal

something.

If you and your associates are sincere in improving the safety of our

neighbourhood, try initiating some dialogue with the people who were here

decades before your project was dreamt of. But don’t expect anything but

hostility in return if you can’t manage a modicum of human respect to bring

to bear on the subject.

[105] The Carnegie Community Centre Association also became concerned about

reports of mistreatment at International Village. On October 23, 2001, Mr. Laviolette

35

wrote a letter to Mr. Lai on behalf of Muggs Sigurgierson, President of the Association,

as follows:

For over a year now we have consistently heard of and observed first hand,

the mistreatment of customers at International Village by your security. In

most cases, the level of confrontation is intentionally escalated by security

in order to justify physical removal out of the building. Often security

accuses an individual of theft – “we caught you on video” – yet police are

not called and charges are never laid. It is assumed to be a tactic to justify

eviction. Security aggressively targets anyone who appears to be low to

middle income, from the Downtown Eastside neighbourhood, eccentrically

dressed or young.

We understand that your building is private property and you have a right to

protect this asset with security. However, you are also trying to run a

business and have retail tenants who need customers. Perhaps many of the

individuals abused by your security do not have the financial ability to shop

at some of the clothing stores, they do, however, have the means to

patronize the food court, McDonalds, Starbucks and Tinsel Town.

With regard to Tinsel Town, we are aware of a number of people whose

movie-going experience has been ruined by security. For example security

follows them in and out of the building or into the washroom or will not

allow them access to the food court before or after a movie. These same

people will not go to movies at Tinsel Town anymore. The theatre is

developing a reputation as an unwelcome place.

If it is your policy that security acts on a mandate of zero tolerance towards

low-income customers, without judgement or professionalism, then may we

suggest you clearly post your entrance policies in order to avoid future

verbal and physical abuse.

[106] On November 22, 2001, Mr. Dunn responded to the letter which had been sent to

Mr. Lai. In it, he denied that the security personnel at International Village distinguished

between people on the basis of their race or income level. It is interesting to note that Mr.

Dunn denied that security personnel distinguished between people on the basis of race,

given that this allegation had not been made in the letter to which he was responding. He

provided explanations for two of the incidents referred to in the letters to the Westender.

He stated:

Quite frequently, people inject drugs in our washrooms, consume alcohol on

our benches, deal drugs from our pay phones, and sift through our garbage.

We are forced to ask these individuals to leave in order to provide a safe

36

environment for our Centre. Unfortunately, some people observing these

actions may misconstrue them as being discriminatory.

At International Village Shopping Centre, our doors are open to everyone.

However, we will not, and cannot, tolerate any individual that enters the

centre to commit an illegal activity or demonstrates behaviour that places

our other valued patrons at risk. We stand proudly behind our security

policy and record.

[107] In both his letter to the Westender and his letter to the Carnegie Community

Centre Association, Mr. Dunn invited people who felt they had been mistreated to visit

the mall’s management office, presumably to make a complaint. The evidence with

respect to Henderson’s and Securiguard’s response to complaints demonstrated, however,

that it was difficult to make complaints of discrimination and other mistreatment by

security staff, and that, with one exception revealed in the evidence, any complaints

which were made were not taken seriously.

[108] In this regard, I note that it emerged in the evidence in the course of the hearing

that some sort of written record of complaints was to be kept by security staff at the mall.

However, no records of complaints were produced by either respondent, and the matter

was not pursued by Ms. Radek in the hearing. Without faulting any party for the absence

of these documents, it is unfortunate that these documents were not introduced, as they

may have been of assistance to me in understanding what complaints were made to the

respondents and how they were dealt with.

[109] In any event, the evidence which was before me established that complaints were

not taken seriously by the respondents. I draw on the following examples in coming to

this conclusion. David Heibert wrote a letter which was entered into evidence. Mr.

Heibert did not testify, but I am prepared to give his letter some weight, particularly in

light of the fact that its contents were substantially confirmed by Mr. Chevillard’s oral

evidence. Mr. Chevillard described Mr. Heibert as a light-skinned native, very intelligent

and well-spoken. At the time of the events described in his letter, he was living with

AIDS, which had progressed to a form of cancer which caused lesions to appear on his

body. In his letter, Mr. Heibert describes entering International Village and being told by

security personnel that he had to leave immediately. He asked why, and was told it was

37

because he had open wounds. Despite the fact that the markings were cancerous lesions,

not wounds, Mr. Heibert was escorted out instantly. He immediately phoned

International Village and asked who the manager was. The person who answered the

phone refused to tell him who the manager was or to whom he needed to report his

complaint. On a subsequent occasion, when the lesions were no longer visible, Mr.

Heibert attempted to cross the mall to get from Vancouver Native Housing, where he

lived, to the Skytrain station. A security guard told him “my kind was not welcome in

the International Village”, and escorted him out. He does not report attempting to make

another complaint to staff at the mall, although the experience affected him deeply. One

indication of the impact of these events on Mr. Heibert is that he took the trouble to write

the letter in question.

[110] In addition to providing some confirmation of Mr. Heibert’s experiences, Mr.

Chevillard also testified more generally about calling the mall about complaints that he

received from Vancouver Native Housing tenants about their treatment by mall security.

He said that he received 60 or 70 complaints from tenants about mall security. He said

that he called the mall at least half a dozen times about such complaints in the first few

months he worked at the facility. Each time, he would ask for security. He did not recall

the names of the persons he spoke to. What he did recall was that each time he made a

complaint, he would receive the same response: the person was intoxicated and causing a

disturbance. On at least one occasion when he called to make a complaint, Mr.

Chevillard was hung up on. It was clear from Mr. Chevillard’s evidence that he did not

believe that making complaints to the mall about tenants’ experiences with security was a

useful exercise.

[111] In reviewing the Security Occurrence Reports, I noted a number of incidents in

which people complained about security’s conduct, including allegations of racism. I

noted cases in which people who wanted to pursue their concerns further and speak to the

head of security or the mall manager were told that “we do not allow anyone in the office

area” or that they would not be told the identity of those people. Guards would refuse to

tell people wishing to make a complaint their name. There was no evidence that any of

the complaints recorded in those Reports were followed up on or investigated in any way.

38

[112] Mr. Skead testified that complaints about security guards happened all the time.

He said that whether they would be investigated depended on the nature of the complaint.

I deal further with Mr. Skead’s evidence about racism complaints below at paras. 529-

532.

[113] Mr. Power could not recall if he ever received any complaints about security

guards’ conduct. It should be recalled that, as site security manager, Mr. Power was

responsible for disciplining guards for any misconduct. He was also responsible for

reading the Security Occurrence Reports containing the complaints to which I have just

referred. Mr. Power testified that if he had received any complaints, he would have

reported them to Mr. Dunn or the Assistant Mall manager, Dennis Le. In my view, Mr.

Power’s lack of recall on this subject is reflective of the somewhat dismissive attitude

which the respondents had to complaints about security guards’ conduct. That attitude

could also fairly be characterized as defensive, when one considers, for example, the

entries in the Banned Books in which persons attempting to film security guards’ conduct

were told they could not do so, and were warned that they would be banned if they

attempted to continue to do so.

[114] Mr. Clulow testified that he was aware of the controversy in the Westender about

security practices at International Village. He said he kept a file of the articles and gave

copies of the articles to Matt Dunn and Dennis Le. He said he also made sure that Mr.

Power was aware of them. On a site visit made by Louie Molnar when he was account

manager, he told him about the articles. Mr. Clulow said that Mr. Molnar gave them

advice and encouragement, in particular that they should stick to the site post orders and

give everybody the benefit of the doubt.

[115] There is one example in which the evidence showed that Securiguard responded

to a complaint. Mr. McCurdy testified about an incident in which he was the subject of

inappropriate verbal taunts and lewd gestures by a guard at the mall. I deal with this in

greater detail below at paras. 344-345. In what I believe was a reference to this incident,

Mr. Power testified that “one supervisor reacted quite inappropriately for his position.”

He said that he and Ken Doern, Operations Manager for Securiguard, met with Mr.

39

McCurdy and another individual, whom he believed was from VANDU, about this

incident. Mr. McCurdy was given a letter of apology from Tim Graham, a Securiguard

shift supervisor, and Mr. Power said that they also talked about eviction problems.

[116] I deal below with Ms. Radek’s attempt to complain to Mr. Dunn about her

treatment in the May 10 incident, as well as her earlier efforts to discuss with Mr. Clulow

her concerns about Ms. Hayer’s previous conduct. For present purposes, suffice it to say

that her experience also tends to suggest that both mall management and Securiguard

personnel did not treat complaints about discriminatory treatment seriously. It is

important to note that Mr. McCurdy’s complaint was quite different in nature to

complaints about the treatment of Aboriginal and other disadvantaged persons: Mr.

McCurdy was neither Aboriginal nor disadvantaged. He was a person with some

influence and power in the community, with substantial previous work experience in

media relations. He knew Mr. Doern from previous interactions while Mr. Doern was

employed with the Vancouver Police Department. It is not surprising that his complaint

about conduct directed at himself would have been treated seriously. By contrast, the

respondents’ underlying operating assumption appears to have been that any complaints

raised about the conduct of security staff towards disadvantaged, and especially

Aboriginal people, were unjustified and did not warrant further investigation or

consideration.

[117] The evidence is clear that International Village has struggled financially. It did

not open as scheduled, and had difficulty attracting the kinds of retailers it had hoped for.

It has also experienced difficulty attracting the clientele which it hoped would patronize

its stores. Many businesses have shut down, unable to succeed. One of those businesses

was D’Vine Health, the health food store which Ms. Grant’s daughter owned and in

which Ms. Grant invested. The mall suffered from the negative publicity it received,

including a story in the Vancouver Sun on November 19, 2001, which referred to protests

in the mall and the closure of a number of businesses, including D’Vine Health.

40

[118] The second floor high fashion area has not prospered to date, although some of

the other businesses, such as the theatre, Starbucks, 7-Eleven and McDonald’s, appear to

be successful.

[119] The controversy about International Village and its security services was reflected

in an inspection report produced by officials with the Security Programs Division of the

Ministry of Public Safety and Solicitor General with respect to an inspection of

Securiguard in November 2001. A note appears in the report as follows:

Tinsel Town has been subject of negative publicity recently in the local

press as regards rough treatment of persons not welcome to this high-end

entertainment and shopping complex. This has been denied by Complex

Owners and Management at Securiguard. It is situated next to “the strip”

in Downtown East Hastings. Advised by the SP [it is assumed this refers

to “supervisor”] on site the “druggies” and “dealers” rarely enter the

property now.

[120] The controversy over the presence of International Village in the area, and the

kind of shopping environment which it was attempting to create, as well as the practices

of the security personnel working there, provide an important backdrop to the present

complaint.

D. Securiguard

[121] Henderson contracted with Securiguard to provide security services at

International Village. Securiguard provides similar services to a number of other clients.

It was Securiguard who employed the security guards who worked at International

Village during the times covered by this complaint. Subsequently, Henderson put the

security contract out to tender, and, as a result, contracted with En Guard Security

Limited for these services, starting in June 2003.

[122] Securiguard had an Accounts Manager responsible for International Village.

From in or about October 2001 to August 2002, this was Louie Molnar. Prior to that, it

was Charles Gallagher. The dates of Mr. Gallagher’s employment were not revealed in

the evidence. Mr. Molnar testified; Mr. Gallagher did not.

41

[123] During Securiguard’s tenure at the site, it employed a site security manager. The

site security manager reported to Henderson through its mall manager. Through most of

this period, that was Matt Dunn, who did not testify in this hearing. A number of people

acted as Securiguard’s site security manager over this period, including Tyrone Power,

who did testify. Reporting to the site security manager were a number of shift

supervisors, including Peter Clulow and Jim Skead, both of whom testified. Mr. Skead

continues to work at the site, where he is now employed by En Guard as the site security

manager.

[124] Mr. Power testified that he received his instructions from the mall manager. He

said that his duties including overseeing the guards, relations with mall tenants, and

relations with patrons. In the latter regard, he referred to “meeting and greeting” visitors

to the mall, showing patrons around and giving directions. He said that he was

responsible for disciplining guards when necessary, for example if they were rude to

patrons, and that he would either speak to them, or release them if the situation was

serious enough.

[125] The number of people employed as security officers at the site varied over time.

In general terms, it is fair to say that significantly more security guards were employed by

Securiguard when the mall opened than were later. A variety of reasons, including both

the mall’s financial difficulties and concerns over what many people saw as an

oppressively large security presence, led to the number of security guards being reduced

over time. While estimates varied somewhat, I find that when the mall first opened and

through the early part of 2001, up to 10 or 12 security guards would be on site at the same

time during the day shift. This constituted a very visible security presence. In particular,

guards would be posted at each entrance to the mall. Mr. Power testified that, after the

October 2001 VANDU protest, the numbers were reduced on instructions from

Henderson. The reason given was budget constraints. By the time of the hearing, only

four guards were present at any given time.

42

E. The “Site Post Orders” – the Ejection Policies

[126] Two written ejection policies were entered into evidence. They are both on

Securiguard letterhead, and entitled “International Village – Site Post Orders”. The first

is dated March 30, 2000, and the second May 6, 2002. In view of their centrality to the

issues raised in this case, I reproduce them in full, beginning with the March 30, 2000

document:

Securiguard

International Village

Site Post Orders

EJECTIONS

The site has a zero tolerance procedure in place to keep suspicious people

and vagrants off the site. All suspicious people and vagrants must be denied

access at the main doors. Things to look for are:

-

ripped clothing

dirty clothing

attitudes when approached

non willingness to answer any questions we may propose

talking to themselves

open sores and wounds on face and body

red eyes

acting intoxicated or stoned

bothering customers

begging for money or cigarettes on the street

having bad body odour

If at any time a vagrant or suspicious person is seen in the shopping centre

then immediately approach them and remove them from the site. If they are

borderline suspicious follow them from a close distance so they know they

43

are being followed. If they cause any trouble then remove them

immediately.

In the event you must remove someone from the property ensure that you

complete, in detail, an occurrence report detailing the person and the reasons

that he/she was removed from the property.

March 30, 2000

Page 30 of 35

[127] According to Mr. Clulow, the March 2000 site post order was written by the then

Accounts Manager, Mr. Gallagher. In contrast to Mr. Clulow, Mr. Power testified that

the March 2000 site post order was a “generic” post order that Securiguard had for use on

any site, which could then be modified to suit a particular site. He thought it might have

come from a construction site, as it did not, for example, discuss how to deal with

shoplifting, as it might have been expected to, had it come from a shopping mall. Given

that Mr. Power was the site security manager for most of the time this site post order was

in force, I prefer his evidence on this point. It is also consistent with Mr. Molnar’s

evidence about how security companies usually have generic post orders and that site

security managers work with clients to make changes appropriate to the particular site.

[128] The May 6, 2002 policy reads as follows:

Securiguard

International Village

Site Post Orders

EJECTION

The site has a zero tolerance procedure in place to keep suspicious people

and transients off the site. This procedure is required in order to provide a

safe environment for our customers and merchants. Things to look for are:

-

attitudes when approached with greeting

acting intoxicated or stoned

bothering customers

44

-

begging for money or cigarettes inside or around the shopping

centre

If at any time a transient or known troublemaker is seen in the shopping

centre then immediately approach them and remove them from the site. If

they are borderline suspicious follow them from a close distance. If they

cause any trouble then remove them immediately. If you are notified by the

CCTV operator that a suspicious person is in the centre approach the person

and assess that person up close. If the person does not show any outward

appearance that he/she may be a transient or a drug user and he/she appears

coherent let them in the centre but keep a close eye on them. Inform the

guard to the location they are headed to maintain constant contact.

In the event you must remove someone from the property ensure that you

complete, in detail, an occurrence report detailing the person, what was said

and the reasons that he/she was removed from the property. People can

only be removed for behavior related problems.

May 6, 2002

Page 36 of 41

[129] I note that both site post orders appear, by virtue of the “page x of y” references at

the bottom of each page, to have been taken from larger manuals. Security personnel

witnesses referred in their evidence to such manuals. Those manuals were not entered in

to evidence, which left the Tribunal without evidence of the respondents’ other written

policies, which may or may not have been relevant to the complaint.

[130] Mr. Power and Mr. Clulow were both involved, in consultation with Mr. Dunn, in

drafting the second site post order. Mr. Clulow said that Mr. Power started the drafting

and that he finished it after Mr. Power left. According to Mr. Clulow, the changes were

made because they wanted to emphasize that persons could only be removed for

behaviours, not characteristics. They also wanted to simplify the site post order and

reduce training time, as the first one was perceived as being too complicated for security

guards to use. He said that after he had finished drafting the second site post order he

gave it to Mr. Dunn for his review. While Mr. Power denied that the site post order was

revised as a result of public feedback, saying it was simply time for it to be redone, he

also testified that the protest that was held at International Village by VANDU in October

45

2001 sparked a keen interest to get the new site post order drafted “real quick”. He also

said that he was instructed to revise it by Mr. Dunn and Mr. Gallagher.

[131] Mr. Clulow testified that no member of the public or mall tenants would ever be

shown the site post orders – they were only shown to the security guards. I accept this

evidence, as it is consistent with the fact that Ms. Radek was not shown a copy when she

requested it during the May 10 incident.

F. Prejudicial Attitudes and Stereotypes Commonly Held About

Aboriginal People

[132] Dr. Miller gave expert evidence about commonly held stereotypes and prejudicial

attitudes about Aboriginal people. I found this evidence to be of substantial assistance.

[133] As explained by Dr. Miller, stereotypes are exaggerated beliefs about a category

of people. Members of that category are then assumed to share common traits. Such

stereotypes allow for the simplification of social complexities, and can lead to prejudicial

attitudes which can, in turn, serve as the basis for discriminatory behaviour towards

members of the stereotyped group.

[134] Dr. Miller described two broad stereotypes about Aboriginal people: the “noble

savage” and the “degenerate or degraded Indian”. These stereotypes emerged historically

and have persisted to the present, where they are reinforced in the media and in private

and public discourse. The noble savage signifies the idea of Aboriginal people living in

what are seen by non-aboriginals as traditional ways, representing human society as it

existed before the advances of civilization. The degraded Indian signifies Aboriginal

people who are thought to have lost their link with their traditional ways but have not

succeeded in being fully assimilated into mainstream society. While the noble savage

image may be seen as positive and the degraded Indian as negative, the two stereotypes

serve to reinforce one another and together provide little scope for seeing Aboriginal

people as they actually are. In particular, the noble savage stereotype serves to reinforce

the notion of decline in the degraded remnants of partially assimilated Aboriginal

peoples.

46

[135] Dr. Miller identified a number of currently held stereotypes about Aboriginal

people. These included the following:

 Aboriginal people are backwards-looking and stand in the way of

social progress;

 Aboriginal people are non-productive and live by donation/welfare,

ungratefully taking more than their share of society’s resources – the

“deadbeat” image;

 All Aboriginal people drink and are alcoholics – the “drunken

Indian” image;

 Aboriginal people are violent and prone to petty crime;

 Aboriginal people are lazy and will not work or keep a steady job;

 Aboriginal people are unhealthy and have a fatalistic disinclination

to do anything about their health and other problems;

 Aboriginal people are poor and live in a permanent under-class;

 Urban Aboriginal people are decultured or disorganized; and

 Urban Aboriginal people are degraded drug and alcohol abusers and

sex-trade workers (an image reinforced by the recent publicity about

the murder of large numbers of women from the Downtown

Eastside, many of whom were Aboriginal).

[136] The Vancouver/Richmond Health Board publication, Healing Ways, also noted

the pervasive, continuing reach of such negative stereotypes about Aboriginal people:

Despite the length of time Europeans have been here, there is still a lack of

understanding about Aboriginal people and their circumstances. They still

negatively judge Aboriginal people based on blanket assumptions and

negative stereotypes rather than considering each person’s unique

circumstances. The general public assumes that Aboriginal people have

everything given to them and should be rich. However, these ‘gifts’ have

had the negative impacts of loss of self-esteem, language and connections to

land and tradition. (at p. 13)

[137] It is important to note that urban Aboriginal people may be subjected to

particularly negative stereotyping. While rural Aboriginal people, and the reserves on

which they may live, may also suffer from adverse stereotyping, they may also benefit

from some of the more positive associations of the noble savage, including the idea of

47

Aboriginal environmentalism and the maintenance of traditional cultural patterns. Urban

Aboriginal people, on the other hand, are, as noted above, perceived as living in poverty,

on welfare, in a decultured, degraded state.

[138] Dr. Miller discussed the significance of such stereotypes in the following terms:

The importance for these stereotypes is that, as noted, they funnel

perceptions. Humans do not operate as blank slates receiving external

stimuli; rather, information is processed through preexisting systems of

schematized and abstracted knowledge. Humans require a cognitive format

to accept information and these social schema direct our attention to

relevant information and guide the interpretation of the external world.

Further, these schema create a strong conservative bias in the thought

process as people place stimuli into existing categories and ordinarily reject

discordant observations. In the case of interactions between Aboriginal

peoples and members of non-aboriginal society, the non-aboriginals channel

their observations through their existing schemas, or understandings of

them.

[139] The insidious power of the kinds of stereotypes which Dr. Miller discussed arises,

in part, from the fact that, tragically, some of them have a distorted basis in reality. For

example, the statistical evidence presented by Dr. Miller showed that Aboriginal people

are, on average, much more likely to suffer from certain kinds of health problems than

the general public. Alcoholism and other forms of substance abuse are real and pervasive

problems within the Aboriginal community. As is discussed in the Healing Ways report,

contact with European civilization has had negative effects on Aboriginal people:

Being culturally sensitive involves having an understanding and

appreciation of the consequences of European contact on Aboriginal people.

With loss of language and externally imposed denial of ancestry came a

sense of confusion and loss of self-esteem, which resulted in alcoholism and

traditions not being passed down. (at p. 13)

[140] These sociological realities do not, of course, mean that such negative stereotypes

are true of all or any particular Aboriginal person. But their partial reality serves to

reinforce the stereotypes, which are then applied to channel mainstream society’s

perception of Aboriginal people as a whole. Thus, for example, as Dr. Miller testified in

cross-examination, there are healthy, prosperous Aboriginal people, but the stereotypes

act to make them typically not even be perceived to be native. They blend in with

48

mainstream society and become invisible. Such people therefore do not serve to negate

the stereotypes, as they are not seen as evidence to the contrary.

[141] According to Dr. Miller, the stereotypes about Aboriginal people which he

discusses are reinforced for all of mainstream, non-aboriginal society. This includes non-

Caucasian people and immigrants to Canada due to their exposure to North American

media and public discourse. Dr. Miller was careful to point out in cross-examination,

however, that the existence of these stereotypes does not mean that any given individual

will necessarily share or accept them. Rather, all members of the public live in an

environment where these stereotypes are available as part of the enculturation process.

[142] Dr. Miller also testified in cross-examination that a person may hold and apply

these negative stereotypes without being conscious of doing so. In other words, a

person’s perception of and actions towards an Aboriginal person may be unconsciously

affected by these stereotypes.

V. Facts Relating to the May 10, 2001 Incident

[143] Ms. Radek and her friend, Ms. Wolfe, both testified about the May 10, 2001

incident. While not directly involved, Brent Houston, Ms. Radek’s boyfriend, also gave

some evidence with respect to this incident. The female security guard who was involved

in the crucial initial interaction, Kuljit Hayer, did not testify. Her Security Occurrence

Report was, however, entered into evidence. The security personnel who were called in

to assist, Mr. Clulow and Mr. Power, testified; their Security Occurrence Reports were

also entered into evidence. Constable Elvis Bellia and Constable Robert Gough, both of

whom responded to a 911 call made from the scene by Ms. Radek, testified on behalf of

the respondents. Vancouver Police Department records made with respect to their

involvement, in particular Constable Bellia’s report, were entered. A video made by

Securiguard which recorded some of the incident was also introduced into evidence.

Given that the video was incomplete, did not have an audio track, and was of poor visual

quality, it was of little assistance to me.

49

[144] While some of the basic facts are not in issue, there are some conflicts in the

evidence. As a result, the credibility of the witnesses testifying about these events is in

issue. In assessing the evidence about this and all other incidents, I have been guided by

the principles stated by the British Columbia Court of Appeal in Faryna v. Chorny,

referred to above at para. 19.

[145] Only Ms. Radek and Ms. Wolfe gave viva voce evidence about the initial

altercation with Ms. Hayer. In general, I found their evidence with respect to this event

credible, and I rely on it. Where their evidence differs, I generally prefer Ms. Radek’s, as

I find that Ms. Wolfe’s recall and ability to relate events was adversely affected by her

illness. Where their evidence differs from the information contained in Ms. Hayer’s

Security Occurrence Report, I prefer their evidence, as they gave oral evidence under a

solemn promise to tell the truth and were subjected to cross-examination. I note,

however, that some aspects of their evidence were confirmed by Ms. Hayer’s Report, as

indicated below.

[146] With respect to subsequent events, the two security officers called in to assist, Mr.

Clulow and Mr. Power, both testified. So too did the two police officers later called to

the scene, Constables Gough and Bellia. Mr. Houston also gave some testimony about

subsequent events. In general, where there is a conflict in the evidence about subsequent

events, I prefer Ms. Radek’s evidence and to a lesser extent that of Ms. Wolfe to that of

the security officers and police officers. Of the two police officers, I found Constable

Bellia to be the more reliable witness. While Ms. Radek accused him of admitting to be a

racist, and made a complaint about his conduct to the Police Complaints Commissioner,

he still gave his evidence in a straightforward and relatively balanced fashion. This

stands in contrast to Constable Gough, who appeared to allow his personal feelings to

colour his testimony. I return to this issue below at paras. 166-170 and 176-177. Finally,

while Mr. Houston’s evidence was relatively limited in scope, I found his evidence to be

careful and balanced and I rely on it.

[147] I find that the following occurred.

50

[148] On May 10, 2001, at about 5:00 p.m., Ms. Radek and Ms. Wolfe walked in to the

mall through the north entrance from their homes at Vancouver Native Housing, across

Pender Street. They were on their way to have a coffee at Starbucks. Ms. Radek testified

in cross-examination that on that date she was limping due to blisters she had developed

from bike riding. There was no evidence to suggest that Ms. Radek or Ms. Wolfe were

intoxicated, dressed inappropriately or were otherwise behaving inappropriately in any

way. They were simply enjoying one another’s company and looking forward to their

coffee.

[149] Ms. Radek saw Ms. Hayer through the glass doors. I accept Ms. Radek’s

evidence that she had had a number of previous interactions with Ms. Hayer, in which

she had found Ms. Hayer rude and demanding. I discuss some of these interactions below

at paras. 189-196. I reject the suggestion in Ms. Hayer’s Report that she had not seen or

talked to Ms. Radek before.

[150] Ms. Radek and Ms. Wolfe proceeded through the glass doors. I accept Ms.

Radek’s evidence that Ms. Hayer demanded to know where they were going. I do not

accept the information in Ms. Hayer’s Report that she simply said “hello”. Nor do I

accept the information contained in Ms. Wolfe’s note of the incident that Ms. Hayer

asked “if we needed help”. In any event, whatever the precise words were, I find that

Ms. Hayer’s tone and manner were demanding and confrontational. This was not a

friendly greeting. Ms. Radek and Ms. Wolfe ignored Ms. Hayer, and kept going in the

direction of Starbucks. Ms. Hayer followed the two women, asking further questions

about where they were going and what they were doing. I do not accept the information

in Ms. Hayer’s Report that she merely said “Can I help you to find any store in the mall.”

[151] Ms. Hayer followed the two women closely. This is consistent with the site post

order, which directed guards to follow “borderline suspicious” people “from a close

distance so they know they are being followed”. In her note, Ms. Wolfe characterized it

as following them around “like we were criminals”. Finally, Ms. Radek testified that she

had had enough and challenged Ms. Hayer, asking her what “her problem” was, and why

she did this all the time. Ms. Wolfe’s note about the incident confirms the tone of the

51

exchange. Ms. Hayer’s Report corroborates this evidence, as she wrote that Ms. Radek

“turned around and yelled at S/O Hayer ‘why you are harassing me?’ She asked S/O

Hayer that she wants to talk to the supervisor or manager … I went to Starbuck’s

everyday and you harass me everyday….” Ms. Hayer’s Report substantiates both that

she was following Ms. Radek and Ms. Wolfe (thus requiring Ms. Radek to turn around to

speak to her) and that Ms. Radek was saying at that time that Ms. Hayer harassed her on

an ongoing basis. This is consistent with Ms. Radek’s allegation before me that Ms.

Hayer had harassed her on previous occasions, which I accept.

[152] The discussion continued between Ms. Radek and Ms. Hayer in a similar vein,

with Ms. Radek challenging Ms. Hayer to justify her actions. Ms. Wolfe also

participated, although to a lesser extent than Ms. Radek. I accept Ms. Radek’s evidence

that Ms. Hayer did not provide an explanation as to why she did this all the time. Rather,

she was telling Ms. Radek and Ms. Wolfe that they had to leave the building. This is

again consistent with the site post order, which provides that guards are to look for

“attitudes when approached” and “non willingness to answer any questions we may

propose”, and that if a person who is being followed causes “any trouble”, they are to be

removed. According to Ms. Hayer’s Report, Ms. Radek was yelling. It was clear from

Ms. Radek’s evidence that she felt insulted and was angry about Ms. Hayer’s continued

conduct. She was tired of being “treated like a criminal” and questioned all the time

when she was simply going about her business, buying a coffee at Starbucks or engaging

in some other appropriate activity in the mall. I do not doubt that Ms. Radek was upset

and raised her voice; she admitted that she was upset, angry and “hollering”.

[153] Ms. Hayer radioed to her supervisor, Mr. Clulow, who came to the scene.

According to Mr. Clulow’s Security Occurrence Report, on his arrival he saw the two

women arguing with Ms. Hayer. He stated that he had a brief conversation with them,

after which they started yelling and swearing. In her evidence, Ms. Radek said that she

and Ms. Wolfe recognized Mr. Clulow and tried to reason with him. She had spoken to

him on a previous occasion about Ms. Hayer and now told him that this (Ms. Hayer’s

treatment of them) was what she had been talking about. I find that this was the “brief

conversation” Mr. Clulow referred to in his Report. I do not accept Mr. Clulow’s

52

evidence that he had never met Ms. Radek before and prefer her evidence that she had

previously spoken to him about her concerns with Ms. Hayer’s behaviour, an event which

would likely have been much more significant and memorable to her than to him. I also

do not accept the statement in Mr. Clulow’s Report that Ms. Radek and Ms. Wolfe

simply started yelling and swearing. Rather, I find that they became frustrated as Mr.

Clulow uncritically supported Ms. Hayer’s actions and told the two women that they

were trespassing and causing a disturbance, and that they had to leave. I accept Mr.

Clulow’s evidence that, in the course of this conversation, Ms. Radek told him that Ms.

Hayer was constantly harassing her, which also tends to support my finding that Ms.

Hayer had previously harassed Ms. Radek. In her testimony, Ms. Radek said that she got

“really riled up just thinking about being kicked out of a public place like that”. While

testifying about these events, she became visibly upset and required a brief adjournment

to collect herself. In my view, this was a reflection of how upsetting she found these

events at the time.

[154] Ms. Radek asked Mr. Clulow to show her a copy of the policy that gave him the

right to throw her out. According to Ms. Radek, he refused to do so, but said that he

would show her a copy of the policy outside. Mr. Clulow said that she asked for the

policy and he refused to show it to her but said that it was Mr. Power, when he later

joined the conversation, who told her he would show it to her outside. I accept that Mr.

Clulow refused to show her the policy. It makes no difference whether it was Mr. Power

or Mr. Clulow who told her he would show it to her outside; clearly one or both of them

did so. I find that this was done in an attempt to manipulate Ms. Radek into leaving the

mall. I do not accept the interpretation Ms. Radek put on Mr. Clulow’s words that he

meant it as a threat, in the sense that they should “step outside”, where he would beat her

up. I do not doubt, however, that in the heated atmosphere in which this statement was

made that Ms. Radek honestly interpreted it as a threat. In any event, Mr. Clulow never

showed Ms. Radek the policy when she subsequently went outside. This is consistent

with other evidence from Securiguard employees, including Mr. Clulow, that they would

never show a member of the public the site post orders – they were for the security

guards only.

53

[155] At some point in the discussion with Mr. Clulow, as he was telling her and Ms.

Wolfe that they were trespassing and had to leave, Ms. Radek said that she realized he

was not going to show her the policy and attempted to walk around him in the direction

of Starbucks. In response, Mr. Clulow touched her in some manner. The precise nature

of that touching was in issue. Ms. Radek testified that he reached out and shoved her left

shoulder. Mr. Clulow, in his Report, characterized it differently, saying that he put his

right hand on her right shoulder. They agreed that she said that the touching was an

assault. They also both agreed that she then attempted to walk by him again, and that he

again touched her. Once again, they disagreed with respect to the force used, with Ms.

Radek calling it a shove and Mr. Clulow saying he simply placed his hand on her

shoulder.

[156] In my view, the degree of force used probably lies somewhere between the

witnesses’ two versions. It is understandable that Ms. Radek would have perceived and

characterized the touching in stronger terms than did Mr. Clulow. Ms. Radek testified

about abuse which she had suffered as a child which would, in my opinion, have made

her especially sensitive to any non-consensual touching. For his part, it was in Mr.

Clulow’s self-interest to characterize the touching as having been as insignificant as

possible. In any event, it is clear that Ms. Radek twice tried to pass Mr. Clulow and that

he twice touched her without her consent in an attempt to prevent her from doing so.

[157] Mr. Clulow testified that his actions with Ms. Radek had nothing to do with her

disability or race. With respect to the former, he said that he was not aware of her

disability while dealing her. He said that his concern was that she was yelling. I discuss

the role which Ms. Radek’s race and disability played in the actions of all of the

Securiguard employees involved in this event in the course of my analysis below at paras.

463-487.

[158] It was at about this point that Mr. Power, the site security manager, arrived on the

scene. He had been in an on-site trailer doing some computer work when he heard a

radio transmission. Ms. Radek did not know him. According to his Security Occurrence

Report, he arrived to see Ms. Radek and Ms. Wolfe having a conversation with Ms.

54

Hayer and Mr. Clulow. Ms. Radek testified, and I accept, that Ms. Hayer was in the

background and played little role in events once the other security personnel arrived on

the scene. This was confirmed by Mr. Clulow, who testified that Ms. Hayer did not say

anything after she spoke to him on his arrival on the scene. This is consistent both with

her lower “rank” and the fact that her Report has few details in it of what occurred after

Mr. Clulow arrived on the scene. I also accept Ms. Radek’s and Ms. Wolfe’s evidence

that Ms. Hayer was walking back and forth in the background, making facial expressions

which they both interpreted as rude and mocking.

[159] According to Mr. Power’s Report, he interrupted the conversation by asking what

the problem was. He said that Ms. Radek said Mr. Clulow had assaulted her, and that she

had been going to Starbucks when Ms. Hayer harassed her and her friend. He also wrote

that by this time Ms. Radek was being very loud and was yelling that security was racist

and was trying to keep natives off the property. I accept that Ms. Radek did say words to

that effect. I further accept that Ms. Radek’s voice was raised. She herself testified that

she was angry, and that both her voice and that of Ms. Wolfe would have been louder

than usual. She further testified that, after Mr. Clulow pushed her, both she and Ms.

Wolfe got angrier and that she raised her voice. She believed she had been assaulted and

that “no one has any reason to touch me”; as she said, “I don’t like being shoved around

by anyone”.

[160] The next portion of Mr. Power’s Report bears quoting in full, as I find it is a

reasonably accurate statement of the next events:

S/M Power informed the female [Ms. Radek] that under the private

property act security can deny access to anyone so long as it does not

violate any civil rights. S/M Power informed the female that she would

have to leave as she was now causing a disturbance. The female refused

stating that she was on native land and therefore did not have to leave.

S/M Power informed her the land and building was owned privately and

she would have to leave immediately. She refused to go stating she

wanted to see the policy whereby she could be removed. S/M Power

informed her no negotiations will be made and the policies are listed under

the private property act. S/M Power informed her that by refusing to leave

she was committing assault by trespass. S/M Power suggested she should

leave now or she would be physically removed. She again called us

racists, demanding to see the policies of the mall. S/M Power informed

55

her to leave and then the policies would be brought out to her. After a few

seconds of silence she walked out….

[161] I reject the allegation, to which Mr. Clulow testified and which was put forward in

Mr. Power’s Report, that Ms. Radek was “causing a disturbance”. I have no doubt that,

by this point, a loud and noticeable confrontation was occurring. But any disturbance

was provoked and precipitated by the actions of the security personnel: in the first

instance by Ms. Hayer’s conduct, and in the second by Mr. Clulow’s and later Mr.

Power’s behaviour. Ms. Radek and Ms. Wolfe were simply on their way for a coffee

when these events were initiated by Ms. Hayer’s belligerent and obtrusive questioning.

Thereafter, while Ms. Radek was undoubtedly angry, she attempted to deal with the

incident in a reasonable way, asking to see the supervisor or manager and to see a copy of

the policy which entitled the guards to remove her from the mall, and ultimately calling

the police to the scene to respond to her allegation of assault. These are not the actions of

a person who is “causing a disturbance”; they are the actions of a person who believes

she is being treated unfairly and wants to deal with that problem in an appropriate

manner.

[162] I note that all three Security Occurrence Reports filed with respect to this incident

identify the “category” as “trespassing” and the “sub-category” as “suspicious person”.

When asked about this categorization in cross-examination, Mr. Clulow said that Ms.

Radek was not “suspicious”; she was “causing a disturbance”. I find the fact that all

three security guards categorized the incident with Ms. Radek as “suspicious” significant.

There was nothing in the appearance or behaviour that day of either Ms. Radek or Ms.

Wolfe which could legitimately be described as “suspicious”. This categorization, in the

absence of any facts to support it, lends credence to the theory that Aboriginal, and

especially disabled Aboriginal people, were likely to be viewed as “suspicious” by the

guards at International Village for reasons having to do with their group characteristics,

real or assumed, and having nothing to do with their behaviour.

[163] Towards the end of these events, there was a discussion about calling the police.

Ms. Radek wanted the security personnel to call the police, as she alleged that she had

been assaulted by Mr. Clulow. They would not do so, and ultimately Ms. Radek called

56

“911” on her cell phone. I reject Mr. Power’s evidence that Mr. Clulow had instructed

the CCTV operator to call “911”, as it is inconsistent with the totality of the evidence. In

particular, Mr. Clulow’s own Security Occurrence Report did not state that he asked the

CCTV operator to do so; rather, it states that one of the women called “911” on her cell

phone and told them she wanted to charge Mr. Clulow with assault. Constable Bellia

also testified that it was Ms. Radek who called the police.

[164] After they had left the mall, Ms. Radek and Ms. Wolfe waited for the police on

the bench outside the north entrance. They were both upset by what had happened. Ms.

Radek called Mr. Houston on her cell phone and told him she had been assaulted by a

security guard. After about five minutes, they were joined by Mr. Houston, who waited

with them. Ms. Radek told Mr. Houston more about what had happened. There was no

interaction between Ms. Radek, Ms. Wolfe and Mr. Houston, on the one hand, and the

security officers, on the other, during this period. For part of this period, Ms. Wolfe was

absent as she went across the street for a few minutes. As I have already indicated, no

security officer brought Ms. Radek the policies which she requested and which Mr.

Clulow or Mr. Power had told her he would show to her outside.

[165] After about ten minutes, two plain clothes police officers, Constables Gough and

Bellia, arrived. As this complaint is directed at Henderson and Securiguard, not these

officers or the Vancouver Police Department (the “VPD”), I do not find it necessary to go

into Ms. Radek’s interactions with them in as great a detail as I did the earlier events.

Nonetheless, as substantial evidence was called about this aspect of the May 10 events,

and my findings with respect to it may be significant with respect to the witnesses’

credibility and some of the wider issues raised in this complaint, I have found it helpful to

make the following findings.

[166] Constable Bellia testified that he and Constable Gough entered the mall through

the south entrance, and were greeted at the door by security personnel. Constable Gough

thought they entered through the north entrance, and also testified they were greeted at

the door. I place little weight on their evidence of having been greeted at the door. First,

both officers had only vague memories of anything not included in Constable Bellia’s

57

Report, and it does not refer to any greeting. Second, as I discuss in further detail below,

Constable Gough had attended the mall at security’s request on a number of previous

occasions. I do not know if Constable Bellia had also been there on police business on

previous occasions, but it is certainly possible, in light of the frequency with which VPD

officers attended International Village, according to the Banned Books. It is entirely

possible that one or both officers knew or were recognized by the security personnel

manning the door, and that the security officers greeted them for that reason. Certainly

the police officers would have been on the look out for the security personnel, given the

nature of the call to which they were responding. Equally, the security personnel would

have been watching for the police to arrive, as they knew Ms. Radek had called 911.

Finally, there was a tendency for both officers, both at the time and in their evidence

before me, to accept uncritically the security guards’ perspective, which, given the issues

in this case, could have affected their subsequent recollections on this point.

[167] Ms. Radek testified, and Constable Bellia’s Report confirms, that the police

officers spoke first to the security personnel. Ms. Radek found this troubling, both at the

time and when testifying, as it had been she who called the police and she considered

herself to have been the victim of an assault. Constable Bellia testified that the police do

usually try and speak to the complainant first, but that in this case they did not know

exactly where she was; they spoke to the security personnel first and they pointed her out

to them. After the police had interviewed the security personnel, they spoke to Ms.

Radek and Ms. Wolfe outside the mall. At least some of the security personnel involved

in this dispute were present while the police spoke to Ms. Radek and Ms. Wolfe. Mr.

Dunn may also have come outside and observed what was going on; the evidence was

somewhat inconclusive on this point given that Mr. Dunn did not testify and Ms. Radek

did not know what he looks like.

[168] There was some dispute in the evidence as to precisely who was speaking to

whom at all points in the ensuing discussions. This is not surprising, as emotions were

running quite high, and Ms. Radek, Ms. Wolfe and Mr. Houston did not at that time

know the names of the officers to whom they were speaking. Overall, it appears that

Constable Bellia took the lead role in dealing with this matter, as reflected in the fact that

58

it was he who wrote the Police Occurrence Report. I accept that after speaking to the

security staff, the police officers split up, with Constable Bellia speaking to Ms. Radek

and Constable Gough speaking to Ms. Wolfe, albeit in close proximity to one another.

That arrangement did not continue throughout, however, and on all of the evidence I

think it is likely that Ms. Radek and Constable Gough also spoke to one another. That

said, the majority of Ms. Radek’s interactions with the police were with Constable Bellia.

[169] Overall, it is clear that the police officers accepted what the security personnel

told them, and discounted what Ms. Wolfe and especially Ms. Radek had to say. I quote

from Constable Bellia’s Report at length:

… She [Ms. Radek] was extremely agitated and demanded that [Clulow]

be arrested. PC 1893 [Constable Bellia] asked her what happened but she

kept stating that the staff was harassing her because she is native. She

went on about how there were several complaints against the mall because

of a history of staff being racist to native people (ie: complaints to Jenny

Kwan). [Bellia] told her that we weren’t here to address these complaints

but rather the assault she was alleging. She repeatedly turned her back on

me and remarked how I wouldn’t do anything for her. She told us that if

she was white, this wouldn’t happen to her. [Bellia] told her numerous

times that she was not being judged and the security staff always greet

customers at the door. [Bellia] also tried to explain that the mall is private

property and they could refuse service to anyone. Furthermore, it was

suggested that if she wanted to complain (ie: racism allegations), she

should contact Civil Liberties. [Bellia] did not even get to the point of the

alleged assault when she called me a racist because she is native. I then

asked her: “I’m a racist” (in a question form) and she demanded to have

my PIN#. She said I admitted I was racist and left the scene with her male

friend.

She was completely uncooperative throughout the entire

interview…

[Constable Gough] spoke to the complainant’s friend, [Wolfe] who was

present during the incident. She was much more reasonable but suggested

they did not like to be harassed. She said it was convenient for them to

shop there and they have the right to be there. She admitted the security

guard asked her to leave and they refused.

PC’s later returned to the security office and reviewed the surveillance

tape of the incident. Throughout the incident, it appeared the complainant

was the aggressor and attempted to pass by [Clulow] after she was asked

to leave. [blank] did not appear to be involved in the incident. The

security staff appeared to have acted completely within the law and the

tape supported their statements…

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PC’s believe [Radek’s] allegations of an assault are completely

unfounded. She initiated the entire incident and is using the “racist” angle

as leverage to get what she wants (ie: charges against [Clulow]). She

accused PC’s of being racist because she didn’t get what she wanted. She

will likely complain about today’s incident. (information in the square

brackets was blacked out from Report)

[170] There are likely a number of reasons why the police officers uncritically accepted

the security officers’ version of events. In my view, one significant factor was likely

“fellow feeling” for the security guards as law enforcement personnel. As I already

mentioned briefly, Securiguard’s Banned Books reveal that VPD officers were frequently

called to International Village to deal with incidents. In most cases, the officers involved

are not identified in the Undesirable Person Reports. But in three cases, Constable

Gough is identified by name or badge number. It is likely that Constable Gough, at least,

and possibly also Constable Bellia, was familiar with the guards, especially Mr. Clulow

and Mr. Power, both of whom were in supervisory positions. Even if they were not

personally familiar to them, it is, in my view, likely that the police officers would have

been sympathetic to the guards’ position. Certainly some of Constable Gough’s

testimony, in particular, strongly suggested that to be true. I deal with this issue further

below at para. 528.

[171] Ms. Radek testified that the police officers repeatedly told her she had no case.

She testified that she complained to them about the racism she believed she was

experiencing from the security personnel, and that one of the police officers said in

response that she should look at the area she is in, the “druggies”, the prostitutes. He may

also have referred to poor people and Aboriginals – the evidence was somewhat

inconsistent on this point. Ms. Radek told him that he should stop painting us all with the

same brush. She told him that she was not a prostitute, did not drink or do drugs. One of

the officers told Ms. Radek that if she did not like how she was treated at International

Village, she should take her business elsewhere. Although there was some dispute in the

evidence, I think it likely that it was Constable Gough who engaged in the majority of

this part of the conversation with Ms. Radek. Constable Bellia was sure that he did not

have this part of the conversation, and while Ms. Radek thought that she had spoken only

to him, I think it more likely that she also spoke to Constable Gough, who testified that

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he tried to persuade Ms. Radek that if she did not like the way she was treated at the mall,

she had the right to shop elsewhere, that she should engage in some kind of consumer

boycott. He testified that he “didn’t think she got the point”. Given Ms. Radek’s

allegations of ongoing racial discrimination, the question of who “didn’t get the point” is

open to debate.

[172] Ms. Radek described herself as getting exasperated and not being able to handle

this anymore. She testified that she said that “this is racist to me”. She testified that, in

response, Constable Bellia said “you’re making this racist? I am racist. I am racist,”

while pointing to himself. Mr. Houston testified that Constable Bellia said “if this is a

racist issue, I must be a racist”, which he repeated twice. In response, Ms. Radek

testified that she said that “if you’re racist I guess there’s no more conversation on this

point.” Both she and Mr. Houston testified that, at that point, Mr. Houston jumped up

and asked the police officer for his badge number and stated that this was going to go to

the British Columbia Civil Liberties Association. I prefer Ms. Radek’s and Mr.

Houston’s evidence that it was Mr. Houston who referred to the BCCLA and asked for

the officer’s badge number to that of Constable Bellia on this point. Soon thereafter Ms.

Radek, Ms. Wolfe and Mr. Houston left. Ms. Radek testified that when she got home she

cried and cried and cried.

[173] The question of whether Mr. Clulow assaulted Ms. Radek within the meaning of

the Criminal Code is not before me. Nor is the question of whether Constables Gough

and Bellia discriminated against Ms. Radek. I therefore do not enter into making all of

the factual findings necessary to those determinations. What I do observe is that the

officers were unwilling to consider Ms. Radek’s allegations of racism. While it is not

within their jurisdiction to enforce the Human Rights Code, it seems apparent to me that

Ms. Radek’s racism allegations were relevant to what was within their jurisdiction,

namely Ms. Radek’s allegations of assault. Their refusal to consider Ms. Radek’s

allegations of racism, taken together with their acceptance of the security personnel’s

version of events and the law (I refer here to Constable Bellia telling Ms. Radek that “the

mall is private property and they could refuse service to anyone)”, led them to believe

that Ms. Radek had “no case”. Ms. Radek was already upset by reason of her treatment

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by the security personnel; she was made more so by the police officers’ treatment of her

and her concerns. As a result of all these factors, the conversation ended badly, with

allegations of racism against the police. I think it unlikely that Constable Bellia intended

to make the factual statement that he was a racist; it is more likely that he intended it as a

rhetorical or perhaps sarcastic question designed to establish the contrary. I think it very

likely that Mr. Houston’s recollection, with Constable Bellia saying something like “if

this is a racist issue, then I must be a racist”, is accurate. Equally, however, I accept Ms.

Radek’s evidence that she believed that Constable Bellia was admitting he was a racist.

After all, those were the words he used, and such a statement of fact would have, by this

point in the conversation, only confirmed Ms. Radek’s growing belief about Constable

Bellia’s motivations. Constable Bellia himself fairly observed in his evidence that it is

possible that Ms. Radek thought that he had admitted he was a racist. I concur with Mr.

Houston that the comment, on any of the versions recalled by the witnesses, was, in the

context, very insensitive and liable to be misinterpreted.

[174] The security guards’ and police officers’ perceptions of the race of the two

women appear to have influenced their perceptions of their behaviour. Ms. Radek has

black hair and dark skin and, in my view, is unmistakeably Aboriginal. While I did not

have the opportunity of meeting Ms. Wolfe in person, Ms. Radek testified, and I accept,

that she has fair skin and blue eyes and, at the time of this incident, had dyed her hair

blonde and could “pass” for white. In his Report, Constable Bellia identified Ms. Radek

as “Aboriginal”, while he mistakenly identified Ms. Wolfe as “Caucasian/White”. In his

Security Occurrence Report, Mr. Clulow, appears to identify Ms. Wolfe’s race as

“Aboriginal?”, and refers to her “pale skin”. In his Report, Mr. Power identified Ms.

Radek as Aboriginal and does not comment on Ms. Wolfe’s race. In his Report,

Constable Bellia says that Constable Gough spoke to Ms. Wolfe, whom he stated “was

much more reasonable but suggested that they did not like to be harassed”. In his

evidence, Constable Gough testified that Ms. Wolfe was more reasonable and easier to

talk to. Similarly, Mr. Power, in his Security Occurrence Report, said that Ms. Wolfe

was “quiet and co-operative”. While I accept that Ms. Radek played a more prominent

role in this incident than Ms. Wolfe, the fact that both the security personnel and the

police characterized the woman whom they perceived to be white or only possibly

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Aboriginal as more reasonable than the woman they perceived to be Aboriginal, tends to

suggest that negative racial stereotypes may have played some role in their perceptions of

the women’s conduct.

[175] There was a dispute in the evidence before me as to a racially derogatory

comment or comments which were directed to or made about Ms. Hayer at some point in

the course of these events. In her Report, Ms. Hayer said that the “female wearing

glasses yelled at S/O Hayer that you are Indian and go back to your country.” She also

said that the same woman called her a “bitch” a few times. In his Report, Mr. Clulow

said that “female #1” called Ms. Hayer a “bitch”. In his Report “female #1”, however,

generally refers to Ms. Wolfe, not Ms. Radek (it is “female #2”, for example, whom Mr.

Clulow touches on the shoulder and who claims to have been assaulted and who calls the

police). In his testimony, Mr. Clulow said that he heard Ms. Radek call Ms. Hayer a

“bitch” and tell her to “go back to India”. In her testimony, Ms. Radek denied using any

racially discriminatory language to or in reference to Ms. Hayer. She also denied any

other name calling or obscenities on her part. She did say that after the police officers

arrived she overheard Ms. Wolfe refer to Ms. Hayer as a “Paki”. She testified that the

police officer corrected Ms. Wolfe’s language and that Ms. Wolfe apologized. In her

testimony, Ms. Wolfe denied that Ms. Radek ever used any racist language with respect

to Ms. Hayer and admitted that she had called Ms. Hayer a “Paki” to one of the police

officers. I accept Ms. Radek’s and Ms. Wolfe’s testimony on this point and find that Ms.

Radek at no point called Ms. Hayer a “Paki” or used other racist language to or about her.

The security personnel’s identification of Ms. Radek rather than Ms. Wolfe as the person

who used such language was not particularly strong or convincing. Further, the security

guards’ and police officers’ perception that Ms. Radek was the more unreasonable and

uncooperative person may have influenced their perception of which woman used racist

language. This was evident in the testimony of Constable Gough who, having identified

Ms. Wolfe as “more reasonable”, was sure that she was not the one to have made a racist

comment. On the other hand, both Ms. Radek and Ms. Wolfe were absolutely clear about

which of them used such language. I do not think that Ms. Radek would have used racist

language. I accept her testimony that she is not a racist person who accepts we all have a

reason for being here and does not refer to people in racially derogatory ways. Rather,

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Ms. Wolfe, who is less sophisticated in these matters than is Ms. Radek, did use a racist

term. When she realized it was inappropriate, she apologized.

[176] In cross-examination, Constable Gough gave some significant testimony about

what he characterized as Ms. Radek’s “racist bent”. He referred to her “pulling the race

card”. He testified that it seemed to him that only Caucasian people are accused of

racism, but that it is not true, that others can be racist too. He said that he got accused of

racism “all the time”, and that it disgusted and flabbergasted him. For Constable Gough,

Ms. Radek went on a “racist bent” when she made allegations that she was being treated

the way she was because of her race. He testified that that “flies in the face of logic”. He

characterized it as an ad hominem attack on him. Once made, it “blows out

reasonableness”.

[177] I have taken the evident strength of Constable Gough’s feelings on this issue into

account in assessing his evidence. This evidence has also been useful to me in

understanding how a defensive denial of the very possibility of racism can make it

impossible for a person, or perhaps an institution, to accept the existence of racism,

regardless of the evidence. This is a subject I return to below at paras. 524-533, under the

heading “Playing the Race Card”.

[178] It is evident that the May 10 incident was the “last straw” for Ms. Radek. In its

wake she complained to the on-site building management at Vancouver Native Housing;

made a complaint to the Police Complaints Commissioner; talked to the mall manager,

Matt Dunn; sought legal advice through the Vancouver Aboriginal Law Centre; and made

this human rights complaint.

[179] Her contact with Mr. Dunn is of particular relevance to this complaint. Ms.

Radek testified about this contact. Mr. Dunn was not called as a witness, so her evidence

is uncontradicted. I accept it. A few days after the incident she telephoned the mall and

asked to speak to the manager. She wanted to see if something could be worked out so

that she would not be under such scrutiny. She wanted to stop the problem, both for

herself and others. She was put through to Mr. Dunn. Ms. Radek tried to ask Mr. Dunn

some questions. He told her that he had been at the mall when the incident happened,

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and knew about it. She was upset that he did not come forward to speak to her at that

time when he knew that she was asking to speak to the mall manager. According to Ms.

Radek, she asked him about Constable Bellia’s alleged statement that he was a racist.

Mr. Dunn told her that he thought she was taking it out of context. Ms. Radek felt that

Mr. Dunn was denying the situation. This made her angry. Mr. Clulow testified that Mr.

Dunn subsequently told him that Ms. Radek had telephoned him to ask for an apology.

According to Mr. Clulow, Mr. Dunn said that he refused to give her one because he

believed that the security guard was in the right. There was no evidence of any kind of

internal investigation being undertaken by either Henderson or Securiguard into this

incident.

[180] On May 17, 2001, Ms. Radek wrote a letter of complaint to the Office of the

Police Complaints Commissioner. In it, she recounts her version of the events of May

10, substantially as she testified before me. She also referred to her earlier experiences at

International Village. I quote a portion of that letter, as it well summarizes Ms. Radek’s

views about her experiences and the impact which they had on her:

How do I feel as the victim? I feel that this particular female security

guard had victimized me repeatedly since I moved into this building in

November 2000. On approximately 10 to 15 occasions (I lost track of the

exact number) this same security guard has harassed me.

The last time prior to this incident was about a week ago. She watched me

walk across the street and fell into step with me. Immediately she asked

where I was going. I kept walking and she kept walking beside me. She

said, “You are inconveniencing me.” I told her to call the police and kept

walking. She followed me all the way to Starbucks where I met a friend

and sat down. While I had my coffee, she stayed at the south entrance

until we were done. (The south entrance is right next to Starbucks.)

When I left Starbucks I walked through the mall to go home. She walked

right behind me all the way through, continually badgering me telling me

not to keep cutting through the mall.

I feel she is harassing me unnecessarily and is basing her judgement on a

biased opinion of the neighbourhood. I understand that this area has many

drug addicts, prostitutes and street people. I know that there are also many

aboriginal people in this area. What I don’t understand is why it is

automatically assumed that the aboriginal people are drug addicts and

prostitutes.

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I am an aboriginal handicapped woman who rarely drinks, doesn’t do

drugs and has never prostituted myself in my life. Yet I am being painted

with the same brush and considered to be just another ‘undesirable’ in the

Downtown Eastside.

I was treated wrong in this situation by both the police officer and the

Tinseltown staff. I want this racism to stop. I believe this is racism

because I can see no other reason for the way I was treated. Their

behaviour and attitude toward me was totally unwarranted and

unjustified…

I feel that the racism in my life has gone too far and for too long. Perhaps

this is the time to step forward and be heard. No more do I want to be

judged by the colour of my skin. No more do I want to be treated like a

criminal. I want the same justice as the next person who is assaulted. I

simply want justice done.

… I would like to see every culture treated the same to let them know that

everybody has the freedom to walk anywhere with their heads held high.

We don’t need the ignorance of Tinseltown security guards and the police

stopping visible minorities from shopping wherever we want.

[181] Subsequently, Ms. Radek retained counsel, through the Vancouver Aboriginal

Law Centre, who pursued her police complaint. Ultimately, her complaint about the

police officers’ conduct was referred to the VPD for an internal investigation. Ms. Radek

was not interviewed as part of that investigation. The VPD officer who conducted that

internal investigation, Sergeant Wager, rejected Ms. Radek’s complaint against the

officers. That conclusion was communicated in a letter from Inspector Rob Rothwell to

Ms. Radek’s then counsel, dated October 30, 2001. In his letter, Inspector Rothwell

stated the following:

The constables were satisfied the guards acted professionally, that racism

was not an element and that a criminal assault did not take place.

[182] This is a curious conclusion in light of the consistent evidence before me that the

police officers told Ms. Radek that they were not there to address her complaints of

racism, but rather to deal solely with her allegations of assault. This is also stated in

Constable Bellia’s Police Report. Given that evidence, which I accept is an accurate

recounting of what the police told Ms. Radek, it is difficult to understand how the

officers, let alone the VPD internal investigator, could have come to the conclusion that

“the guards acted professionally, [and] that racism was not an element.” The inclusion of

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this statement in the report of the internal investigator is, in the circumstances, disturbing,

and is suggestive of a defensive posture in relation to allegations of racism, even when

directed against security guards, rather than the police themselves. It is, in any event,

neither a binding nor a persuasive finding before me with respect to the role which race

may have played in the guards’ actions.

[183] Ms. Radek’s tenacity in attempting to seek redress for the events of May 10, as

well as the previous incidents (discussed below at paras. 188-204) reflects the

significance of these events in her life. I discuss the impact of these events on Ms. Radek

at greater length below at paras. 640-646.

VI. Facts Relating to Allegations of Systemic of

Discrimination

[184] A number of witnesses gave evidence with respect to their experiences at

International Village. Having weighed and evaluated all the evidence before me, I find

the following.

A. Gladys Radek

[185] Ms. Radek frequently shopped at International Village. She was excited by its

opening, as it offered shops and services not otherwise available in the neighbourhood.

She found its stores very convenient, especially after she moved across the street to

Vancouver Native Housing. In particular, she went to 7-Eleven for groceries and the

bank machine; Starbucks for coffee (she described herself as a “coffee connoisseur” – her

coffees were important to her); the food fair, where her niece worked; a gift shop; and an

arcade. She enjoyed the attractive surroundings.

[186] Ms. Radek testified that when she went to International Village with Mr. Houston

or their friend, Paul Vembin, both of whom are white, she never had any problems. On

those occasions, she would see the security guards posted at the doors, and they would

smile and nod, but not ask her or her companions any questions such as where they were

going or what they were doing. Nor did they follow them into or through the mall.

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[187] After she moved into Vancouver Native Housing, Ms. Radek went to

International Village even more frequently. She said that she was there two to four times

a week, sometimes up to two to three times a day. In addition to shopping there for a

number of items including her basic necessities, she would sometimes use the mall to cut

through from Keefer Street to Pender Street.

[188] After moving into Vancouver Native Housing, Ms. Radek testified that, on a

number of occasions, when she walked into the mall, she was approached by security

guards who would demand to know where she was going or what she was doing. Most of

the time, Ms. Radek would respond, explaining the nature of her business in the mall.

Other times she would try to ignore them and continue on her way. She said that at times

she noticed she was being followed by security guards, who appeared to be speaking to

one another on their walkie-talkies, like they were “zeroing in on their suspect, like I was

guilty of doing something wrong, [when] I’ve never stolen one cent in my life.”

[189] Ms. Radek described a number of particular incidents other than that of May 10,

2001. In particular, she referred to an occasion on which she was going to meet her

friend Paul for a coffee at Starbucks. It was a nice day, and she was wearing a t-shirt

which exposed the scars on her arms. She was alone when she entered the mall through

the north entrance. When she was barely in the door, a female East Indian security guard

“zoomed across” and demanded to know where she was going. Although, at the time,

Ms. Radek did not know this security guard by name, it was the same person who was

involved in the May 10 incident, Ms. Hayer. Ms. Radek told her she was going to

Starbucks. The security guard told her she had to go around the building. Ms. Radek

told her again she was meeting her friend at Starbucks and kept walking. The security

guard followed her closely behind and radioed another guard, keeping a close eye on her

as she proceeded through the building. Ms. Radek met her friend and had a coffee with

him outside Starbucks. A security guard watched them through the south doors. Because

they knew they were being watched, they did not go back into the mall after they finished

their coffee. Ms. Radek testified that she felt humiliated, like a criminal, when she had

done nothing wrong. Ms. Hayer did not testify, so Ms. Radek’s evidence with respect to

this event is uncontradicted. I accept it.

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[190] According to Ms. Radek, Ms. Hayer became increasingly aggressive with her,

and, she believed, with other residents at Vancouver Native Housing. The behaviour of

the security guards generally at International Village was becoming a significant matter

of concern among the residents. It was, she said, “tough, being treated like you’re a

criminal when you haven’t done anything wrong”. Ms. Radek became increasingly

insecure about entering the mall on her own, although sometimes she had to do so: she

used the mall to purchase her basic necessities, she needed to shop frequently given her

limited income, her mobility problems made it difficult for her to travel further away

from her home, and there were very few other options in her neighbourhood. She tried

using different entrances, such as those through Starbucks or 7-Eleven, in an attempt to

avoid the guards’ scrutiny and questioning.

[191] On a number of occasions, Ms. Radek went to have lunch with her niece who

worked in the food court. On at least one such occasion, Ms. Radek observed Ms. Hayer

use her radio while Ms. Radek went up the escalator. Other security guards stood on a

landing and watched her while she ate lunch, and then followed her when she left.

[192] On a number of occasions, Ms. Radek was asked questions and followed closely

by security guards as she went through the mall or was asked by them to walk around the

building. On a few occasions, the guards came out of the building to tell her that she

could not come in and had to walk around the building. Ms. Radek recalled guards

coming out of the building in this way two or three times in or about the early part of

2001, prior to a brief trip which she made to Terrace that spring, before the May 10

incident. The first incident occurred shortly after she moved into Vancouver Native

Housing. On this occasion Ms. Radek was dressed in full Aboriginal ceremonial regalia.

A white male security guard asked her if she was intending to walk through the mall. She

told him she was. He told her she could not go through the mall to the Skytrain station.

Ms. Radek was not going to the Skytrain, and kept on walking to her intended

destination, the bank machine in the 7-Eleven. The second incident of this kind occurred

on a day in early 2001, shortly before she left for Terrace, when she had arranged to meet

her niece for lunch. She walked across the street from her apartment. Mr. Clulow

stopped her and asked her if she intended to go through the mall. She told him that yes,

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she was going to meet someone. He asked her if she would mind walking around. She

said “no”, and kept walking. The third incident happened about a week before May 10.

Once again, she left her building and walked across the street. Ms. Hayer came out of the

building and asked her where she was going. Ms. Radek kept walking and told her that

she was going to Stacatto’s, the restaurant in the food fair at which her niece worked.

Ms. Hayer continued to question Ms. Radek, who responded, with some anger, telling her

that she did not have to tell her where she was going, that “you see my face all the time”,

and that she was not doing anything wrong. Ms. Hayer told Ms. Radek that she was

“inconveniencing” her. Ms. Radek told her to call the police then, and walked on. Ms.

Hayer did not take any further action on that occasion, although other guards stood on the

landing and watched her eat with her niece. Once again, Ms. Hayer did not testify, so

Ms. Radek’s testimony was uncontradicted. I accept it.

[193] It was unclear from Ms. Radek’s evidence precisely how many times she was

questioned, followed, or told she had to walk around the building by security guards, but

I find that behaviour of this kind happened to her on a frequent basis. There was some

inconsistency in Ms. Radek’s evidence in cross-examination as to whether Ms. Hayer

was the only guard who harassed her or whether others did so as well. Taking Ms.

Radek’s evidence as a whole, I find that Ms. Hayer was involved most frequently, but

that other guards, including Mr. Clulow and an another unnamed white male guard, were

involved at other times. This behaviour would occur if Ms. Radek was on her own, with

her friend Ms. Wolfe, or with other Aboriginal people. It would not occur when she was

with her white boyfriend. She strongly disagreed with the suggestion that the guards

“greeted” her; as she said, “I know the difference between a greeting and a demand.” She

characterized the guards as very rude, demanding and controlling. She found their

manner insulting. I accept that all of the incidents which Ms. Radek testified happened to

her at International Village occurred substantially as she related them.

[194] Ms. Radek testified that she heard stories from other residents at Vancouver

Native Housing and from the facility’s building managers of other Aboriginal people

having confrontations with security guards at International Village. The issue was

70

becoming a growing concern amongst them. They felt they were being targeted because

they were Aboriginal. She was starting to see a regular pattern.

[195] Ms. Radek testified that she brought her concerns to the Honourable Jenny Kwan,

the M.L.A. for the area, Norman Mack and Henry Chevillard, her building managers, and

to Peter Clulow, one of the security guards at International Village.

[196] Ms. Radek spoke to Mr. Clulow on a couple of occasions about her concerns. On

one occasion, Ms. Radek had had an incident with Ms. Hayer the previous night. On

entering the mall the next day, she saw Mr. Clulow and approached him. She had spoken

to Mr. Clulow previously, and found his behaviour variable: sometimes he was friendly,

sometimes he was not. On this occasion, she asked him why “we”, meaning Aboriginal

people, had to be “hassled like that”, having demands made as to where they were going

and what they were doing. She told him she was a regular customer, and that she had

spoken to him before, asking him whether he remembered her face. He said that he did,

that he saw her here all the time. Mr. Clulow’s advice to Ms. Radek was to try and avoid

Ms. Hayer.

[197] On another occasion, Ms. Radek and Ms. Wolfe walked into the mall to go to

Starbucks. Ms. Radek noticed Ms. Hayer using her radio. Ms. Hayer followed them

through the mall. Mr. Clulow walked towards them. Ms. Wolfe spoke to him, asking

him why we they were being treated like this, “like criminals”. Mr. Clulow assured her

that she was not doing anything wrong at the time, and the two women proceeded to

Starbucks. While Mr. Clulow testified that he had not had any interactions with Ms.

Radek prior to the May 10 incident, I prefer Ms. Radek’s evidence to his on this point,

and find that these events occurred as described by Ms. Radek.

[198] Ms. Radek also testified about her observations and what she was told of

particular individuals’ treatment at International Village. It is clear that Ms. Radek was

becoming increasingly concerned about her own experiences at International Village, as

well as those she saw and heard about. She began writing down her own observations, as

well as those which other people asked her to write down. In her evidence, she

specifically referred to Larry Wong, Monica Wolfe and Robert Samson. I consider Ms.

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Radek’s evidence about each of these people below at paras. 217-220, 205-216 and 251-

258, in context with the other evidence about them.

[199] In addition, I note the following testimony she gave about other observations and

conversations she had. Ms. Radek testified about her observations of two young, well-

dressed native girls whom she saw being followed and watched closely through the mall

by a security guard on April 25, 2001. They were not carrying bags. Ms. Radek testified

that the mall was busy that day, with lots of other people walking in and out. The other

people were a mix of races, including whites and Asians. She said that she could not help

but notice that the security guard focussed on these two girls out of all the people in the

mall. She wrote a note about this incident which was entered into evidence. Given that

this was Ms. Radek’s first-hand observation, I place some weight upon it as evidence of

security guards more closely monitoring Aboriginal people than other people in the mall.

[200] Ms. Radek also testified about Darrel Stevenson, whom she described as a

mentally handicapped tenant at Vancouver Native Housing. She said that he was always

well-dressed and immaculate. Ms. Radek testified that he asked her to write a note down

of what happened to him sometime in February 2001. According to the note, which it

would appear Ms. Radek wrote sometime after April 25, 2001 (it appears on the same

sheet of paper below Ms. Radek’s note of the April 25 incident to which I just referred),

Mr. Stevenson and his nephew went into the mall and went upstairs to buy some pants.

A security guard accused the nephew of stealing, radioed two other guards, and escorted

them out. Although the note Ms. Radek wrote was entered into evidence, I place no

weight on this evidence, given its hearsay nature, the apparent lapse in time between the

event and when Ms. Radek wrote it down for Mr. Stevenson, the fact that no reason was

given for not calling Mr. Stevenson as a witness, and the lack of information about the

events preceding the accusation of theft.

[201] Ms. Radek also testified about conversations which she had with two female

tenants at Vancouver Native Housing about their experiences at International Village:

“June” and Margaret Cliff. She said that “June” told her she had been kicked out of the

mall and had complained to Mr. Chevillard and Mr. Mack. From Mr. Chevillard’s and

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Mr. Mack’s evidence, and Ms. Radek’s description of her, I think that “June” is likely

Judith Muir. I deal with the evidence about her below at para. 246. Ms. Radek testified

that Ms. Cliff was a native elder, 55 or 60 years of age, a retired teacher, disabled due to a

bone disease. Ms. Radek said that Ms. Cliff told her she had been constantly followed,

verbally abused, called a “drunk” and told “to get the hell out” of the mall. Ms. Radek

said she talked to Ms. Cliff on a number of occasions about her concerns, and that she

believed her. Despite the hearsay nature of this evidence, I am prepared to place some

weight upon it, due to its comparatively detailed nature and consistency with other

evidence I heard about the treatment of disabled and Aboriginal people at International

Village.

[202] Ms. Radek also testified about seeing a fellow Vancouver Native Housing tenant

in the elevator at the facility. Ms. Radek testified that this happened about a month after

she moved in, which would place it in or about November 2000. His face was all bloody,

his hair messy, his arms scratched. She did not know his name. He told her that security

guards at Tinseltown “took a round out of him”. Ms. Radek agreed in cross-examination

that she did not know if he was the victim or the aggressor. While I accept Ms. Radek’s

evidence of what she saw and heard as truthful, I place no weight upon it given its

hearsay nature, the lack of detail with respect to the events at the mall, and the fact that

the person who said he had been beaten by the guards is not even named. There is no

way of testing the reliability of what Ms. Radek reports he said to her.

[203] Ms. Radek also testified that she frequently observed from her balcony, where she

would do beading either by herself or with Ms. Wolfe, people being thrown out of the

mall. She could hear screaming and shouting matches between security guards and

others, and on several occasions saw people being physically pushed out of the mall. She

said that the people she saw being removed from the mall were mostly Aboriginal. She

said she saw seven or eight Aboriginals being removed from the mall every week. On

“welfare day” there could be as many as two or three Aboriginal people being removed

from the mall. She said she was appalled and hurt to see so many of her people being

hurt. Given that Ms. Radek did not and could not know why all of these people were

being thrown out, this evidence is not highly probative. It does, however, provide some

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evidence in support of the proposition that Aboriginal people were treated harshly by

security personnel.

[204] In cross-examination, Ms. Radek was asked a number of questions, her answers to

which revealed the kind of behaviour she would have considered appropriate on the part

of the security personnel at International Village. It was clear that she had no objection

to a true “greeting”, a friendly welcome or offer of assistance. However, she was

adamant that that was not what she had received from the guards at the mall. She agreed

that it would be appropriate to prevent people from using drugs in the mall or from being

drunk in the mall. She was not prepared to offer an opinion on whether people should be

prevented from shooting up in the bathrooms, as she said that it was not her place to

judge people. Similarly, she declined to state that she would be disturbed by someone

else’s bad body odour, as she did not want to judge others.

B. Monica Wolfe

[205] Monica Wolfe is an Aboriginal woman who was born in Hobema, Alberta. She

describes herself as “middle-aged”. Ms. Radek testified that Ms. Wolfe had her hair

coloured blonde and has blue eyes and could “pass” for white. Ms. Wolfe lives in

Vancouver Native Housing, and has done so since it opened in October 2000. She was

very excited to move into the facility, as she had been living in hotels before that.

Initially, she lived in a suite on the sixth floor, facing International Village, from which

she could observe the north entrance to the mall.

[206] I have already taken Ms. Wolfe’s evidence into account in determining what

occurred on May 10, 2001, and do not repeat that evidence here.

[207] Ms. Wolfe testified by telephone. I have no doubt she told the truth to the best of

her ability. However, Ms. Wolfe suffers from a severe illness which made it difficult for

her to come to the hearing in person. She has, as a result of her illness, been hospitalized

for lengthy periods of time on and off over the past few years. In her testimony, she said

that she was feeling a little “sluggish”. Later, she said that her “mind was going all over

the place.” In assessing her testimony, I have taken into account the effects which her

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illness, and the medications she takes for it, had on her ability to recall and relate her

experiences and observations.

[208] As a result, I have placed comparatively greater weight on Ms. Wolfe’s evidence

where it is confirmed by that of other witnesses.

[209] To some extent, I have placed greater weight on contemporaneous records of Ms.

Wolfe’s evidence. However, given both her and Ms. Radek’s evidence about Ms.

Wolfe’s learning disabilities and difficulties with writing, I have also exercised caution

where Ms. Wolfe was herself the author of the document. In particular, I have treated

with some caution a note apparently written by Ms. Wolfe about the May 10 incident.

The date on which it was written was not clear. Ms. Radek was able to identify Ms.

Wolfe’s signature, and thought it was likely Ms. Wolfe’s handwriting. Ms. Wolfe

testified that she wrote it with Ms. Radek on May 10, but Ms. Radek’s evidence did not

confirm her involvement.

[210] I did place weight on a note that Ms. Radek made at Ms. Wolfe’s request. It is

dated April 20, 2001, but Ms. Radek testified that she misdated it and she actually wrote

it on April 21, 2001, the day after the events recounted in it occurred. Ms. Radek wrote

this note for Ms. Wolfe because Ms. Wolfe has a learning disability and has a hard time

writing. That note reads as follows:

My friend Monica Wolfe resides at 27 West Pender. On April 20 she went

to Tinsel Town to grab a bite to eat. A Security Guard physically came out

of the north mall doors adjacent to our apartment building. He came out

about 20 paces and stopped her. He asked her if she could walk around the

building. She said no because she was going to get something to eat. He

then followed her through the mall to ensure she was going to the food fair

on the second floor.

[211] Ms. Radek testified that, on April 21, Ms. Wolfe came down to her suite in tears

and told her what happened to her and asked her to write it down for her, which she did.

[212] Ms. Wolfe also testified about this event. She agreed that Ms. Radek’s note was

an accurate recounting of what occurred that day. In her evidence, she added that she

asked the guard why he wanted her to go around the building, and told him that she had

health problems which made it difficult for her to do so. She also testified that he told

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her that they were catching people doing drugs in the bathroom and were finding used

needles in the bathroom. She testified that she told him that she did not drink or do

drugs, and that he said everybody who lives “down here” does. She testified that this

made her angry and not feel very good.

[213] I am satisfied this event occurred substantially as recorded by Ms. Radek. Given

the passage of time and the difficulties which Ms. Wolfe experienced with her memory, I

cannot find, on a balance of probabilities, that the conversation with the guard occurred

precisely as she recounted it in her oral evidence. In view of the substantial evidence I

heard with respect to problems which the security guards were having with people using

drugs and leaving used needles in the bathrooms, I am satisfied, however, that the guard

probably did talk to her about that issue in explaining why he wanted her to go around the

mall. The evidence did not reveal any other reason why Ms. Wolfe would even have

been aware of this problem. I think it is also likely that Ms. Wolfe would have told the

guard about her health problems in explaining why it would be difficult for her to go

around the building. The guard would therefore have been aware of Ms. Wolfe’s

disability. So far as her appearance is concerned, given that I did not have the

opportunity to see Ms. Wolfe in person, I accept Ms. Radek’s evidence that she could

“pass” for white. However, I also find that the security guard would have been able to

observe her coming out of the Vancouver Native Housing facility across Pender Street as

he came outside to ask her to walk around the building, and therefore likely identified her

as Aboriginal. Taken together, the evidence about this incident indicates that the guard

attempted to stop Ms. Wolfe from entering the mall, and did so because of assumptions

that, as a disabled Aboriginal person, she was likely to have no proper purpose for being

in the mall and might be a drug user likely to use drugs and leave dirty needles in the

mall.

[214] Ms. Wolfe also testified that she had had other incidents with Ms. Hayer prior to

the May 10 episode. She described two occasions on which she was going to the 7-

Eleven to buy a few things. On each occasion, Ms. Hayer followed her. The first time,

Ms. Wolfe testified that she did not say too much because she did not want to cause

trouble. On the second, she turned around and politely asked Ms. Hayer why she

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followed her every time she came into the mall. Ms. Wolfe testified that she told Ms.

Hayer it was not right for her to be doing that. I accept Ms. Wolfe’s evidence with

respect to her interactions with Ms. Hayer, particularly given that Ms. Hayer did not

testify to the contrary. Further, Ms. Hayer’s Security Occurrence Report of the May 10

incident refers to the fact that she had seen Ms. Wolfe on May 7 in the 7-Eleven, and Mr.

Clulow testified that Ms. Hayer told him she had spoken to Ms. Wolfe on a previous

occasion, which confirms an earlier interaction between them.

[215] Ms. Wolfe was able to observe the north doors to the mall from her sixth floor

suite across Pender Street. From her suite, and from Ms. Radek’s balcony, she observed

people, in particular Aboriginal people, being thrown out of the mall by security guards.

Ms. Radek testified that Ms. Wolfe and she talked quite often about the activities of the

guards at International Village. She confirmed that Ms. Wolfe told her about seeing

Aboriginal people being mistreated and how much it bothered her. As with Ms. Radek’s

testimony about seeing Aboriginal people being thrown out of the mall, Ms. Wolfe’s

testimony suggests that Aboriginal people were treated harshly by guards at International

Village, but does not speak to the incidents which may have precipitated that treatment.

[216] In cross-examination, Ms. Wolfe testified that things have changed at

International Village. The security guards are different, and the new ones do not push

and shove like they used to. I accept this testimony, although I use it with some caution

given Ms. Wolfe’s difficulty with dates and timelines and the fact she has spent

substantial periods of time in hospital in the past few years.

C. Larry Wong

[217] A letter from Larry Wong to Jenny Kwan, dated April 24, 2001, was introduced

in to evidence. In it, Mr. Wong describes himself as a Gitskan hereditary chief. In his

letter, Mr. Wong described an incident which occurred on October 31, 2000, in which he

says that a security guard told him to stop playing his flute in the mall and banned him for

life. He also said that the security guards followed him around the mall as if he was

“Canada’s Most Wanted”.

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[218] Mr. Wong was not called as a witness. Ms. Radek testified that he told her about

the flute-playing incident and gave her the letter. She said that she did not know where

Mr. Wong now is, but that he travels a lot and that he may be in Prince Rupert. From

this, and Mr. Wong’s description of himself in his letter as “an unfortunate”, I take it that

he is a transient person, who may be difficult to locate.

[219] I have reviewed the “Banned Books” maintained by the security personnel at

International Village. There is no record of Mr. Wong being banned in October 2000.

The evidence before me established, however, that not all persons who were informed by

security personnel that they were being banned from the mall are included in the Banned

Books, so it is possible that Mr. Wong was verbally banned from the mall at that time.

Mr. Wong is recorded as being banned from the mall on May 17, 2001 for creating a

disturbance by the north doors. In that record, he is noted to be a very angry person who

has been known to carry a knife. The record also says that he plays the bag pipes. The

record is not signed and no one was called to testify about this incident.

[220] In the circumstances, I am not prepared to place any weight on Mr. Wong’s letter.

While he may well have been told he was banned from the mall on October 31, 2000, I

do not know the circumstances which gave rise to that event, and cannot, on the evidence

before me, find that he was discriminated against at that time. Equally, I place no weight

on the record contained in the Banned Book with respect to the May 17, 2001 incident,

other than to determine that Mr. Wong was banned from the mall on that date. I cannot

find that he was discriminated against at that time.

D. David Heibert

[221] Mr. Heibert is a gay Aboriginal man who at the time of these events was living at

Vancouver Native Housing. He was living with HIV/AIDS. I have already said that I am

prepared to put some weight on Mr. Heibert’s letter concerning his experiences at

International Village. Mr. Heibert was unavailable to testify. Several witnesses were

asked if they knew where Mr. Heibert is; none did. Given his medical condition, it is

possible that he has since passed away. In his letter, Mr. Heibert described an incident in

which he was escorted out of the building by a guard because of AIDS-related cancerous

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lesions on his face. He said that this incident occurred when he first moved to the area,

shortly after International Village opened. In a second incident, which happened

approximately a month later, Mr. Heibert was attempting to cut through the mall from

Vancouver Native Housing to the Skytrain station, when he was told by a guard that “his

kind was not welcome at International Village” and escorted to the exit. I accept that the

first incident happened as described in the letter, as it is consistent with the site post order

which directed guards to eject people with open sores or wounds, and Mr. Heibert writes

that the guard told him that people with open wounds could not be on the premises. I

also accept that the second incident occurred as described, as it is consistent with the

evidence of security personnel and the Security Occurrence Reports, all of which amply

demonstrate that people who were perceived as undesirable or suspicious were routinely

told they could not cut through the mall. I accept that Mr. Heibert suffered emotional

distress as a result of these incidents.

E. Henry Chevillard

[222] Henry Chevillard is an Aboriginal person from Manitoba. He is Cree. In my

view, he is identifiably Aboriginal, with very dark skin and long black hair. He has

trained as a social worker and in business administration.

[223] Mr. Chevillard was the day shift building manager at Vancouver Native Housing

from October 2000 to sometime in 2001. Since that time he has been employed at

Triage, doing outreach work, primarily with Aboriginal people with mental health issues,

physical disabilities, HIV/AIDS, multiple diagnoses, and chronic homelessness.

[224] I found Mr. Chevillard to be a careful, highly reliable witness. He did not

overstate or embellish his evidence.

[225] Mr. Chevillard provided helpful evidence with respect to Vancouver Native

Housing. He said that it was developed to house Aboriginal lower income urban singles

living in the Downtown Eastside. Its target population was the “hard-to-house”, who

needed rent subsidies. The building has 98 units. Of these, 30 units are administered in

partnership with Triage, which supplies a community support worker to assist those

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tenants with day-to-day living. The other 68 units are for Aboriginal tenants requiring

rent subsidies.

[226] In talking about his experiences with racism, Mr. Chevillard described himself as

somewhat jaded and thick-skinned. He said that he tried not to let such experiences

affect him, but rather to do something to change the other person’s opinions, such as

making a complaint or engaging in education.

[227] Mr. Chevillard testified about his own experiences going to International Village.

He would go into the mall two or three times a day for lunch and coffee. He would be

dressed in work attire, cleanly but casually. He said that he was not treated very well.

He said that for the first month he went there, in October 2000, he was “picked up” by

guards and followed throughout the mall continually, asked why he was there, and

whether he was shopping. He said the questions were not friendly at all; they were

interrogations. On one occasion, he testified that a security guard followed him into and

out of the bathroom. Mr. Chevillard said that after a month or so had passed, the guards

got to know him and stopped following him. They would simply nod. After six or seven

months, the guards would smile and say hello. In cross-examination, Mr. Chevillard said

that he dealt with one female East Indian guard, two male East Indian guards, and one

male Asian guard. He did not recall dealing with any white guards.

[228] Mr. Chevillard said that he had never had similar negative experiences shopping

anywhere else. As he said, other stores had always been happy to take his money and

serve him.

[229] In his capacity as building manager at Vancouver Native Housing, Mr. Chevillard

was told by tenants about their experiences at International Village. He said that a

conservative estimate would be that, of the 98 tenants, 60 or 70 complained about the

mall. Their complaints ranged from being followed, to being ejected, to not being

allowed in, to the Pender Street doors (located right across from Vancouver Native

Housing) being locked. I have already noted that the Tribunal determined in a

preliminary decision that the Pender Street door closure issue was not part of this

complaint. I am bound by that decision, and do not consider that issue in this decision.

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[230] Mr. Chevillard noted some, but not all, of the complaints he received in the

logbook kept at Vancouver Native Housing, extracts from which were entered into

evidence. That not all complaints about International Village were recorded is explained

by the fact that the logbooks were supposed to be about events at Vancouver Native

Housing. He testified that on a number of occasions he called the mall to complain about

the security guards’ practices, but that when he did so, the guards’ behaviour would

always be justified on the basis that the person had been intoxicated or was creating a

disturbance. He was never shown or offered a copy of the site post orders. On one

occasion, Mr. Chevillard noted the following in the logbook:

*Phoned Tinseltown security about the harassing tenants and guests of

tenants. I got some complaints earlier today. They hung-up.

[231] Mr. Chevillard reviewed Securiguard’s site post orders during the hearing. He

had earlier seen the document when Ms. Radek had given him a copy when she had

asked him for help in getting a lawyer to deal with these issues. Mr. Chevillard testified

that the site post order, sadly, describes a lot of Vancouver Native Housing’s tenants.

Their only crime, he said, is being poor. He said that its typical tenants included

amputees, people with open sores from HIV/AIDS, and people in wheelchairs. From Mr.

Chevillard’s evidence, it was clear that the residents at Vancouver Native Housing would

be particularly prone to being the subject of negative stereotyping about Aboriginal

people.

[232] Mr. Chevillard recalled four specific stories that tenants shared with him that

stood out for him. The tenants involved were: Robert Samson, Teresa McDougall, Ms.

Radek and Mr. Heibert. I have already dealt extensively with Ms. Radek’s evidence, and

need not do so again here. I have also dealt with the evidence about Mr. Heibert as set

out in his letter and confirmed by Mr. Chevillard. I deal with Mr. Samson and Ms.

McDougall below at paras. 251-258 and 259-262.

F. Norman Mack

[233] Norman Mack is an Aboriginal man of the Nuu-chah-nulth First Nation. He

appears, in my opinion, identifiably native. He speaks English with an accent. He is a

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single parent of three teenage children. He has worked as a building manager and as a

native counsellor, primarily with sex offenders and victims in the criminal justice system.

He has studied at Camosun and Langara Colleges.

[234] Like Mr. Chevillard, Mr. Mack was also a building manager at Vancouver Native

Housing for approximately one year in 2000-2001. Mr. Mack worked the night shift,

from 4:00 p.m. to midnight.

[235] I found Mr. Mack to be a reliable witness, who was careful and highly detailed in

his evidence.

[236] Mr. Mack testified about his own shopping experiences at International Village,

which he compared very unfavourably with those elsewhere, both in the Downtown

Eastside and in other parts of Greater Vancouver. He testified that when Vancouver

Native Housing first opened he went to the mall to get a coffee on his way to work at

3:30 or 4:00 p.m. He came in from the Skytrain entrance near Starbucks, intending to

walk through the mall to the 7-Eleven to buy his coffee. He was wearing blue jeans, a t-

shirt and runners. Two male security guards approached him. Mr. Mack thought that

both guards were East Indian. One was very large; Mr. Mack is 6’ 1”, and that guard

“towered” over Mr. Mack. One of the guards put his right arm up and told him to leave

immediately because it was private property. Mr. Mack asked the guard what he had

said, and the guard repeated that it is private property and that he was not allowed in. Mr.

Mack told them it was a public place and they did not have the right to keep him out.

They both walked away from him at that point, but followed him through the mall as he

went to the 7-Eleven. Mr. Mack had never had such an experience in his life. His

thought was that the guards needed to take humanitarian and race sensitivity courses.

[237] Mr. Mack also testified about an incident on the Friday when he received his first

pay cheque from Vancouver Native Housing. He was going to meet his three teenage

children at the food court in the mall. He got to the food court first, and waited for his

children to arrive. He observed his children as they entered the mall. His children were

dressed in typical teenage style with baggy jeans. One may have been carrying a

skateboard, another her roller blades. None of them was misbehaving in any way. He

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watched two security guards come out of the hallway where the security office is and

follow them at a distance of 15 or 20 feet up the escalator to the second floor food court

area. It was the same two guards who had told him he was not allowed in the mall on his

first day of work. Mr. Mack told the guards, in what must have been a sarcastic tone,

“thanks for escorting my children through the mall”. The larger of the two guards said

they were just doing their rounds. Mr. Mack’s daughter, who was 12 years old at the

time, shook her head in disgust and said that the guards were treating them like they were

going to steal everything in the place. Mr. Mack was determined not to let this incident

spoil his family’s dinner and said nothing more. He watched the guards return to their

regular spot.

[238] Thereafter, Mr. Mack would go to the mall every other day or so to buy coffee

and snacks at 7-Eleven. In order to avoid the security guards, he would enter 7-Eleven

through its street entrance. He would not go inside the mall itself unless he had to – for

example, if on a payday his children wanted to eat in the food court. When Mr. Mack did

go into the mall, the security guards would follow him through the mall and wait outside

of any store he went into. On such occasions he would be casually but cleanly dressed in

a t-shirt, jeans and runners. The guards’ conduct made him feel like a criminal.

[239] Since leaving his job at Vancouver Native Housing, Mr. Mack has not returned to

International Village because he does not like the security there. He prefers to go to the

Metrotown mall with his children.

[240] At the hearing, Mr. Mack was asked to review Securiguard’s site post orders. He

was emphatic that neither he nor his children came within any of the criteria set out in the

site post orders. I accept the truthfulness of all of Mr. Mack’s evidence about his and his

children’s experiences at International Village.

[241] In his capacity as building manager for Vancouver Native Housing, Mr. Mack

heard a lot of complaints from tenants about their treatment at International Village. He

said that some tenants told him that when they tried to enter the mall they would be

escorted out and were not allowed access.

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[242] He recalled a specific incident with “Sandy”, David Heibert’s partner. Like Mr.

Heibert, Sandy had HIV/AIDS. As a result, Sandy had open sores on his legs. Sandy

and David told Mr. Mack that Sandy was harassed two times at the mall. On one

occasion Sandy was walking through the mall to buy a cold drink at 7-Eleven. A security

guard approached Sandy and told him he was not allowed in because of the sores on his

legs. Despite the hearsay nature of this evidence, I am prepared to give it some weight

given its consistency with other evidence, including the site post order itself, which

referred to “open sores and wounds on face and body” as grounds for ejection.

[243] Mr. Mack also recalled a specific incident with Lee Wilkie. Mr. Wilkie was an

Aboriginal resident of Vancouver Native Housing. At the time, he was using a

wheelchair. Mr. Wilkie approached Mr. Mack in his office and told him that he went into

the mall to cut through to the Skytrain. About halfway through the mall, two security

guards approached him and pushed his wheelchair around and out the north doors. They

told him he was not allowed in. At the time, Mr. Wilkie was wearing a red and white

striped t-shirt and blue jeans. In Mr. Mack’s opinion, he did not fit into the site post

orders’ criteria for ejections. In his words, Mr. Wilkie looked like he was “living pretty

good” at the time. Mr. Mack advised Mr. Wilkie to file a complaint about this incident,

but he does not know if he did. Mr. Mack said that Mr. Wilkie told him he had been

physically removed from the mall in this way on several occasions. Again, despite the

hearsay nature of this evidence, I am prepared to give it some weight, as it is consistent

with the preponderance of the evidence, and in particular, the many Security Occurrence

Reports in which guards told Aboriginal people they could not cut through the mall.

[244] Mr. Mack said that he and Mr. Chevillard were growing increasingly concerned

about the pattern of complaints they were receiving from their tenants. He would tell

people who complained to him to complain to Vancouver Native Housing’s Head Office

or United Native Nations. Mr. Mack had ample opportunity to observe the mall from

across the street, and testified that in all his time working there he never saw anyone

other than Aboriginal people being harassed by security personnel. To him, it seemed

like it was getting worse every day.

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[245] Excerpts from the logbook which was kept at Vancouver Native Housing were

entered into evidence through Mr. Mack. In the main, the logbook deals with events at

the facility itself, but it also contains some references to issues arising across the street at

International Village. Mr. Mack explained that the building was a rather chaotic one, and

it was not always possible to make notes of every conversation or incident which was

reported to them.

[246] Among the relevant entries is one in Mr. Mack’s handwriting about a

conversation he had with Judith Muir, a resident of the facility. She is either Métis or

Aboriginal. Ms. Muir told Mr. Mack that she had been harassed by a female security

guard at the mall who asked her what her business was in the mall, and told her that if she

was not there to shop, she could not come in. She told Mr. Mack that she went to the 7-

Eleven, where she complained to the store manager about this treatment. On another

occasion, Mr. Mack noted that Ms. Muir and Ms. Radek came to him together to talk

about harassment at International Village. Mr. Mack described Ms. Muir as well-dressed,

about five feet tall, 115-120 pounds, 30-35 years old. This is strikingly similar to Ms.

Radek’s description of “June”, which is one of the reasons I think “June” is Judith Muir.

He thought she worked as an administrative assistant. He said there was no way she

would fit into any of the categories in the site post orders. Despite the hearsay nature of

the evidence about Ms. Muir, I am prepared to place some weight upon it, given that both

Mr. Mack and Ms. Radek testified about her, the inclusion of some contemporaneous

notes about Ms. Muir in the logbook, and its consistency with other evidence about the

treatment of Aboriginal people in the mall.

[247] Another incident noted in the logbook refers to a tenant witnessing a woman

being beaten at Tinseltown. The tenant came into the office to call the police. The police

came and said that both individuals were stoned on crack and let them go their separate

ways. This incident does not appear to relate to the actions of the guards at the mall.

[248] The logbook also refers to various conversations which both Mr. Mack and Mr.

Chevillard had with Ms. Radek and others about the concerns which they had about the

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security guards’ treatment of native people. In an entry dated May 10, 2001, Mr. Mack

notes that Ms. Radek told him about the incident that day. The note reads as follows:

Gladys Radek says she was assaulted at Tinsel Town Mall by a female

security guard, then confronted by another security guard, during this

confrontation, the female security guard left walked away.

Gladys Radek and Monica Wolfe then phoned police. When Police showed

up, the conversation somehow switched to the topic of racism, at this point

one of the Police Officers admitted to being a racist to, because the feeling

of this topic is what the female security guard was, and that is racist.

[249] It is apparent from the logbook, which notes various conversations and meetings

which Mr. Chevillard and Mr. Mack had with Ms. Radek, that they were assisting her in

doing the preparatory work necessary for her to make the complaints which she

eventually made to both the Human Rights Commission and the Police Complaints

Commissioner. For example, after the May 10 incident, she asked them to note in the

logbook when they heard complaints about guards at Tinseltown. While they

occasionally did so, I accept Mr. Chevillard’s and Mr. Mack’s evidence that the logbook

was intended for matters directly related to the facility, and that not everything related to

Tinseltown was recorded.

[250] Mr. Mack also gave evidence with respect to Robert Samson. I deal with the

evidence relating to Mr. Samson below.

G. Robert Samson

[251] Mr. Chevillard described Mr. Samson as a young native with long hair. He said

that he is very well-spoken and intelligent. On several occasions, Mr. Samson came to

Mr. Chevillard very angry about his experiences at the mall. These events occurred in

the first few months after Vancouver Native Housing opened. Mr. Samson told him that

he was not allowed into the mall or was followed once he was inside. On two occasions

he was forcibly ejected. On one occasion, the police attended. Mr. Chevillard said that

Mr. Samson said that he was physically ejected for no reason when he was simply trying

to walk through the mall. Mr. Chevillard said that he believed Mr. Samson.

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[252] Ms. Radek also testified that she saw Mr. Samson shortly after he got beaten up.

This was sometime around January 2001. His face was all bloody. She said that he was

a “tiny little guy”, weighing maybe 100 pounds. He told her he had been beaten up by

five or six guys at the back Starbucks entrance. While Ms. Radek agreed in cross-

examination that Mr. Samson is a drinker, she denied that he was drunk when he told her

about being beaten up.

[253] The best evidence with respect to Mr. Samson came from Mr. Mack. He testified

about an incident in May 2001 in which he observed the following. Mr. Mack was doing

work on the sidewalk outside of Vancouver Native Housing. He could see through the

glass doors on Pender Street into the mall. He saw Mr. Samson walking from the

Skytrain entrance (which I take to mean the Starbucks entrance) through the mall with

four heavy bags of groceries from Safeway. He saw a number of security guards come

out and stand in front of Mr. Samson. At the time, Mr. Samson was approximately 20

feet into the mall. The guards picked him up under his arms and took him out the door he

had come in, physically ejecting him. Mr. Samson had to go around the mall.

[254] Mr. Samson approached Mr. Mack immediately after the incident. He told Mr.

Mack that he was going through the mall and decided to go to 7-Eleven. The security

guards would not let him do so. Mr. Samson told him that they had said they were

supposed to keep his kind out of the mall. Mr. Mack asked him if he wanted to report the

incident, but Mr. Samson said no.

[255] Mr. Mack described Mr. Samson at the time of this incident. He confirmed Ms.

Radek’s evidence about Mr. Samson’s slight build and short stature. He said that Mr.

Samson did not fit into the criteria set out in the site post orders: his clothes were not

torn and he was not drunk or stoned.

[256] Mr. Mack wrote a note, dated May 16, 2001, about Mr. Samson’s experiences on

this and another occasion in May, which was entered into evidence.

[257] I have reviewed Securiguard’s Security Occurrence Reports and Banned Books

for the relevant period, and have not found any which refer to Mr. Samson by name.

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Most Security Occurrence Reports do not name the individuals; most but not all entries in

the Banned Books do, but the names given are not necessarily correct. While there are

some which may deal with Mr. Samson, there is none that I can identify as such.

[258] The evidence with respect to Mr. Samson is very troubling. I accept the

truthfulness of Ms. Radek’s, Mr. Chevillard’s and Mr. Mack’s evidence. Only Mr. Mack,

however, directly observed any incident; the others relied on and believed what Mr.

Samson told them. According to Mr. Mack, Mr. Samson is now dead. He had an

aneurism. I accept and place significant weight upon Mr. Mack’s account of what he

observed in May 2001, in which Mr. Samson was physically lifted up and removed from

the mall for no apparent reason. The remaining evidence about Mr. Samson I accept, but

can place little weight on it. Mr. Mack testified that Mr. Samson was a “likeable little

guy”, but that he was an opportunistic drug user. Ms. Radek said he was a drinker. Mr.

Chevillard said that on the two occasions he spoke with Mr. Samson, he was very sober,

but he acknowledged that he did use drugs. I have no way of determining what conduct,

if any, of Mr. Samson’s may have led up to the other events about which he told Mr.

Chevillard and Ms. Radek. Some of the guards’ actions at other times may have been

justified. I simply do not know.

H. Teresa McDougall

[259] Mr. Chevillard testified about Teresa McDougall. He said that Ms. McDougall

was a middle-aged Aboriginal woman. Due to an injury and illness, she used a motorized

wheelchair. Prior to her disability, she had been a nurse. Mr. Chevillard said that due to

her illness, which he thought might be Parkinson’s disease, she shakes and her eyes get

blurry. She is always clean and well-dressed.

[260] Ms. McDougall told him that she was cutting through the mall to catch the

Skytrain. Like other tenants, she did this regularly. On this occasion, the guards turned

off her motorized wheelchair and pushed her out of the mall in the opposite direction into

the rain. She had to go around the mall. She came to see Mr. Chevillard, soaked and on

the verge of hysterics about this treatment.

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[261] Mr. Chevillard called the mall security to complain about this incident, as he did

with respect to a number of other complaints he received. He was told the same thing he

was always told when he attempted to complain – that the person was intoxicated and

causing a disturbance.

[262] Ms. McDougall did not testify. No explanation was given for this. I am,

however, prepared to place some weight on Mr. Chevillard’s evidence about Ms.

McDougall. It was detailed, and had the ring of truth. Ms. McDougall’s experience, as

described by Mr. Chevillard, is consistent with other evidence about security guards’

practices. The symptoms of her disability may have appeared to the guards to be signs of

intoxication. Further, Aboriginal people were often told they could not cut across the

mall.

I. Adele Wagner

[263] Adele Wagner is a petite Métis woman who was born in 1953. She grew up in

Grand Forks, British Columbia, and later lived in Alberta. She is single, and has lived in

the Downtown Eastside for the past seven years. Since October 2002, she has lived at

Vancouver Native Housing. Prior to that, she lived on Keefer Street, half a block off of

Main Street. She proudly describes herself as having “no bad habits” – she does not use

drugs or alcohol. She says that she always wears presentable clean clothes, which are not

ripped.

[264] Ms. Wagner works with the Second Mile Society, doing volunteer work and

sitting on its Board of Directors. The Society is a support group for seniors and provides

them with needed services.

[265] Ms. Wagner knows Ms. Radek only by name and sight. She had no involvement

in this case until she happened to run into Ms. Radek’s counsel at Vancouver Native

Housing, shortly before she gave evidence.

[266] When Ms. Wagner first heard about International Village she thought it would be

great for everybody in the Downtown Eastside. She expected it to be full of new stores,

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like Army & Navy, where she would be comfortable. She said that it did not turn out that

way.

[267] Ms. Wagner’s evidence was somewhat difficult to follow. She was not able to

describe events in chronological order. It was difficult to understand when particular

conversations happened. Ms. Wagner struck me as a very pleasant and sincere person,

and I have no doubt that she told the truth to the best of her ability, however, I have

treated some aspects of her evidence with caution.

[268] Ms. Wagner described the first time she went into International Village. She was

with a couple of other people. She testified that security guards were “on their tails”.

The guards followed them, stopped where they stopped, and generally gave the

impression that they thought that “we were going to walk out with the store on us”. Ms.

Wagner testified that she turned around and spoke to one of the guards and told him they

had been “tailing us”. According to Ms. Wagner, the security guard said they had been

watching everybody, “people like you”, “making sure you don’t shop lift”. She told the

guard she did not shop lift. As soon as this conversation ended, Ms. Wagner and her

group left. Ms. Wagner testified that this was an awful experience; that the security

guards gave her an awful feeling and that she just did not feel comfortable at all. She was

upset when she testified about it. I accept that this incident occurred substantially as Ms.

Wagner described it.

[269] Ms. Wagner testified about an incident when she was outside with a friend,

walking her dog, a white poodle, on the sidewalk outside the mall. She said that they

were standing there talking for a couple of minutes, when a security guard, who was

standing out front, told her and her friend that they were not supposed to be on their side

of the sidewalk. He told them to cross the street, “to go over to Hastings and stay there”.

She also testified that the guard told them to “get the hell out”. She later elaborated on

her evidence, saying that the guard went on at some length about them being a “bunch of

natives that shouldn’t be here, should be on Hastings, that people like us gave the

building the wrong impression.” Ms. Wagner testified that she told them they were not

polite and were racist, to which they responded that “that was too damn bad, they don’t

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care for natives.” Ms. Wagner testified that she was angry, and walked away. If she had

had a rock, she said, she would have thrown it.

[270] From other evidence, I am aware that the security guards understood International

Village’s property line to extend to the middle of the sidewalk. I accept that a guard told

Ms. Wagner and her friend they could not remain on that part of the sidewalk. The

conduct would likely have been perceived as loitering by the guard. On the evidence

before me, I cannot determine precisely what the guard said to them. Ms. Wagner’s

evidence with respect to what the guard said was too inconsistent for me to be able to rely

on it to make this determination. I accept, however, that Ms. Wagner had an unpleasant

conversation with guard in which it was made clear to her that she was not welcome at or

near International Village, and that that lack of welcome was connected to her being

native.

[271] Ms. Wagner also testified about another incident inside the mall sometime later in

which guards followed her and her friends as they walked around, checking out the

theatre, food fair and courtyard. On either this or another occasion, the security guards

told her and her friends to leave. She did not return to International Village after this

incident. She testified that she felt more comfortable shopping elsewhere.

[272] Ms. Wagner was not able to describe the guards involved in any of these incidents

except to say that there were always two and they wore Securiguard company name tags.

[273] Ms. Wagner also gave very dramatic testimony about an incident in Andy

Livingstone Park, which is across the street from the mall on the south side. She said that

she was there walking her dog. She said that there were some Securiguard security

guards there, perhaps on their lunch break. She testified that they started hassling

everyone. They recognized her dog. Once again, they told her that because she was

native she should stay on the other side of Hastings. She testified that they said to her

“you’re nothing but a fucking little Indian.”

[274] While the evidence with respect to the incident in the park is very disturbing, I

find I am unable to rely on it. Ms. Wagner was unable to identify the security guards in

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question, and was inconsistent with respect to the details of this incident, including what

was said and when the event occurred.

J. Angela Sterritt

[275] Angela Sterritt is a member of the Gitskan Nation. Ms. Sterritt is very fair-

skinned, and testified that she can “pass” for white, especially if it is not the summer.

Based on her appearance, I would not have been able to identify Ms. Sterritt as being

Aboriginal.

[276] She grew up in Vancouver and Campbell River. She is 28 years old, and at the

time of giving her evidence was going into her third year of Political Science at the

University of Northern British Columbia. She has taken courses in racism, studying

issues like race analysis, privilege, and systemic racism. At the time of the most

significant events recounted in her evidence, the spring of 2001, she was working with

the Environmental Youth Alliance as a youth project coordinator. Her office was at 119

W. Pender, kitty-corner to International Village. She is now working as a youth-care

worker at the Prince George Native Friendship Centre.

[277] Ms. Sterritt has no relationship with Ms. Radek, and when she testified she had

not read the complaint. While Ms. Sterritt has strong political views about International

Village, I did not find that those views slanted her evidence. She is an intelligent,

impressive young woman. I found her to be a credible witness. I rely on her evidence.

[278] As a teenager, Ms. Sterritt had lived in the Downtown Eastside in a single room

occupancy (“SRO”) hotel. She said that she enjoyed living, working and shopping in the

Downtown Eastside, where she said there was a good sense of community. When Ms.

Sterritt first learned that International Village was to be built, she was concerned about

the impact it would have on the people living in the Downtown Eastside. She talked

about it with her friends and analyzed the issue. She was quite fearful about it.

[279] The first time Ms. Sterritt went to the mall was in or about September 2000, when

she moved into her office across the street. She candidly admitted that she did not want

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to go, essentially due to her political objections, but she enjoyed the cheap Asian food in

the food fair and the convenient location. She went to the mall at least once a day,

sometimes more. At first, she did not have any real issues, but in the period December

2000-February 2001 she and her friends started to have problems with the security

guards. She recalled being told they could not sit around outside of the Starbucks. It was

unclear in her evidence precisely how many times this occurred. She found the guards

rude. She found their behaviour strange, as she and her friends had money and would

spend it in the mall.

[280] The treatment which Ms. Sterritt received at the mall varied depending on who

she was with. Often she went with her friend Billy Pierce, who was the editor of the Red

Wire Magazine. Ms. Sterritt described Ms. Pierce as visibly Aboriginal and dressing in

business-type clothes. When she was with Ms. Pierce, she would be treated in a rude and

abrasive manner by the guards, and be told that “you can’t hang around here, you can’t

loiter”. Ms. Sterritt recalled a particular instance with Ms. Pierce when they were going

to the pasta shop. The guards asked them what they were doing here. She and her friend

swore at the guards, saying words to the effect of “what do you think we’re doing?

Buying food like we do every single day here.” Ms. Pierce told her to just ignore them,

which is what they usually did.

[281] Ms. Sterritt described similar treatment when she was with her boyfriend or other

employees who were visibly Aboriginal. On those occasions, the guards would always

check them out. They would follow them, sometimes walking right beside them, asking

questions about what they were doing. Sometimes they would stand and watch them as

they went into Starbucks or 7-Eleven, sometimes they would go right in with them. They

would make their presence known. The guards would give them strange looks and she

would feel awkward. She described the guards as “looking at us suspiciously, creating an

atmosphere of tension on a low-scale level.”

[282] By contrast, Ms. Sterritt testified that when she was alone or when she was with

her boss, they would never be harassed and could do what they wanted. Ms. Sterritt’s

boss was a 35 year old Caucasian woman who generally dressed a little more casually

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than she did. As a result of the differences in the treatment she received, Ms. Sterritt was

much more comfortable going into the mall with Caucasian people. This is consistent

with Ms. Radek’s evidence about how she never had any problems with the guards when

she was with her white friends.

[283] Ms. Sterritt testified that the issues with the guards got worse in the spring of

2001. The program she was working on ended in April 2001, so the events she testified

about occurred before then. She testified about the worst incident she experienced, which

occurred during this period. On the day in question she went to the mall for lunch with a

group of people. One of them was a fellow employee, “Dave”. Dave is Tlingit, with

very dark skin and short hair. Ms. Sterritt said he was dressed in very nice clothes. Ms.

Pierce was also there, as was “Sean”, Ms. Sterritt’s then-boyfriend. Sean is Dene Cree,

and also visibly Aboriginal.

[284] Ms. Pierce went to the bathroom. The others waited for her on the ground floor

near some benches outside the bathrooms. While Ms. Pierce was in the bathroom, a

security guard approached Dave and asked him what he was doing in the mall. A

discussion, which lasted for some time and was pretty heated at times, ensued. During its

course, other people walked by – some of them Caucasian, some Asian, none Aboriginal.

[285] Ms. Sterritt asked the guard why he approached Dave, why he approached her

group when there were Caucasian people in the mall. The guard said he had to do his

job. Ms. Sterritt challenged him, asking him if his job included racism. The conversation

went on, with Ms. Sterritt talking about the fact they were in the mall everyday, spending

money. Ms. Sterritt quoted the guard as saying “It’s our policy to keep the riff raff out.”

When pushed further, the guard said “That’s right, we’ve been given a directive by

management to keep the riff raff out.”

[286] Ms. Sterritt characterized the guard, whom she described as about 25 years old

and South Asian, as getting very angry and more and more flustered. Ms. Sterritt said he

was having a hard time articulating his thoughts or giving reasons for his conduct. Ms.

Sterritt described herself as very calm, not raising her voice. Ms. Sterritt is very

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articulate, and a strong advocate – I accept that the guard found her very difficult to

contend with.

[287] Finally, the guard told them to leave or he would call for backup. They did not

leave, and he called for backup. Three other guards appeared. They told the group they

had to leave. Ms. Sterritt continued to verbally resist, telling the guards this was racism

and discrimination. The guards told her they would call the police and she would be

arrested if she did not leave. They had a camera and were trying to take her picture. The

guards told her she was barred for life from the mall. She ducked so they could not take

her picture, and Sean put his hand over the camera.

[288] Eventually, the guards escorted the group out, telling them they were all barred

for life.

[289] All members of the group were very angry. Ms. Sterritt said it felt very

disempowering, like they were back in the 50s with “the stuff” her parents went through

then. She felt humiliated. She thought it was really sad for people darker skinned than

her, as she considers herself relatively privileged. She and her friends discussed what

they should do. Ms. Sterritt testified that she called “Human Rights”, but did not pursue

the matter. She was not very clear about why she did not follow up, other than to say she

ran into red tape or a brick wall. She did not call mall management to complain because

the guard has told her he was acting pursuant to a management directive.

[290] After this incident, Ms. Sterritt tried not to return to the mall, but did sneak in a

few times because the call of the good, cheap food was too strong. She said that, when

she did so, she would simply hide from the guards.

[291] I accept Ms. Sterritt’s evidence in its entirety, including about this incident, which

I find occurred substantially as she recounted it.

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K. Brent Houston

[292] Mr. Houston is a white man. He manages a hotel in the Downtown Eastside. He

is, as stated previously, Ms. Radek’s boyfriend. I found Mr. Houston to be a credible

witness; I accept his evidence in its entirety.

[293] I have dealt with Mr. Houston’s evidence about the May 10 incident in the course

of determining what occurred that day. I do not repeat it here.

[294] Mr. Houston also testified about his experiences shopping at International Village.

He said that he went there three or four times a month to go to a number of stores that are

no longer in business, as well as Starbucks and 7-Eleven. When he went there he would

wear a t-shirt and jeans. He testified that he never had any problems at the International

Village.

[295] In particular, Mr. Houston testified that he never had any interactions with the

security guards at the mall, with the exception of one occasion when he asked a guard a

question about the closure of the arcade in the mall.

L. Vanessa Savage

[296] Vanessa Savage is a 40 year old mother of one, who was pregnant with her

second child at the time she testified. She is married to Ed McCurdy. She has lived in

East Vancouver for 15 years, the last three or four in Strathcona/Chinatown.

[297] Ms. Savage is Caucasian, but has fairly dark skin. She testified that all of her life,

depending on how tanned she is and her weight, she had been mistaken as Middle Eastern

or Aboriginal. She does not know Ms. Radek, and testified that, when she met her at the

hearing, Ms. Radek asked her if she is Aboriginal.

[298] Ms. Savage has worked for the Portland Hotel Society for four years as a mental

health worker on various projects including the Insite Safe Injection Clinic. Before her

first maternity leave she also worked for the Society as the dayshift coordinator at the

Sunrise Hotel, an SRO hotel run by the Society.

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[299] I found that Ms. Savage gave her evidence in a forthright, straightforward

manner. She was not given to exaggeration. I rely on her evidence.

[300] Like other witnesses, Ms. Savage described her experiences shopping in the

Downtown Eastside in positive terms.

[301] When she heard about International Village being built, she was curious. She

thought the theatres would be a good addition to the neighbourhood, and hoped that it

would provide some useful services which were needed in the community.

[302] She first visited International Village with her sister and father sometime soon

after it opened. Ms. Savage described her father as British, tall and distinguished, and her

sister as more formally dressed than she was. She thought she was probably wearing

jeans, which is what she typically wore. Ms. Savage was not sure of the date, but

remembered there were very few stores open. She was impressed with the space. She

did not recall any particular security presence on that occasion.

[303] Given that she worked in the neighbourhood, Ms. Savage would periodically go

to International Village. She went there perhaps twice a week. She used services such as

the banking machine at the 7-Eleven, the Starbucks, and the food fair on occasion. She

would also use it to cut through to T&T Supermarket. She would sometimes use the

washrooms, which were located near the security guards’ office.

[304] Ms. Savage recalled that there was always a heavy security presence. She noticed

that they appeared to target those who “looked a little off”, who were “not the kind of

clientele they were looking for”. On occasion, she saw security guards “swarm” a person

whom she assumed they deemed undesirable for some reason. She never observed any

inappropriate behaviour on the part of these people, so she assumed that their appearance

marked them out. In particular, she noticed native people being treated in this way. They

would be followed, talked to, asked to leave.

[305] Ms. Savage admitted, however, that she did not pay much attention to these

events until after an incident in which she was directly involved, in June, I believe of

2001. On that occasion, she went to the mall on her break to buy a magazine at 7-Eleven

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and go to Starbucks. She entered the mall through the north entrance and walked through

the mall to the 7-Eleven. Ms. Savage testified that she had a “funny feeling” she was

being followed. She went into the 7-Eleven and looked at magazines. By this time a

male security guard was definitely watching her. He was making himself obvious and,

she felt, trying to intimidate her. Ms. Savage described him as a rather large south Asian

man. He was standing in the 7-Eleven about six to ten feet away from her. She was

irritated, but went ahead and bought her magazine.

[306] After buying her magazine, Ms. Savage turned around and looked at a newspaper

headline. She bent to pick up a Georgia Straight (a free community newspaper), and

went back out into the mall. When she was about 20 feet into the mall, the security guard

stopped her. He stood very close to her, was very physically intimidating, and demanded

to see what she had in her arm. Ms. Savage described herself as not usually getting

discriminated against. She told the guard to back out of her physical space and said to

him words to the effect of “hey buddy, I just purchased a magazine”. She described

herself as being in shock at being treated like that.

[307] The guard again demanded to see what she had in her arm. Ms. Savage told him

to back away, that she knew her rights and to leave her alone.

[308] The guard demanded that she leave. She told him she would not, that she was

going to Starbucks, which she proceeded to do. At some point in this interaction, she

finally showed the guard her magazine and the copy of the Georgia Straight which she

had picked up. The guard got on his walkie-talkie, and at least two more guards

appeared. Shaken by the experience, Ms. Savage ordered her drink and sat down in the

Starbucks. The guards remained standing outside. She called a co-worker on her cell

phone. After about five minutes they left. It was apparent from the manner in which Ms.

Savage recounted this incident that it upset her greatly.

[309] Ms. Savage testified that she was “pretty steamed” for a few days, but that after

that she resumed going to the mall. She personally had no other untoward incidents at

the mall. However, having had this experience, she became more aware of what was

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going on around her. There were two incidents with Aboriginal people that stood out for

her.

[310] In one, Ms. Savage saw an elderly native man on crutches. This was sometime in

July or August of 2001. A number of guards swarmed around him and denied him entry

at the Starbucks entrance to the mall. Ms. Savage thought there might have been three of

them. She described the man as very passive. She watched the entire incident and could

see no untoward behaviour on his part. His clothes may have looked a little rumpled.

[311] In the second incident, which also occurred that summer, Ms. Savage saw a native

man, whom she thought might have been slightly inebriated, but there was nothing to

indicate he was an unsavoury character. He was very passive. A number of guards

crowded around him. The man told them that he just wanted to use the washroom. The

guards denied him entry. He argued for a while, trying to appeal to the guards’ sense of

decency. She was impressed with his self-respect. He finally gave up and left.

[312] Ms. Savage was questioned in cross-examination about whether her opinion of

this incident would be different if she knew it was the mall’s policy not to allow people

who were not shopping to use the washrooms. I note that the evidence did not reflect that

that was in fact the mall’s policy; for example, there was no evidence of signs being

posted to the effect that only customers could use the washrooms. In fact, there was

evidence from the security personnel that all mall visitors, with the exception of known

drug users or others deemed suspicious, were allowed to use the washrooms. In any

event, when asked, Ms. Savage said that she thought that would be a “stupid policy” and

“kind of sad”. She testified that, in her experience, many business owners do allow

people to use their washrooms, and that she had certainly done so in the past. She went

on in cross-examination to refer to her experience working in a hotel. Ms. Savage

testified that she had had to bar people, but that the manner in which these guards barred

this man was inappropriate. They did not sit down and explain the policy; rather, two or

three men semi-circled around him in close proximity. Given the man’s passivity, the

guards’ behaviour seemed excessive to her.

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[313] Ms. Savage also testified more generally about her observations. She testified

that it appeared to her that the guards targeted those who were not affluent or acted “a

little off”. From her experience in the mental health field she is familiar with how

mentally ill people or those on medications for mental illness may behave. She saw

people whom she identified as being mentally ill being denied entry, talked to and

followed by guards. These people, she said, were not shouting or acting out in a

disruptive way, but were simply acting a little “weird”. According to Ms. Savage, it is

“not a problem to usher people like that out, they are used to being pretty marginalized”.

Ms. Savage testified that she had not observed people acting in a similar way in other

malls be treated that way.

[314] I accept Ms. Savage’s evidence in its entirety. She was a careful witness, who

was willing to admit the limits of her knowledge and recall. She was a perceptive

observer.

[315] Ms. Savage attended the VANDU protest that her husband, Mr. McCurdy, helped

to organize. I deal with her evidence about that protest in conjunction with the other

evidence about that event below at para. 341.

M.Tom Laviolette

[316] Tom Laviolette is a father of two, who has lived and worked in the Downtown

Eastside for many years. He is white. He has an undergraduate degree from the

University of Waterloo and a Masters degree from the University of British Columbia,

both in planning. He has worked for the Portland Hotel Society as a planner for about

two and a half years. Before that, he worked with the Carnegie Community Centre

Association, out of the Carnegie Centre, which is located in the heart of the Downtown

Eastside at Main and Hastings. He worked there as a community development planner

on issues of concern such as housing, drug policy, public space issues, and

neighbourhood development. Mr. Laviolette is involved as a volunteer on the City of

Vancouver’s Planning Committee and on the Gastown Historic Area Planning

Committee.

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[317] Mr. Laviolette does not know Ms. Radek. Although he is a strong advocate for

the people of the Downtown Eastside, Mr. Laviolette impressed me as a reasonable, fair-

minded person. I accept his evidence.

[318] When he learned of the International Village development, Mr. Laviolette

predicted that, as a “mega-project”, it would be a significant imposition on the

neighbourhood, for good or bad. Mr. Laviolette believes that the Downtown Eastside is

not immune from inner city developments which will result in the eventual upscaling of

the neighbourhood and displacement of the existing population. It appeared to Mr.

Laviolette that, from its advertising, marketing and publicity, International Village

definitely seemed to be trying not to fit into the community. The developers appeared to

see the Downtown Eastside not as an asset but as something to avoid. Instead, they

emphasized the development’s proximity on the other side to Yaletown and Chinatown.

[319] After the mall opened, Mr. Laviolette, who was interested in it from a planning

perspective, went to see it. This was sometime in the summer of 2000. He was

particularly interested in the statutory right of way, with which he was familiar. He

understood that Henderson was legally required to allow the public unimpeded access to

the right of way during operating hours.

[320] On his first visit to the mall, nothing noteworthy occurred. Mr. Laviolette

describes himself as a white male, who dresses reasonably well, and does not look or

“smell terrible”. He simply looked around. He noticed the large number of unleased

commercial spaces.

[321] Thereafter, Mr. Laviolette occasionally went to the food court and the theatre in

the mall. He estimated that he went there two or three times a month. He also sometimes

used the mall as a shortcut to the Skytrain. While Mr. Laviolette heard stories of other

people having problems in the mall, and in particular being denied access to cut through,

he never had any problem.

[322] Mr. Laviolette attended regular meetings with the Carnegie Community Centre

Association in this period. At those meetings, he would hear stories about other people’s

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experiences in the mall. The stories are typical of the evidence recounted in this decision.

What struck Mr. Laviolette as odd is that the people being targeted had money and were

potential patrons of the stores in the mall. From his perspective, it appeared they were

being targeted because they came from a low-income neighbourhood, and were not the

kind of clientele the mall was trying to attract. It was out of those meetings that Mr.

Laviolette became involved in the correspondence with Henderson about concerns about

the actions of security personnel at International Village, which I have dealt with above at

paras. 105-106.

[323] Mr. Laviolette testified about other stores and shopping areas in the Downtown

Eastside. Contrary to popular opinion, which tends to consider it a “dead-zone”, there are

still quite a lot of stores which the local community patronizes. Army & Navy is one of

the bigger ones. Shopping areas such as Gastown and Chinatown and bigger stores like

Army & Navy employ their own security personnel. To his knowledge, these security

personnel are not currently a problem. While there were problems in the past with

private security in Gastown, with experience and education, these have been solved.

They now legitimately target people who are shoplifting, and do not have systemic

policies to target low-income people. If they did, he said, they would not have much

business.

[324] In cross-examination, Mr. Laviolette accepted that there could be legitimate

reasons for security personnel acting. But he felt that many more incidents happened as a

way to remove someone the guards did not like, who did not fit the image of who they

wanted in the mall. He accepted that the mall could prohibit drug use in the mall, but

countered that just because a person is a drug user it does not mean they are using drugs

at any given moment; they may be simply trying to walk through, go to a movie, or eat in

the food court.

[325] In cross-examination, Mr. Laviolette referred to his observations of the mall more

recently. He has noticed the high vacancy rate and a reduced security presence. He

accepted, based on his knowledge of security in Gastown and Chinatown, that security is

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paid for by a levy on the tenants, and that with fewer tenants, there would be fewer

guards.

[326] Mr. Laviolette also attended the VANDU protest at International Village. I deal

with his evidence about that event in conjunction with the rest of the evidence on that

issue.

N. Ed McCurdy

[327] I have already addressed some of Mr. McCurdy’s evidence in discussing the

controversy in the community with respect to International Village and the security

practices there, and in particular his role with VANDU. I do not repeat it here.

[328] Mr. McCurdy testified that his first visit to the mall was uneventful. He noticed

that there was a lot of security, but nothing to buy, as the stores were not open. On his

second visit, however, Mr. McCurdy had an unpleasant experience. He went to the

Starbucks and needed to use the washroom. As he was using the facilities, he noticed a

large male security guard standing behind him. Mr. McCurdy turned and asked “Can I

help you?”, and “Can you please move away?”, to which the guard replied, “No, I’m

comfortable standing here.” Mr. McCurdy told the guard he was going to the bathroom

and needed some privacy, but the guard did not move. This is reminiscent of Mr.

Chevillard’s evidence about being followed into the bathroom by a security guard.

[329] More generally, Mr. McCurdy said that while he disliked malls and tried to avoid

going to International Village, it was hard to avoid going there given the shops and the

convenient pedestrian right of way. He said that in May 2000, after he started at the

Portland Hotel Society, which is a five minute walk from the mall, he would go there for

coffee daily. From his evidence, however, it would appear that on those occasions he

would usually enter and exit from the exterior Starbucks entrance and avoid the mall

proper.

[330] Mr. McCurdy testified that the thing that stood out about International Village

was the lack of friendliness when you enter. He contrasted that with a nearby bank where

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Securiguard also provided security services. There, he said, there was always a pleasant

greeting, whereas there was never a pleasant greeting at the International Village. In his

experience, there was only a greeting at International Village if they were trying to get

you out. Mr. McCurdy testified that on his visits to the mall he frequently saw native

people being targeted by security. He said that it was not unusual to see an Aboriginal

person in old clothes being escorted out. He said that such occasions were so numerous it

was hard to be specific. The difficulty with Mr. McCurdy’s evidence in this regard is that

he also testified that he avoided the mall as much as possible, thus making it difficult to

assess his opportunities for observation. He did not keep any written record of his

observations or the stories that he heard, and was very unclear as to dates and specifics of

the incidents he observed and heard about. As a result, I place comparatively little

weight on his general observations and recollections. I place significantly greater weight

on his more specific observations and recollections, as outlined below.

[331] Mr. McCurdy testified that after the incident his wife, Vanessa Savage, had with

mall security, “the gears started turning”. While Mr. McCurdy did not date this incident,

I have found that it occurred in June 2001.

[332] In addition, Mr. McCurdy said that in his position as an advocate with the

Portland Hotel Society, many people spoke to him about being asked to leave the mall.

This increased after he started work with VANDU in June 2001. Mr. McCurdy testified

that VANDU has approximately 1000 members, of whom approximately 70% are

Aboriginal. The majority are current injection drug users; the others are former users.

[333] Mr. McCurdy held periodic meetings with the VANDU membership at which

100-200 people would be in attendance. At those meetings, the members would discuss

various issues and challenges. Mr. McCurdy testified that problems at Tinseltown kept

coming up, and he began to realize that something was wrong.

[334] According to Mr. McCurdy, at a meeting at the end of June 2001, VANDU’s

membership decided that because a lot of them had problems getting in the mall, they

would like to go as a group to see a movie at the Tinseltown theatre. The event was

organized for July 2001. Twenty-four VANDU members were selected to attend the

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movie night. Mr. McCurdy and Ann Livingston, a long time VANDU staff member,

selected them on the basis of their past history. VANDU requires members who wish to

participate in certain programs, such as vocational programs, to do so without appearing

to be intoxicated to a VANDU staff member. The participants in the movie night were

selected on the basis that they had been involved in earlier programs, and had done so

without being intoxicated.

[335] On the appointed night the 24 VANDU members arranged to meet about one hour

ahead of time. Mr. McCurdy had bought the tickets ahead of time, and gave them to the

attendees, as well as providing them with money for snacks, both out of his own pocket.

He had told them all to wear their best clothes, and in some cases he lent them his own

clothes, as he wanted them to be as clean and presentable as possible. According to Mr.

McCurdy, about 70-75% of the participants were Aboriginal. Most of them were current

drug users. Mr. McCurdy testified that he instructed them not to get high before coming

to the mall. He also said that he was with them continuously from the meeting one hour

before going to the mall on, and that they did not appear intoxicated or high to him. He

qualified this, however, noting that given the effects of heroin on heroin addicts, they

would appear “normal” if they had used. He was unequivocal in cross-examination that

none of the participants in the movie night showed any signs of any sort of intoxication.

He did not deny that it was possible that some of them may have been caught shooting up

in the International Village washrooms in the past. I note, however, that there was, no

evidence that that was the case.

[336] They entered individually or in small groups from all the different entrances to

the mall, in order to observe how the guards reacted.

[337] Mr. McCurdy entered through the Pender Street entrance. He was not greeted by

any security guards. He was with another white man, Mike Graham. Mr. Graham is

about 35 years old and schizophrenic. Mr. McCurdy testified that Mr. Graham was on

medication at the time, and was not acting out. His clothes were not particularly dirty,

but he has a “funky hippy look” and does not look like “an ordinary guy”. Mr. McCurdy

testified that security guards quickly approached Mr. Graham and asked him why he was

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entering the mall, and where his money was or to show them his money. While doing so,

they did not speak to Mr. McCurdy or greet him in any way. Mr. Graham pulled out his

movie ticket and the guards let him go.

[338] Mr. McCurdy also observed another VANDU member, Mits Turtug, entering the

mall. By this time, Mr. McCurdy had progressed to near the centre of the mall. Mr.

McCurdy described Mr. Turtug as an Innu man, about 38 years old, with long hair, who

wears nice, clean clothes and appears to be a full-blooded Aboriginal. Although a

member of VANDU, Mr. McCurdy testified that Mr. Turtug was not actually an injection

drug user, although he did like to smoke marijuana at times. He was homeless, a

panhandler, and in Mr. McCurdy’s opinion, a unique and charming guy. Mr. Turtug had

told Mr. McCurdy about previous incidents in which he had been asked to leave the mall

by security staff, including one in which he had wanted to go to a movie but had been

required to leave by security staff. On this occasion, Mr. McCurdy observed a number of

guards quickly approach Mr. Turtug. Mr. McCurdy could see that Mr. Turtug was really

nervous and was having some trouble answering the guards’ questions. He appeared to

have forgotten he had a ticket. Mr. McCurdy walked up, and pretending to be a helpful

stranger, said “excuse me, are you having any trouble?” and asked him if he had a ticket.

Mr. Turtug then pulled out his ticket and the guards let him go.

[339] In both Mr. Graham’s and Mr. Turtug’s cases, Mr. McCurdy found the guards

confrontational rather than welcoming. He described three of the guards involved, two of

whom were Indo-Canadian and one was white. He said that he was amazed at how polite

and well-behaved the VANDU members were. He admitted that VANDU members had

typically had moments of misbehaviour in the past, and had been asked to leave malls

and other places. He attributed their good behaviour to the fact that they really wanted to

see the movie. By the time Mr. McCurdy reached the centre of the mall, there was a

“small community” of guards gathered there. They had been following the groups of

VANDU members entering the mall, and Mr. McCurdy had observed them talking on

their walkie-talkies and generally appearing to be very interested in his group. Mr.

McCurdy stepped in, indicated that all the VANDU members were together and had

tickets. It was Mr. McCurdy’s belief that the guards backed down when they realized that

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the VANDU members were with him. He said that he was not approached by the guards,

but that the Aboriginal members of VANDU were.

[340] Mr. McCurdy testified that sometime shortly before or after the movie night Mel

Hannon, a Vice President of VANDU, had gone to the mall and asked for a copy of the

ejection criteria. He was not given the criteria, but was given a business card, which he

brought to Mr. McCurdy, who called and set up an appointment. He went to the mall,

where he met with a person who was never identified by name, but was described by Mr.

McCurdy as a pleasant, middle-aged Asian gentleman. Mr. McCurdy thought he was a

mall manager, rather than employed by Securiguard. Perhaps he was Dennis Le. In any

event, in the meeting, which Mr. McCurdy said was very short, Mr. McCurdy was given

a copy of what must have been the March 2000 site post order. Mr. McCurdy thought

that some of the criteria were valid, but that others were not, and that they left too much

grey area for interpretation. He did not disagree that people should not be permitted to

shoot up in the bathrooms, but disagreed strongly with profiling people and removing

them before they had done anything.

[341] After the movie event, the VANDU group debriefed. The members believed that

the guards were targeting people, and that they should stage a protest. It took a couple of

months to organize the protest, which was held on a Saturday morning, October 25, 2001.

Media were informed in advance, some of whom attended, including the CBC and

CKNW. VANDU networked with the Carnegie Community Centre Association, the

Downtown Eastside Residents’ Association, and other community groups in planning the

event. Approximately 200 people participated in the protest. Mr. McCurdy said that

VANDU members participated, as well as other interested members of the community.

He said that participants were mostly Aboriginal or had other challenges. The protestors

met in a parking lot at the Portland Hotel, near the mall, and proceeded to the mall,

entering through the entrance beside the McDonald’s. By all reports, the protest was

peaceful, with people carrying placards through the mall protesting their exclusion from

the mall. Extra security were present, but generally did not interfere with the protest.

Mr. McCurdy did say, however, that at the very beginning an Asian man, the head of

security, asked them to leave, but that when they refused to, he did not intervene further.

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[342] In the process of planning for the protest, Mr. McCurdy heard more stories of

people, especially native elders, being abused at the mall. One of these concerned an

elderly native couple. The wife had multiple sclerosis, and according to Mr. McCurdy,

could appear mildly intoxicated as a result. They went to the mall to attend a movie on a

Tuesday night. She was wearing footwear which resembled slippers. A guard accused

her of being drunk and told her she could not be in the mall wearing slippers. Mr.

McCurdy said that this woman had since passed away.

[343] Mr. McCurdy also testified that in August 2001, during the planning phase, he

went to International Village with Earl Crow, the Vice President of VANDU. Mr. Crow

is Métis, and Mr. McCurdy testified that he is always impeccably dressed. Mr. Crow

needed to buy some phone cards at the 7-Eleven. Mr. Crow did not feel comfortable

going in, so Mr. McCurdy went in to the store through its street entrance and bought the

cards for him. Mr. Crow remained outside, leaning against the building. When Mr.

McCurdy returned, he saw three security guards standing beside Mr. Crow. He asked

them what was going on and they told him to mind his own business. Mr. Crow said that

they had told him that he could not touch the building. A discussion ensued about

whether the sidewalk was public property and just where Mr. Crow was allowed to stand.

The guards accused Mr. Crow of loitering. Several more guards were dispatched and

joined the group. The incident ended when the guards threatened to call the police, and

Mr. McCurdy and Mr. Crow left. Mr. McCurdy said that it was pretty humiliating. I

note that Mr. Crow is quoted in the November 19, 2001 Vancouver Sun article referred to

earlier as claiming that he knew of many people who had been treated rudely and forcibly

ejected by mall security.

[344] Mr. McCurdy testified that during the October protest he was approached by

Monica Grant of D’Vine Health, who told her about the difficulties she was having with

her business and mall management. Afterwards, he received a call from her at VANDU,

in which she told him that they had decided to terminate their lease for the store, and that

mall management was not allowing her access to the store to remove her property. She

asked them to come back to give her support. In response, on November 12, 2001, Mr.

McCurdy and a few VANDU members went to the mall to help Ms. Grant with moving

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out of the store. Mr. McCurdy testified that a security guard kept coming up to them as

they were helping her. The guard called Mr. McCurdy a “faggot” and told him “to lick

his balls” (or words to that effect). He also used lewd gestures.

[345] Afterwards, Mr. McCurdy contacted Ken Doern by e-mail to complain about the

guard. Mr. Doern was at that time Operations Manager for Securiguard, and Mr.

McCurdy knew him from Mr Doern’s service with the VPD. He considered him to be a

good police officer. Mr. McCurdy met Mr. Doern at the Old Spaghetti Factory, and the

guard was told to apologize to him. While Mr. McCurdy did not appreciate the apology,

the sincerity of which he questioned, he acknowledges that Mr. Doern took his complaint

seriously enough to set up a meeting.

[346] Mr. McCurdy was asked in cross-examination why he did not bring up any of his

other concerns with Mr. Doern. Mr. McCurdy’s answers to this line of questioning were

not particularly satisfactory. It was left unclear what issues he did discuss with Mr.

Doern, why he did not discuss other issues with Mr. Doern, and what Mr. Doern said he

would do about those issues which were discussed. Generally, I was left with the

impression that Mr. McCurdy did not discuss other issues with Mr. Doern in any depth.

Given the evident importance which Mr. McCurdy placed on the security guards’

treatment of disadvantaged residents of the Downtown Eastside, and his equally evident

respect for Mr. Doern, no adequate explanation for this reticence was forthcoming.

[347] According to Mr. McCurdy, the protest was a success in that it gave the VANDU

membership a sense of having accomplished something positive. Some people felt that it

changed the security guards’ behaviour, but according to Mr. McCurdy, more stories

quickly began to arise about their behaviour.

[348] From Mr. McCurdy’s evidence, it would appear that he has been at International

Village more often of late, as he said that his two year old daughter likes to go there,

despite his political beliefs to the contrary. He described an incident, which occurred

approximately two months prior to giving his testimony, in which he observed a young

native man being chased, by a security guard and a labourer who was working on site, out

of the mall and across Keefer Street and tackled to the ground. According to Mr.

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McCurdy, the young man was accused of stealing, but when his knapsack was emptied

out on the ground, he had nothing in there except masks and carving tools. He said that

he heard the security guards say something like “oops, sorry” and the young man walked

away.

[349] In general, Mr. McCurdy testified that he thought he saw a pattern of middle-aged

Aboriginal men being asked to leave the mall. He said that he could accept current,

behaviour-based reasons for asking people to leave or to stop the behaviour in question

(such as being asked to get off a skateboard), but did not think it was appropriate to do so

based on past behaviour.

O. Monika Grant

[350] Ms. Grant was an investor in a D’Vine Health, a store owned by her daughter in

the mall. Ms. Grant testified about a number of matters having to do with her family’s

legal disputes with Henderson. This material was largely irrelevant to the complaint. I

do not consider it except to the extent that it reflects on Ms. Grant’s reliability as a

witness. Given her evident hostility to Henderson and the outstanding litigation between

them, I have treated her evidence with caution.

[351] Ms. Grant’s evidence was helpful in establishing the circumstances surrounding

the mall’s opening. The mall was supposed to have opened in November or December

1999; with the exception of the theatre, it did not. A Grand Opening event was supposed

to happen at Chinese New Year, on February 6, 2000; at that time, only about six stores

were open for business. D’Vine Health opened on March 17, 2000, and was located on

the main floor of the mall, around the corner from Starbucks. By that time,

approximately eight stores were operating.

[352] Ms. Grant’s evidence also helped to establish the significant security presence in

the mall at the time D’Vine Health opened; as she put it, there were more security guards

than customers. At the same time, I find that Ms. Grant exaggerated the number of

security guards in the mall. She said that there were up to 22 guards in the mall at a time.

This nearly doubled the highest estimate given by any other witness. With the possible

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exception of special events (such as Chinese New Year), when additional guards would

have been deployed, I do not find that guards were present in numbers as high as Ms.

Grant stated.

[353] She said that she asked someone from Securiguard about why there were so many

guards present in the mall. She did not know his name, describing him as a “cute little

blonde guy”. She said that he told her the guards were to protect the mall from

unsavoury types and shoplifters. Ms. Grant said that she also raised the issue with

Henderson at a tenants’ meeting in April 2000. It was one of a number of tenants’

concerns discussed at that meeting; others included the incomplete state of the mall, the

failure to deliver on the developer’s promises of a prestigious, high-end mall, and the

inadequate number of customers. In that context, Ms. Grant said that security issues were

the least of their concerns. She said, however, that the concern was expressed that the

large numbers of guards, especially given their highly visible bright yellow jackets, were

an intimidating presence, which might intimidate their customers. She said that similar

issues were raised at subsequent meetings and in letters and conversations with Mr.

Dunn, the mall manager.

[354] Due to a number of factors, including the lack of customers, the store did not do

well. As a result, her daughter had to lay off her employees, and Ms. Grant ended up

working in the store five or six days a week.

[355] Ms. Grant testified about observations she made of the treatment of her customers

by Securiguard personnel. D’Vine Health specialized in products for cancer patients and

the terminally ill. As a result, the store had customers with HIV/AIDS and Hepatitis C

and other serious medical conditions. Some of them looked obviously ill. Ms. Grant

testified that every time someone came in who “didn’t fit a three-piece suit” two security

guards would “park themselves” outside the store while the customer was inside.

Sometimes this occurred on “Welfare Wednesday”, when poor customers would come in

to buy products; some of them may have had ripped clothing. On other occasions, Ms.

Grant said that guards would come into the store when someone was shopping who

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looked ill and ask if everything was alright. She would tell them it was, to which they

would respond politely.

[356] In particular, Ms. Grant testified about a specific customer, “Vera”, who was

subjected to treatment of this kind. Vera was a native woman who monthly bought a

product from D’Vine Health useful for arthritis and multiple sclerosis. When Vera came

to the store two guards would wait outside the store and leave when she left. Vera never

complained to her about this treatment, but it clearly disturbed Ms. Grant. Ms. Grant said

this did not happen with other customers. While I find that Ms. Grant exaggerated the

frequency of such events, I accept that the security guards did engage in such behaviour

on occasion, and in particular with Vera. It is consistent with Securiguard’s “walk and

talk” policy and the guards’ practice of following and monitoring closely those whom

they deemed to be “suspicious”. Such obviously ill people, particularly if they were also

Aboriginal, could well have been deemed to be “suspicious” or “borderline suspicious”

under Securiguard’s written and unwritten criteria.

[357] Ms. Grant gave evidence about an experience her late son-in-law, Darren, had at

the mall. He died in February 2001 from cancer. This incident occurred four or five

months before his death. Ms. Grant described him as looking very grey, not walking very

steadily due to the morphine he was taking, and he was using a cane. He had open sores

along his lips from the cancer treatments he had endured. Darren walked over from an

adjacent tower, and was told by a security guard not to come into the mall. According to

Ms. Grant, he said a few words to the guard, and continued on his way. Given that, due

to his death, Darren cannot testify, I am prepared to put some weight on this evidence. It

is consistent with Securiguard’s written and unwritten policies to deter “suspicious”

people from the mall. Given Ms. Grant’s description of Darren, he may have been

mistakenly identified as “stoned” or intoxicated, and he also had open sores on his face,

all of which would have been grounds for his ejection.

[358] Ms. Grant testified about experiences which an employee had who worked for

free in the store. His name was “Rich”. She described Rich as “looking Aboriginal” and

wearing “funky clothing”, such as baggy shirts and pants. She said that Rich was

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approached by guards on a number of occasions. She said that Rich found the guards’

questioning amusing and would just keep walking. Ms. Grant said that Rich has now

returned to Ontario. I place very little weight on this evidence, both because it is vague

and because no reason was given why Rich could not have testified himself.

[359] Ms. Grant testified that from the store she could observe guards stationed at the

south doors near Starbucks and at the washrooms. Generally, she said that people were

treated according to how they looked. If a person looked fine, nothing would be said to

them; if not, the guards would approach and speak to the person. From Ms. Grant’s

perspective, the guards’ conduct seemed to depend on whether the person fit the profile

of the kind of clientele which were wanted for the mall. I accept and rely on this

evidence.

[360] Ms. Grant also testified about observing security guards chasing, shoving and

pushing people. As she said, in some instances it may have been warranted, as she did

not know the circumstances. I therefore do not rely on this evidence.

[361] Ms. Grant also gave evidence with respect to an experience which her husband,

Bill Grant, had with Securiguard personnel. I deal with it in conjunction with Mr.

Grant’s evidence below.

P. Bill Grant

[362] Bill Grant is a 59 year old white man. He has multiple sclerosis, and as a result is

visually impaired and uses a wheelchair. He is retired.

[363] While Mr. Grant may have had a financial interest in D’Vine Health, his evidence

was not affected by the hostility towards Henderson which was demonstrated in Ms.

Grant’s evidence. I found him to be a reliable witness.

[364] Mr. Grant testified about the first time he went to the mall. It was for the opening

of D’Vine Health. He said that he entered the mall through the entrance besides

Starbucks. He was approached by two people. They asked him what he was doing there

in an intimidating tone of voice. When she saw what was happening, Ms. Grant rushed

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out of Starbucks and said, in what Mr. Grant characterized as a joking tone, “he’s with

me”.

[365] Mr. Grant wondered who these people were in their bright yellow jackets. His

wife told him they were security guards.

[366] Mr. Grant said he was taken aback by the experience. Ms. Grant confirmed that

he was upset, as was she. She could not understand why her husband had been

questioned. Mr. Grant said that he had never before been asked what he was doing in any

shopping mall. Neither had Ms. Grant, who used to work for a commercial mall

developer in Ontario.

[367] For the first six months that the store was in operation, Mr. Grant did not go to the

mall frequently. After that, he and his wife were forced to sell their home and moved

into an apartment in an adjoining building. At that point, he would go down everyday to

keep his wife company while she worked. Mr. Grant said that once a security guard got

to know him there would be no problem – they would simply say something like “hi, how

are you?”. But there was a lot of turnover, and new guards would again ask him who he

was and what he was doing.

[368] Mr. Grant also testified that the disabled washroom in the mall was consistently

kept locked. When he was visiting his wife in the store, he would have to use it

everyday, and would have to go to the management office or a security guard to get the

key. He asked a security guard why it was kept locked and was told it was because they

did not want undesirables in there. There was evidence from security personnel, in

particular Mr. Skead, which confirmed that security tried to keep the handicapped

washroom locked for this reason.

Q. Henry Charles

[369] Henry Charles, who is a member of the Musqueam band, testified on behalf of the

respondents. He testified that he, his Métis wife and his daughter (whose mother is a

member of the Burrard band, making their daughter, in his words, a “full-blood Indian”)

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had been to International Village on several occasions to go to the theatre and never had

any problems with mall security. On those occasions, they had driven to the mall, parked

in the underground parkade and taken the elevator up to the third floor. He was not sure

of the dates on which they had gone to Tinseltown.

[370] I accept the truthfulness of Mr. Charles’ evidence, but it is of little assistance to

me in resolving the matters in issue in this case. First, he was vague with respect to

specifics, especially dates, making it impossible for me to determine when these events

happened, and in particular if they happened while Securiguard was providing security

services. Second, he and his family did not go through the ground level entrances to the

mall, where the evidence established the majority of the problematic encounters between

guards and persons entering the mall occurred. Third, and most importantly, it is well-

established that the fact that one individual in a group may not suffer from discrimination

does not indicate that other members of that group were not discriminated against:

Janzen v. Platy Enterprises Ltd. (1989), 10 C.H.R.R. D/6205 (S.C.C.) and Brooks v.

Canada Safeway (1989), 10 C.H.R.R. D/6183 (S.C.C.).

[371] Mr. Charles and his family, who were affluent enough to be able to drive to

International Village to attend a movie, did not share the characteristics which appear to

have made other Aboriginal people and disabled people, particularly those living in the

Downtown Eastside, “undesirable” to mall security staff.

VII. The Security Guards’ Perspective and Practice

A. Introduction

[372] Three individuals who have worked as security guards at International Village

testified: Tyrone Power, Peter Clulow, and Jim Skead. All of these individuals either

were hired into supervisory positions or eventually moved into them. The vast majority

of the individuals who worked as security guards at International Village, and in

particular the front line security patrol officers, did not testify.

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[373] Two of the security personnel who testified were involved in the May 10 incident

with Ms. Radek. I dealt with their evidence about that incident in the course of making

my findings about it above at paras. 143-164 and 174-175. I do not deal with it again. In

this section, I deal generally with the security guards’ evidence about their work and

experiences at International Village. I also consider that evidence in relation to other

evidence I heard about security practices at International Village.

[374] In addition to the security personnel’s oral evidence, the Banned Books, which

contain records relating to individuals who were banned from International Village, and

the Security Occurrence Reports, which contains records of incidents involving security

personnel at the mall, were entered into evidence. I refer extensively to the information

contained in those documents in this section.

[375] From the evidence as a whole, it is clear that the security guards had a difficult

job. As I have already discussed, the owners of the International Village were trying to

create a high-end fashion, food and entertainment complex in the Downtown Eastside. In

furtherance of this objective, the security personnel were the frontline people charged

with the job of making sure that the “wrong” sort of people did not enter the mall, and

with removing them if they did enter or if other kinds of problems arose.

[376] Given the substantial discretion which the guards had in enforcing the

respondents’ written and unwritten policies, generalizing from what one of the three

security personnel who testified said they did to what the majority of other guards, who

did not testify, did, is fraught with difficulty. This is particularly true in light of the fact

that all three Securiguard personnel who testified occupied supervisory positions. As Mr.

Power testified in response to a question about whether he ever interrogated persons

entering the mall about where they were going, he never spoke to anyone like that, and he

did not think the supervisors did, but he could not comment on what any given guard

might say or think. Taken together with the Security Occurrence Reports, the Banned

Books, and the other witnesses’ evidence of security personnel’s behaviour, however, an

accurate picture of security practices at the mall can be obtained.

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[377] Mr. Power said that at the beginning of each shift there would be a meeting at

which the guards would be briefed on what had happened on the previous shift and given

instructions either by Mr. Dunn or Securiguard management. He said that policies would

be discussed, particularly if there were any amendments or concerns such as a guard

having been too stringent. He testified that guards were instructed to treat people with

“kid gloves”, as they would wish to be treated.

[378] The turnover rate among the security guards was very high. Mr. Power said that

because it was a “sensitive area”, he would ask for a certain, “respectable” type of guard

to be posted at the mall. According to Mr. Skead, it was a very hard site to work on, both

physically and psychologically. He said that the guards at International Village

experienced the “dark side of humanity”, the “dismal side of life”, with lots of sadness

and illness. Mr. Clulow testified that the turnover was quite high, and that each time a

new manager took over there would be changes and it would take some time to get a

stable staff. He said that, on average, guards worked there about six months.

B. Lack of Training

[379] The guards were given very little in the way of specific training to assist them in

their tasks. According to the evidence led in this hearing, anyone wishing to work as a

licensed security guard in British Columbia is required to complete Basic Security

Training I and II, either at the Justice Institute or through their employer. Each of those

courses takes 40 hours. According to Mr. Clulow, the first course includes general

principles, the law of private property, the use of force, the Charter of Rights and

Freedoms and arrest powers. The second course has “more of the same” and two days of

physical training. He also said that all Securiguard employees take SuperHost, which

consists of a couple of days’ training in customer service skills. He said that guards

could also take self-defence training on a voluntary basis.

[380] Additional site specific training was very limited for International Village:

perhaps a shift or two of training shadowing a more experienced guard and an

explanation of at least some of the site’s written and unwritten policies. Mr. Power said

that he was trained by Charles Gallagher, Securiguard’s then account manager, and Mark

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Shumacher, the outgoing site security manager. He said that he shadowed Mr.

Shumacher for perhaps a week, met with Mr. Dunn, the guards, and the tenants, and

talked over the site post orders and the types of people who were and were not permitted

entry. He said that generally new guards were given a 24 hour orientation, that they

would be shown the site post orders and have the site’s written and unwritten policies

explained to them, and they would be posted with a more senior guard for one week. Mr.

Clulow testified that “most” of the site-specific training occurred after he became the

supervisor in early 2001. That training consisted of an eight hour training day before

being posted, and subsequent training when they had “free” time. His testimony was

somewhat vague with respect to what the training consisted of: a manual, various policies

about what was expected, training with respect to normal activities at the mall, and what

he called “every major issue” – drugs, theft, trespassing. Mr. Skead testified that there

was more training in the past than there is now, and that training now consists of 12 hours

shadowing a more experienced guard. On balance, it would appear that on-site training

was minimal, and certainly it decreased over time. In this regard I rely on Mr. Clulow’s

evidence that one of the reasons the site post orders were amended was to make them

simpler and to reduce training time.

[381] The guards were given absolutely no training in a number of crucial areas. In

particular, they were not given any training in racism or race relations. All the security

personnel who testified were in agreement on this point.

[382] Nor were they given any training in disability-related issues such as the legal

requirement not to discriminate on the basis of disability; HIV/AIDs-related issues such

as distinguishing the symptoms of HIV/AIDs from those of injection drug use or accurate

information with respect to how HIV is transmitted; or information about how to

distinguish the symptoms of intoxication from diabetic shock, Parkinson’s disease,

multiple sclerosis or other medical conditions. In this connection, Mr. Skead’s evidence

about HIV was particularly revealing. He testified that the mall is in a “high infection

area” for HIV and other diseases. When asked if the guards tried to keep people with

HIV out, he agreed that they did, because it was a “family place”, and families would not

come in if “such people” were there. In reviewing the Banned Books, it is apparent that

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many “undesirables” were asked about their HIV status or whether they had Hepatitis C.

It is difficult to understand why this information would have been considered relevant,

other than as a result of fear of infection resulting from inadequate knowledge of how

these diseases may be transmitted and appropriate safeguards to prevent transmission. In

my view, it is apparent that many guards viewed people who were HIV positive, or

appeared to them to possibly be HIV positive, as being, for that reason, “undesirable”.

[383] Mr. Skead’s evidence about “junkies” was connected, and similarly revealing. He

said that he wished that people with open sores would not come and that he wished they

could remove them, “people living that lifestyle”. He said that he “didn’t want to get

infected”. He said that there was no training about contagious diseases, so he researched

the matter himself.

[384] The guards’ lack of knowledge about disabilities extended beyond HIV. In direct

examination, Mr. Clulow was asked if Mr. Gallagher provided any training about the

difference between the symptoms of diabetic shock and intoxication. In reply, he

testified that Mr. Gallagher did not do so, but that he did ask the guards to look for signs

of intoxication. Further, he said that he did not think it was possible to distinguish

between the symptoms of diabetic shock and intoxication. Similarly, Mr. Skead testified

that guards were not given any training in how to distinguish between people with HIV

and “junkies” or between intoxication and the symptoms of various disabilities. There

was evidence in this hearing that established that guards sometimes wrongly assumed that

people with medical conditions such as Parkinson’s disease or multiple sclerosis were

intoxicated or “stoned” and dealt with them on that basis.

[385] So far as racism is concerned, the security personnel who testified all said that

there was zero tolerance of racism. Mr. Clulow testified that Mr. Gallagher always talked

to guards to determine their attitudes and to train them in the importance of not having

preconceptions about people. But the details of the guards’ evidence, in several key

respects, did not bear out the reality of “zero tolerance”. First, as I have said, the guards

were not given any anti-racism training. Second, there was no written policy with respect

to anti-racism or any other human rights issues. Management appears to have made the

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assumption that because the guards were themselves ethnically diverse, they would not

themselves engage in racist behaviour. This was Mr. Power’s evidence, who testified

that due to the guards’ multi-ethnic make-up, it was “just accepted that it wouldn’t

happen”. This is a notoriously unsafe assumption, as human experience shows that the

fact that an individual may be a member of a group which has experienced discrimination

does not necessarily mean that that person will not themselves discriminate against

others.

[386] The evidence was also clear that security personnel were not generally aware of

the statutory public right of way through the mall, or how its terms and conditions

affected people’s right to pass through or be in the mall. This is a matter I dealt with in

greater detail above at paras. 95-96 in addressing the right of way.

C. Security Occurrence Reports

[387] Security Occurrence Reports were supposed to be completed accurately by the

guards to record any wrong doing. Mr. Power said they were kept in the course of

business for client purposes. Guards were given notebooks for this purpose, and that

either right away (in serious cases) or at the end of their shift, they were to fill out a

Report.

[388] Hundreds of Security Occurrence Reports were contained in the volumes entered

into evidence. The vast majority of them were not reviewed or referred to in the course

of the hearing. I have subsequently reviewed them in the course of preparing this

decision.

[389] It was clear from all of the evidence that not all incidents in which guards were

involved were recorded on Security Occurrence Reports. Mr. Skead testified that the vast

majority of the guards’ interactions with people were not recorded in the Security

Occurrence Reports, and that even incidents where policies were infringed were not

always recorded. Mr. Power testified that while guards were instructed and required to

do so, they were only “usually done.” He also testified that on average probably 2000-

2500 people came into the mall each day. On average, approximately 100 Security

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Occurrence Reports were completed each month. It is therefore obvious that the vast

majority of guards’ interactions with the public were not recorded on paper. They

therefore cannot be considered an exhaustive record.

[390] Mr. Power testified that he read the Security Occurrence Reports as they were

completed or the next day, and that he had probably read most of them. After he had read

them, Mr. Dunn could review them. There was a space on some of the Reports for the

times at which “Matt” and “Tyrone” were informed of the events noted. The Reports

then went into a folder in the Securiguard office across the street. Mr. Power himself

only completed a handful of them.

[391] Mr. Power testified that it was Mr. Clulow’s job to read all the Security

Occurrence Reports, although he could not say if he always did so. If they were severe

enough, they would discuss them.

[392] Mr. Clulow also wrote very few Security Occurrence Reports. He said the first

officer on the scene would usually write the report; as he was either in the CCTV room or

a supervisor for most of his employment at the mall, this was rarely him.

[393] According to Mr. Clulow, only supervisors read the Security Occurrence Reports

– security officers did not do so. This is interesting, in light of the evidence that one of

the criteria discussed for determining if a person was suspicious was their past behaviour.

If security officers did not read the Security Occurrence Reports one is left wondering

how they learned about an individual’s past behaviour, and how reliable that information

was.

[394] The Security Occurrence Reports provided space for the details of the incident in

question to be written down. Guards were to identify the incident by category and sub-

category. On reviewing the Reports, however, it became clear that these categories were

arbitrary and very nearly meaningless: the same kind of incident could be categorized as

“trespassing” or “unauthorized person” or “vagrant” or “suspicious person”.

[395] Guards were asked to give identifying information about the persons involved,

such as their height, weight, race and so forth. As I have already said, the space for

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“race” was often left blank. Names of the persons involved are almost never given. For

this reason, it is almost always impossible to attempt to match a Security Occurrence

Report to any given episode about which I heard testimony.

[396] It is also, in my view, impossible to perform any meaningful kind of statistical

analysis of the Reports for the purposes of attempting to determine the percentage of

them which deal with members of different races. Counsel for Ms. Radek and counsel

for Henderson both attempted to engage in such an analysis, and came up with quite

different results. For the period October 2000 to May 10, 2001, counsel for Ms. Radek

calculated that there were 858 persons recorded as having been removed. Of these, 109

were clearly identified as Aboriginal; 256 were of unknown race; and 545 were clearly

not Aboriginal. As I understand the calculation, the persons of unknown race were then

excluded, and the number of Aboriginal people was divided by the number of clearly not

Aboriginal people to arrive at a percentage of persons removed who were Aboriginal of

20%. Counsel for Henderson, by contrast, calculated that there were 927 people removed

from the mall in the same period. Of these, 92 were identified as Aboriginal. Counsel

for Henderson then calculated an Aboriginal removal rate of 9.92%.

[397] In my view, given the large number of persons whose race is not identified in the

reports, it is simply impossible to arrive at any meaningful statistic of how many of those

removed were Aboriginal. Further, there is no record of the racial makeup of the persons

attempting to enter the mall. When the fact that not all incidents were recorded in the

Reports is added, it becomes clear that the Security Occurrence Reports are useless for

statistical purposes. They are useful, however, for anecdotal evidence of the types of

incidents the guards dealt with, as well as their manner of addressing those incidents.

D. Problems and Responses

[398] According to the security personnel, they faced a number of major problems,

including vandalism, vagrants, drugs, including injection drug use in the bathrooms,

panhandling, people wheeling shopping carts full of recyclables through the mall,

intoxicated persons and shoplifting. The Banned Books and Security Occurrence Reports

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reflect almost all of these issues, as well as some others, some in substantially greater

measure than others.

[399] Security personnel used a number of techniques to try and deal with these issues.

Some of these were drawn from the site post orders; others were the result of oral

policies. Overall, it was clear that the guards had a substantial degree of discretion about

how to deal with the public and any problems that they might encounter. The site post

orders were described by Mr. Power as guidelines so the guards would know what to do,

and what to look for.

[400] Mr. Skead testified that the guards’ main task was to maintain the peace,

including filtering and screening those seeking to enter the mall. He said that guards had

to do a lot of screening, looking for people who looked like junkies and so forth. Mr.

Clulow testified that mall management instructed them to ensure that persons in the mall

were “behaving in a normal manner”; if they observed “unusual behaviour”, they were to

ask the person to leave. Similarly, Mr. Power testified that “persons who seemed out of

the ordinary” would be monitored; if they “looked like they were going to cause a

disturbance”, they would be removed. Mr. Power also testified that “vagrants”, whom he

defined as people who were “down and out”, really dirty or had offensive body odour,

were not to be allowed in. He also testified that mall management instructed them that

known drug users were not to be allowed in. Generally, “suspicious people” were to be

observed closely, and asked to leave if necessary. Mr. Power defined a “suspicious

person” as anyone who was a known user, a repeat shop lifter, a person who seemed out

of place, or who was sizing the place up rather than window shopping. He said that if

such a person looked like they were going to cause a disturbance, they would be

removed. Mr. Skead defined “suspicious” as a generic term referring to someone who

needs to be watched or monitored. I note that terms such as “normal”, “unusual” and

“suspicious” are vague, and necessarily given to subjective interpretations.

[401] Mr. Power denied that guards were instructed to keep people out on the basis that

they were not the type of clientele that the mall wanted. At the same time, he testified

that the reason the criteria contained in the March 2000 site post order were listed was

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that either a lot or most of the people who created a disturbance dressed, looked or

smelled that way. He said that, based on that, the criteria described who to look for, and

that the mall did not want these people in.

[402] Mr. Power also testified that, over time, he and Mr. Dunn came to realize that

some of the criteria needed to be amended. For example, a person could be wearing

ripped clothing because they were a construction worker. As a result, in their meetings,

guards were told to avoid using certain criteria, or that several criteria needed to be

present at once in order to remove a person. Thus, for example, a person who had both

open sores on their arms and matted hair, could be refused entry.

[403] Mr. Power was asked about what the reference to “zero tolerance” for suspicious

persons and vagrants meant. He said that the guards were told that users and panhandlers

were not to be allowed in, and that the guards, along with Mr. Dunn and the owners, did

their utmost to keep them out. On all of the evidence, it is clear that known drug users

would be removed from the mall, regardless of whether they were using or acting

“stoned” on that occasion. Similarly, known panhandlers would be removed, again

regardless of whether they were panhandling in the mall.

[404] Mr. Skead testified that the guards were instructed that the mall was to be

“family-oriented”. He said that anything that might interfere with that orientation would

be considered to be a concern. In light of the evidence that Aboriginal people in the

Downtown Eastside were likely to be older and single, and thus less likely to be moving

about in family groups, this evidence suggests that some Aboriginal people might have

been viewed as a threat to the mall’s family orientation.

[405] Security personnel posted at the entrances to the mall were to “meet and greet”

those entering. According to the guards, this was to be a friendly greeting, along the lines

of a wave or saying “hi, how are you?’ or “how can I help you?”. In the Security

Occurrence Reports guards report themselves using substantially more aggressive

language, such as: “Where are you going?”, “Are you just walking through the mall?”,

“Are you shopping today?”, “What’s your business in the mall?” and “Why are you in the

mall?”, amongst other questions. Mr. Skead admitted in cross-examination that guards

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were told to ask people where they were going by mall management, specifically by Mr.

Dunn and Mr. Le. Further, he said that mall management instructed them to ask people

to leave who did not have a legitimate purpose, specifically a store they were intending to

visit, to be in the mall. He said it was common at that time to deny access, and that

“shortcutting” was discouraged.

[406] The guards testified that they were to greet, if possible, all persons entering the

mall, but said that this was difficult to do if the mall was busy and a number of people

were entering at one time. Mr. Skead testified that he would greet a “blatantly possible

problem person”. Generally, however, whether people were greeted depended, he said,

on the mood and personality of the guard in question. Mr. Power denied that the meet

and greet policy was applied differently to different races. The guards said that they

would gauge a person’s attitude from how they responded to the “greeting”. If they

detected a bad attitude or determined that the person did not have what was deemed to be

a legitimate purpose for being in the mall, they would be refused entry, or be monitored

by CCTV or be followed closely.

[407] Sometimes guards would go outside the doors to “greet” an individual in order to

prevent them from entering the mall. Mr. Clulow said that guards would only do this if

someone had trespassed before, was observed engaging in criminal behaviour, or was

believed to be intoxicated or violent, either then or on a previous occasion. Ms. Radek

and Ms. Wolfe both testified that guards had approached them outside the mall, seeking

to prevent them from entering, yet there is absolutely no evidence that either of them met

any of the criteria identified by Mr. Power. I find that guards would sometimes prevent

people from entering the mall or ask them to leave simply because they were deemed

undesirable.

[408] Mr. Clulow said that guards determined who to greet simply on the basis of who

was closest, and denied that race played any role. This is inconsistent with the evidence

of able-bodied Caucasian witnesses who visited the mall who testified that they were

seldom greeted, if at all, and that when they were greeted, it was friendly. Aboriginal

witnesses testified to receiving a very different type of greeting, more in the nature of a

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demand or an interrogation, such as “where are you going?”. There was also evidence of

disabled people being similarly questioned. The Security Occurrence Reports suggest

that guards would “greet” persons whom they deemed “suspicious”, in order to determine

if they had what the guards considered to be a legitimate purpose in the mall. The

Security Occurrence Reports rarely explain why the person was identified as

“suspicious”.

[409] In one interesting example, a Security Occurrence Report does give some hint as

to why the person was deemed “suspicious”. In that Report, dated March 14, 2001, the

guard noted that “he observed a suspicious person who looked like a drug user.” The

person is a native male. The guard goes on to explain that he approached the person, and

asked him “what his business was in the mall.” The Report continues, “The suspicious

person was looking down while S/O Gill was asking questions, so S/O Gill asked the

person ‘to look at security when asking questions.’” The person complied, and the guard

observed that he had blood shot eyes, whereupon he escorted him out of the mall. The

actions of the guard described in this Report display a lack of sensitivity to cultural

differences in the way people respond to questions, including whether they make eye

contact or avert their gaze.

[410] If the “suspicious” person did not have what the guard accepted to be a legitimate

purpose, for example if they simply wanted to “cut through” the mall or use the

bathroom, they would be required to leave. Alternatively, if the person replied with

“attitude”, either refusing to answer the questions or questioning the guard’s cause for

asking the questions, they would be required to leave. A good example of this can be

found in a Security Occurrence Report dated March 4, 2001, in which a guard told an

Aboriginal man he could not walk through the mall with three plastic bags with

recyclables in them in his hands. The man asked what by law gave the guard the right to

deny him access, to which the guard responded that it was private property, so he had the

right to deny him access. On all of the evidence, I find that the meet and greet policy was

not applied equally to all people entering the mall. Rather, it was used differentially to

identify persons who should or should not be permitted entry.

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[411] It is interesting to note that the guards themselves, or at least some of them, were

somewhat uncomfortable with the meet and greet policy. Mr. Skead was clearly

uncomfortable with it and found it obtrusive. Mr. Clulow also testified that he would

probably feel defensive if he was greeted in the manner described by the Aboriginal

witnesses, and agreed that such “greetings” might cause a customer to react.

[412] Another unwritten policy was “walk and talk”. Mr. Skead said that it applied to

essentially anybody a guard saw whom they felt needed to be watched. They would be

“walked and talked”, meaning they would be escorted through the mall by a guard under

close supervision. He said that things like body language and dress could mark a person

out for this treatment. So too could the “certain way of walking” that “junkies” have, as

well as their characteristic facial lesions. When asked if the guards engaged in

“profiling”, he said that they “don’t really have profiling, but that certain body language,

ways of dress draw attention in terms of perceiving [them] to be criminal or in

contravention of policies.”

[413] Mr. Clulow denied that the guards had any instructions to or practice of

confronting people in order to escalate a situation or induce a disturbance. He did say

that a guard who greeted a person who declined to answer had a discretion whether to

follow that person. He said that guards would usually do so if they were not too busy in

order to determine their purpose in the mall. There was a significant body of evidence in

this case to the contrary. In my view, the May 10 incident with Ms. Radek is an example

of a guard closely following a person deemed “borderline suspicious” in an effort to

manufacture a basis for removing her from the mall. The Security Occurrence Reports

contain other examples of “suspicious” people being followed and questioned until they

responded with some anger, thereby giving the guard cause to require them to leave.

[414] As I have indicated, drug use, including both injection drug use and smoking

crack, especially in the washrooms, were areas of concern to mall management. In June

2001, Mr. Clulow testified that he found a person who had overdosed in a mall

washroom. He also testified about finding used needles in the washrooms; on one

occasion he found ten needles in one day. Mr. Clulow testified that the mall manager

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spoke to him about the problem of drug use in the washrooms and stressed to him that it

was unacceptable and that the guards needed to prevent it. At times, this concern led to

the guards closely monitoring the washrooms and persons using them. Mr. McCurdy and

Mr. Chevillard both testified about guards following them into the men’s room.

Evidence conflicted with respect to whether non-shoppers were allowed to use the

washrooms. Mr. Power testified that Mr. Dunn told him that the washrooms were not for

the public, and were only for customers. There are numerous examples of “suspicious”

people being told that the mall’s policy was that the bathrooms were for customers only,

and denied permission to use them. Mr. Clulow testified, on the other hand, that the

washrooms were available to anyone who was a “visitor” to the mall, but that if the

guards observed “unusual behaviour” or someone acting “suspiciously” they would ask

the person to leave and find a washroom somewhere else. I find that guards did tell

people they deemed to be “suspicious” that they could not use the washrooms if they

were not shopping in an effort to prevent undesirable people from being in the mall and

in an attempt to curb illegal drug use in the washrooms. For example, according to Mr.

Power, known drug users would be told they could not use the washrooms. Ms. Savage

testified about observing guards telling someone that he could not use the washroom.

Persons not considered “suspicious” would not be prevented from using the washrooms

regardless of whether they were shopping.

[415] Mr. Clulow denied that race or disability played any role in determining who was

permitted access to the mall. He said that the only grounds for determining access to the

mall were behaviour. The Security Occurrence Reports do not bear this claim out, as

there are examples of persons, such as those categorized as “vagrants”, being told they

cannot come into the mall, simply on the basis of their appearance.

[416] Mr. Clulow denied that Aboriginal people were interrogated or asked to show

their money. He denied that Aboriginal people were told that they had to go around the

mall. He said the only reason that would happen is if they had “been trespassed” (which I

take to mean banned) previously, in which case they would have to use the outside

entrances to Starbucks or McDonald’s. This is inconsistent with the direct evidence of

Aboriginal witnesses, including Ms. Radek, Ms. Wolfe, and Mr. Mack, who testified that

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they were asked to go around the mall. There was also hearsay evidence of other

Aboriginal people, such as Ms. McDougall, being told they had to go around the mall.

Mr. Clulow said that there would be a Security Occurrence Report if a person had “been

trespassed” before. There was no evidence of any of those individuals having “been

trespassed” before. In fact, the Security Occurrence Reports provide a great many

examples of people, including many Aboriginal people, being told they could not cut

through the mall. There are also a number of examples of guards going outside the mall

to stop people from coming in. For example, on February 21, 2001, a security guard

approached a native male who was walking towards the north doors “possibly under the

influence”. Again, whether people were told they could not cut through the mall or not

appears to have been based on whether they appeared “suspicious” to the guard at the

door.

[417] It is clear that the guards had substantial discretion in deciding how to deal with

particular situations. For example, guards could ask people to leave the mall or remove

them, without banning them from attending in future. According to Mr. Clulow, guards

were instructed to ask can salvagers not to look for cans in the mall, and to ask them to

leave, but that can salvagers were not banned for engaging in such behaviour. In fact, the

Banned Books contained records of people being banned for engaging in this and other

similar behaviour. In cross-examination, Mr. Clulow expanded on the grounds for

removal, referring to persons creating a disturbance, yelling, swearing loudly, becoming

aggressive or running away. Guards could also choose simply to monitor an individual.

For example, Mr. Power testified that if a person was intoxicated, the guards would

usually leave them alone and just keep an eye on them. If a person was screaming, the

guard would usually ask them to keep it down and let them walk through.

E. Bannings

[418] Guards could “ban” people from the mall, either for a set period of time or “for

life”. The guards who testified all attempted to suggest that very few people were ever

banned for life. Mr. Clulow testified that he never banned a person “for life”. He had

heard of it happening on another supervisor’s shift, but said that the site manager told

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them all not to ban people “for life”. Mr. Power testified that there were a couple of

people banned “for life”, and that after the guards were informed that they could not do

this, those bans were reduced to a year. In reviewing the Banned Books, however, I

observed that a great many people were banned for life, throughout the period covered by

the Banned Books. I noted more than 30 people banned for life, throughout 2000, 2001,

2002 and 2003. Mr. Power was identified as being involved in at least five of these life

time bans. One example occurred on June 20, 2001, when Mr. Power issued a lifetime

ban to an individual, described as an “I.V. drug user, dim-witted, HIV positive”, caught

shoplifting two protein bars from the 7-Eleven.

[419] Given that Securiguard’s own documents contradicted the guards’ evidence on

this point, I find the security guards’ evidence on this point unreliable. I find the security

guards’ attempts to downplay the prevalence of banning for life troubling. It has led me

to treat other aspects of their evidence, particularly where they attempted to portray their

actions in a more benign light, with caution.

[420] Persons who were banned were supposed to be included in the Banned Books,

which involved a written report being made by the security officer and signed by the

banned person and their picture being taken. Sometimes the person would be held for the

police. The evidence was clear, however, that guards would also sometimes verbally tell

a person they were banned, without this procedure being followed. Ms. Sterritt testified

about this happening to her. The Banned Books and Security Occurrence Reports both

refer to people having been verbally banned on previous occasions. It is impossible to

know precisely how often this occurred or the reasons for it, but it appears that verbal

bans were likely frequently used by guards as a more informal means of attempting to

keep undesirable persons off the site. For example, one person is stated in an

Undesirable Person Report as having “been verbally banned many times for verbally

abusive language and negative attitudes towards all guards”. Persons who had been

banned or “trespassed” would, if recognized by the guard at the door, not be allowed to

enter the building or would be removed if later observed inside.

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[421] Reasons for banning could vary; according to the guards, persons would be

banned for things like committing criminal activity in the mall such as shoplifting or drug

use on the premises, or for consistently breaking mall rules or for creating a disturbance.

Mr. Clulow referred to banning people for “bothering other visitors”.

[422] On reviewing the Banned Books, I noted people being banned for a wide variety

of stated reasons. The Undesirable Person Reports are numbered – there would appear to

be 394 persons recorded as having banned in the time period covered by the Books.

Shoplifting was the most frequent reason given for people being banned. Usually, these

people had stolen small food items from the 7-Eleven. There are also examples of people

stealing more valuable items from the higher end stores in the mall. There are also some

instances of people being banned for using stolen credit cards or similar property-related

offences.

[423] People were also frequently banned for being found using drugs in the mall,

usually, but not invariably, in the bathrooms. Sometimes they were banned simply for

being found with drugs or drug paraphernalia on their persons, with no indication that

they had been using in the mall. One woman was banned for picking at her open sores

with a needle in the bathroom. Indeed, it is apparent that some people were banned

simply for being perceived to be known drug users. In one Security Occurrence Report

filled out by Mr. Power, for example, he refers to the subject as “appear[ing] to be a user

of narcotics”. He quotes himself as having “informed the male he had better leave as

narcotics are something we like not to see here.” It is significant, in my view, that people

who were being dealt with by security for matters such as shoplifting a can of pop from

the 7-Eleven would be questioned as to their HIV status and drug use. People are noted

to be “addicts” or “heroin users” or “junkies” or even “on methadone”. Again, this is the

case even where drug use has nothing to do with why security was involved with the

person in the first place. Overall, it is clear to me that security attempted to identify if

people were injection drug users, and to keep persons so identified off the premises.

[424] There are also a few examples of people being banned for drug dealing in the

vicinity of the mall.

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[425] There are comparatively few reports of people being banned for being intoxicated.

More often, it would appear, intoxicated people would be allowed to move through the

mall as long as they did not cause a problem or would be removed, without being banned

from returning. This was one of many areas in which guards had a large measure of

discretion.

[426] There are a few examples of people being banned for sleeping in the mall. This is

sometimes referred to in connection with drug use.

[427] There are some reports of people being banned for “bothering other customers”,

or being “disorderly”, although it is not always specified in what way. One such person

is identified as “likely a prostitute”. There are also a few examples of people being

banned for being verbally abusive or making threats to or, in a few instances, assaulting

security staff.

[428] The reasons given for banning some people are vague or non-existent. One

example of this is a young couple banned on August 14, 2001. The incident is described

as follows: “Both regular patrons of the shopping centre usually just passing through.

Observed in handicap washroom suspected of drug use. No drugs found. Both male and

female were banned for public order offence for one (1) year.” The male is described as

“missing teeth/native male unco-operative!”.

[429] Some bannings seem to have occurred solely or predominantly because of the

way a person reacted after being approached by security, with no reason being given for

why security approached the person in the first place. In one case, a person was sitting

outside the northeast entrance to the mall, and was asked to leave for no specified reason.

He refused, and the matter escalated to the police being called and the man being banned.

In another, a man is described as becoming “verbally abusive towards a [security guard]

when approached with a friendly greeting.” Another person, described as “autistic” and

“dangerous”, is listed as banned, but no reason is given. Another person, a native man in

a wheelchair, is described as being intoxicated, and using foul language and spitting after

being asked to leave.

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[430] A number of persons banned are described as being “slow-witted” or “dim-

witted”. Of the four I identified who were described in this way, three were given

lifetime bans.

[431] There are a few reports of people being banned for vandalism, or carrying cans of

spray paint, or attempting to break into cars. There are some reports of people being

banned for going through garbage or ashtrays in or outside of the mall, whether to pick

up recyclables, cigarette butts or food to eat. More often, people engaging in such

behaviour were ejected, without being banned, unless they were repeat “offenders”.

There are a few reports of people being banned for panhandling in the mall. There are

also some reports of people being banned for being “known panhandlers”, although they

are not identified as panhandling in the mall. There are a few examples of people being

banned for public nudity or indecent behaviour. One person was given a lifetime ban for

refusing to put out a cigarette and displaying “bad attitude”.

[432] Mr. Clulow said that probably most of the people banned were white. I cannot

determine from reviewing the Banned Books the racial identity of most of the persons in

question. Sometimes their apparent race is noted on the Undesirable Person Report, but

unlike on the Security Occurrence Reports, there is no specific space for noting the

subject’s race. Most Undesirable Person Reports have pictures attached, but not all. The

race of the people photographed is not always apparent. I did identify people who

appeared to be white, Asian, Black and native being banned.

VIII.Henderson’s Role

[433] Two persons employed with Henderson testified: these were Allen Lai, the

President of Henderson Development Canada Ltd., and Louie Molnar, who is now the

mall manager for International Village. Previously, Mr. Molnar was employed by

Securiguard as an Accounts Manager with responsibility for International Village. Other

witnesses, in particular, Mr. Skead, Mr. Clulow and Mr. Power, also testified about

Henderson’s role. Matt Dunn, who was the mall manager throughout most of the period

in issue in these proceedings, is no longer with Henderson, and did not testify.

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[434] As explained by Mr. Lai, Henderson was the developer and is the owner of the

International Village complex, which includes both the International Village mall and the

neighbouring Paris Place, in which the T&T Supermarket is located. Henderson has a

number of other properties, including ones in Coquitlam, Surrey and Toronto. Different

Henderson Vice Presidents have responsibility for each of those properties. Mr. Lai

confirmed that the International Village mall began to open in December 1999, with the

opening of the theatre, while the mall was still under construction, and that stores

gradually opened in the following months.

[435] Mr. Lai testified that Henderson’s mandate to Securiguard was to ensure a safe

environment for the mall’s tenants and shoppers. It was clear, however, on all of Mr.

Lai’s evidence, that he had very little knowledge about the operations of the mall,

security practices at the mall or the other matters in issue in this complaint. He testified,

and I accept, that primary responsibility for these matters lay with Mr. Dunn, the mall

manager, and to a certain extent with Gary Wong, to whom Mr. Dunn reported. Mr.

Wong was the Vice President, Finance and Administration.

[436] For example, Mr. Lai testified that he was unaware of any complaints about mall

security until he received the letter from the Carnegie Community Centre Association

dated October 23, 2001. He had not seen or been made aware of the articles and letters in

the Westender prior to that date. In fact, he did not see them until after the present

complaint was initiated. On receiving the letter from the Carnegie Association, he

referred it to Mr. Wong to look into, in association with Mr. Dunn. It was Mr. Dunn who

signed the November 22, 2001 letter in reply. Mr. Lai testified that, with the exception of

the present complaint, he never received or heard of any other complaints about racial

discrimination after that time. He said the mall manager was responsible for dealing with

this human rights complaint. He was not familiar with any internal investigation that

might have been done with respect to it.

[437] Similarly, Mr. Lai testified that he had never seen either of the site post orders in

evidence in this hearing. He testified that he did not deal with security issues at all, that

that was the responsibility of Securiguard, who worked with the mall manager to develop

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security policy. He testified that he never gave Mr. Dunn any instructions with respect to

how persons entering the mall were to be screened. He was adamant that that was Mr.

Dunn’s job as mall management. This is consistent with the evidence of Mr. Skead, Mr.

Clulow and Mr. Power, all of whom testified about receiving instructions from Mr. Dunn.

Mr. Lai testified that Mr. Wong was the person in the office who worked closely with

Mr. Dunn.

[438] Mr. Lai testified that he was generally aware of the statutory right of way through

the mall, but he was not involved in its negotiations, nor familiar with its details. He did

understand that it provided for a public easement preserving the old railway right of way

through the mall, and that it was supposed to be open to the public. He did not think that

he supplied a copy of the right of way to Mr. Dunn.

[439] One area in which Mr. Lai had some involvement was in dealing with tenant

concerns. He was aware that business in the mall was slow and that tenants were leaving,

and took steps, through his subordinates, to try to stabilize the situation and preserve

tenants. He did not, however, attend any tenant meetings himself, and it would appear

that he relied on what his subordinates told him were the tenants’ concerns. He testified

that those concerns were not so much with respect to security, but were more to do with

financial terms, with the tenants asking for concessions with respect to their terms of their

leases.

[440] Mr. Molnar was employed as an Account Manager for Securiguard with

responsibility for International Village from in or around October 2001 to August 2002.

He had substantial previous experience in the security industry. As a Securiguard

Accounts Manager, Mr. Molnar was responsible for several accounts, including

International Village. In that position, he attended the mall several times a week, where

he would meet with security personnel and mall management to discuss issues. He

testified that he had no involvement in the creation of the second site post order which

occurred during this period.

[441] In August 2002, following Mr. Dunn’s resignation, he was hired by Henderson to

be the mall manager. He continued to be in that position when he testified.

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[442] Mr. Molnar testified that he was involved in the decision to put the security

contract out for tender that resulted in En Guard obtaining the contract in June 2003. He

said that after he became mall manager, he was told that all contracts should be put out to

tender every three years. On reviewing the proposals submitted, En Guard was chosen

for two reasons: one, they were considerably cheaper, which was important due to

budgetary restraints, and two, the guards would be paid more money. On being asked

why the second factor was important, Mr. Molnar testified that it would be “nice” for the

guards, and be a motivator for them. He did not say what it would motivate them to do.

He denied that any “negative factors” played a role in the decision to hire En Guard.

[443] As mall manager, Mr. Molnar testified that he was not directly responsible for

providing on-site training to security guards; that was the responsibility of the security

company’s site security manager. He was, however, responsible for conveying mall

management’s general approach to customers and tenants. Mr. Molnar testified that since

he has been the mall manager that policy has been to maintain an open door policy, that

the mall is a public place from which people can come and go freely. Security are to get

involved if they notice an infraction, are to patrol, and to keep an eye on the mall. He

denied that race has anything to do with how the guards are to go about their duties. He

testified that Henderson has “zero tolerance” to racism.

[444] Mr. Molnar testified that he had not seen, and was not familiar with, the

pedestrian right of way through the mall. He testified that the mall is private property,

but that a lot of people use it as a shortcut, and that they were not obstructed from doing

so.

[445] Mr. Molnar testified that he was aware of one complaint of racism. He said that

one person came to him at Chinese New Year to complain about what a guard had said to

her about an event. He said that the guard in question was temporary, and that when the

event was over, the guard was relocated. He did not know what En Guard did about the

matter with the guard thereafter.

[446] Mr. Molnar testified that the second site post order is no longer in force because

Securiguard is no longer working at the mall. He said that usually the site security

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manager works with the client to make changes to the security company’s generic post

orders.

[447] Mr. Molnar testified about a nearly complete lack of knowledge of any public

debate, newspaper articles or public protests about security practices at the mall. This is

inconsistent with Mr. Clulow’s evidence that he told Mr. Molnar about the Westender

articles while Mr. Molnar was the Accounts Manager. I prefer Mr. Clulow’s more

detailed evidence on this point. In my view, in his evidence Mr. Molnar underplayed his

knowledge of the controversies surrounding security practices at the mall, controversies

which given his dual role and fairly lengthy involvement at the site he was particularly

well-situated to be aware of.

[448] Overall, the evidence established that while Securiguard personnel had front-line

responsibility for dealing with security at International Village, Henderson worked

closely with Securiguard in establishing overall policy and overseeing day-to-day

operations. Henderson’s involvement in drafting the site post orders, especially the

second one, was clear. Henderson’s involvement in day-to-day operations was clear from

the evidence of the security guards who referred to receiving instructions from Mr. Dunn

on a day-to-day basis, and reporting to both him and Mr. Le about security issues. Mr.

Dunn’s active involvement was also demonstrated in the letters he wrote to the

Westender and the Carnegie Community Centre Association. It was also evident in some

of the Undesirable Person Reports, in which he is referred to being involved in particular

security incidents. On all of the evidence, any discrimination which may have occurred

as a result of security practices at International Village would be the joint responsibility

of Henderson and Securiguard. Neither Securiguard nor Henderson made any argument

to the contrary.

IX. Later Changes in Policies and Procedures

[449] As I have said, En Guard won the contract to provide security services for

International Village in June 2003. Mr. Skead is now in charge of security at the mall.

There are now far fewer security guards on site than there were previously.

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[450] En Guard’s Standing Orders for International Village mall, which bore a revision

date of June 30, 2003, were entered into evidence. Mr. Skead’s evidence about them left

it unclear whether they were up-to-date and in force. Mr. Skead gave some helpful

evidence about the procedures currently in place in the mall. For example, he said that he

has abolished the “meet and greet” policy, because he found it overly intrusive. He has

tried to eliminate unnecessary confrontation with people coming into the mall. As a

result, people are no longer told that they cannot use the mall as a shortcut.

[451] Ms. Wolfe testified that the security personnel who are now present are better in

that they do not push and shove people like they used to. Many Aboriginal witnesses

testified that they now try to avoid going to International Village due to their experiences

there. This included: Ms. Radek, Mr. Chevillard, Mr. Mack and Ms. Wagner.

[452] Undesirable Person Reports for the first six months or so after En Guard took over

security at the mall were also filed. They contain very little or no detail about why the

people in question were banned.

[453] Overall, while it would appear that the security situation at International Village

has improved, the evidence was somewhat inconclusive with respect to current practices

and procedures.

X. Analysis – the Individual Aspect of the Complaint

[454] Ms. Radek alleges that she was discriminated against on the basis of her race,

colour, ancestry and disability on May 10, 2001. She alleges that she was discriminated

against in respect of a service customarily available to the public in how she was treated

by the security guards employed by Securiguard at International Village. The relevant

provision is s. 8 of the Code, which provides as follows:

8. (1) A person must not, without a bona fide and reasonable justification,

(a) deny to a person or class of persons any accommodation,

service or facility customarily available to the public, or

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(b) discriminate against a person or class of persons regarding any

accommodation, service or facility customarily available to the

public

because of the race, colour, ancestry, place of origin, religion, marital

status, family status, physical or mental disability, sex or sexual

orientation of that person or class of persons.

[455] No party disputed the characterization of the area of alleged discrimination as a

“service”, although, in my view, it would also be possible to characterize the relevant

area as a “facility”. As no party raised any question with respect to this issue, and as

nothing turns on whether the area is characterized as a “service” or a “facility”, I do not

consider it further.

A. What is the Applicable Test for Individual Discrimination?

[456] An issue has been raised in the human rights case law in this province in the last

several years as to what is required to establish a prima facie case of discrimination.

Reduced to its simplest terms, that issue has been whether the analysis employed by the

Supreme Court of Canada in a case under s. 15 of the Canadian Charter of Rights and

Freedoms, Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R.

497, must be employed in determining whether there has been discrimination contrary to

the Code: see, for example, Vancouver Rape Relief Society v. Nixon et al., 2003 BCSC

1936. In Nixon, the British Columbia Supreme Court held that the decision of the British

Columbia Court of Appeal in British Columbia Government and Service Employees’

Union v. British Columbia (Public Service Employee Relations Commission), 2002

BCCA 476 (“Reaney”), required the Tribunal to employ the Law analytical framework in

determining whether discrimination has been proven under the Code.

[457] The law is clear that the legal burden rests on the complainant to establish a prima

facie case of discrimination. As established by the Supreme Court in Ontario Human

Rights Commission and O’Malley v. Simpsons-Sears Limited, [1985] 2 S.C.R. 526, a

prima facie case of discrimination is one which covers the allegations made and which, if

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the allegations are believed, is sufficient to justify a finding in the complainant’s favour

absent an answer or justification from the respondent: at p. 558.

[458] Prior to the decision of the British Columbia Supreme Court in Nixon, it was well-

established that, in order to establish a prima facie case of discrimination in relation to a

service under the Code, a complainant must prove the following, on a balance of

probabilities:

(a) that she is a member of one or more of the protected groups against

whom discrimination is prohibited by the Code;

(b) that a service was denied or that she was discriminated against

(sometimes referred to as “differential treatment” in order to

distinguish it from the ultimate finding of discrimination) in relation

to a service. As stated by the Tribunal in Waters v. BC Medical

Services Plan, 2003 BCHRT 13, in order for a finding of

discrimination to be made, the denial or differential treatment must

have some sort of adverse effect on the complainant: at para. 130.;

and

(c) membership in the protected group or groups was a factor in the

denial or discrimination.

[459] Once a complainant has established the first two elements, that is that she is a

member of a protected group or groups and that she received differential treatment with

respect to a service customarily available to the public, the evidentiary burden may shift

to the respondent to show that membership in the protected group or groups was not a

factor in the differential treatment: see, for example, Friday v. Westfair Foods Ltd.,

infra, at para. 33. That is because, having established the first two elements, the

inference may reasonably arise that membership in the protected group or groups was a

factor in the differential treatment, leaving it to the respondent to rebut that inference by

showing that it had a rational and credible justification for its conduct: see, for example,

Johnson v. Halifax Regional Police Service, infra, at para. 8. At all points, however, the

legal burden remains on the complainant to establish a prima facie case of discrimination.

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If she does that, the legal burden shifts to the respondent to establish a defence by

showing that it had a bona fide and reasonable justification for its prima facie

discriminatory conduct.

[460] At the risk of gross over-simplification, the chief significance of employing the

Law analytical framework is that the complainant would be required, in addition, to

establish that the allegedly discriminatory conduct impugned her human dignity. In view

of the fact that the traditional test requires the complainant to show some sort of adverse

effect as a result of the differential treatment, it is questionable whether the application of

the Law analytical framework really adds anything, in substance, to the elements of the

traditional test.

[461] The question of whether the application of the Law analytical framework is

appropriate or necessary in order to find discrimination under the Code is an interesting

and important one. There are a number of cases currently before the British Columbia

courts in which this issue is being argued. Nixon, for example, is currently on appeal to

the British Columbia Court of Appeal.

[462] As interesting and important as that issue is, it is not one which I need decide in

this case. First, I note that no party before me argued that I should employ the Law

analytical framework. All parties proceeded on the basis that the traditional prima facie

test was applicable. Second, and in any event, it is my view that, on the facts of this case,

it makes no difference whether the traditional prima facie analysis or the Law analytical

framework is employed. For the reasons that follow, under any potentially applicable

test, Ms. Radek has established that she was discriminated against on the basis of her

race, colour, ancestry and disability.

B. Was Ms. Radek Discriminated Against on May 10, 2001?

1. THE PRIMA FACIE ANALYSIS

[463] Ms. Radek has alleged discrimination on the basis of a number of intersecting

grounds: race, colour, ancestry and disability. She is a middle-aged Aboriginal woman

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with a disability. She is multiply disadvantaged on a number of grounds protected by the

Code. These grounds cannot be separated out and parsed on an individual basis. Ms.

Radek is an integrated person, with a number of characteristics, some of them protected

under the Code, all of which are alleged to have been factors in how she was treated on

May 10. It is Ms. Radek who went through the events of that day, not a number of

disembodied and distinct grounds. Ms. Radek’s particulars of allegation reflect this

reality in her allegation that she was discriminated against “because of the way I look”.

The way a person looks is the result of a complex combination of many factors.

[464] The interrelationship between a number of intersecting grounds of discrimination

is sometimes described as “intersectionality”. The concept of intersectionality has been

discussed in a number of recent decisions, including: Morrison v. Motsewetsho (2003),

48 C.H.R.R. D/51 (Ont. H.R.T.), Comeau v. Cote, [2003] BCHRT 32, and Baylis-

Flannery v. DeWilde (No. 2) (2003), 48 C.H.R.R. D/197 (Ont. H.R.T.). As described in

Baylis-Flannery, “[a]n intersectional analysis of discrimination is a fact-driven exercise

that assesses the disparate relevancy and impact of the possibility of compound

discrimination”: at para. 143. Speaking there in a case of sexual harassment against

against a Black woman, the Tribunal stated that an awareness of the effect of compound

discrimination is necessary in order to avoid:

reliance on a single axis analysis where multiple grounds of discrimination

are found, [which] tends to minimize or even obliterate the impact of

racial discrimination on women of colour who have been discriminated

against on other grounds, rather than recognize the possibility of the

compound discrimination that may have occurred. (at para. 144)

[465] The same could be said in the present case with respect to race, colour, ancestry

and disability. While the primary focus of Ms. Radek’s individual complaint is her race,

colour and ancestry, the analysis of those grounds must not ignore her disability, and the

possibility of the compound discrimination which may have occurred.

[466] What were the operative factors that day? Ms. Radek is identifiably Aboriginal.

She was identified as such by all three security guards she dealt with that day, as well as

by the two police officers later called to the scene. She was walking across the street to

the mall from her home at Vancouver Native Housing, a facility for hard-to-house

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Aboriginal people. I am satisfied that Ms. Hayer, the guard who initially dealt with Ms.

Radek and Ms. Wolfe at the Pender Street entrance to the mall, was aware of where Ms.

Radek was coming from. Ms. Radek is also disabled as a result of the amputation of her

leg. It causes her mobility problems. Ms. Radek testified, and I accept, that on May 10

she was limping as a result of her disability. Ms. Hayer would have had ample time to

observe Ms. Radek’s limp as she proceeded across Pender Street and into the mall.

[467] Ms. Radek is also economically disadvantaged. She has a limited income. She

lives “on disability” and required subsidized housing. She lives in the Downtown

Eastside.

Poverty and economic circumstances are not prohibited grounds of

discrimination under the Code. Nonetheless, Ms. Radek’s economic circumstances were

part of who she was and how she presented on May 10. They are integrally interrelated

with Ms. Radek’s identity as an Aboriginal, disabled woman.

[468] Ms. Radek’s membership in groups protected by the Code is incontrovertible.

[469] I turn now to the question of whether Ms. Radek was denied a service or

otherwise treated differently on May 10 with respect to a service customarily available to

the public. By this, I mean was she treated differently than other people who do not share

her characteristics, and did that different treatment have an adverse effect upon her. In

my view, clearly she was. It will be recalled that on that day she and her friend were

attempting to walk through the International Village mall on their way to have a coffee at

a store in that mall, Starbucks. I have found that they were rudely questioned by Ms.

Hayer as to their purpose for being in the mall, were closely followed by Ms. Hayer, and

when they objected to her rude and demanding behaviour, were told by her that they had

to leave the mall. Ms. Radek and Ms. Wolfe stood up for themselves and refused to

leave. Mr. Clulow, the shift supervisor, and Mr. Power, the site security manager,

arrived, and repeatedly told them that they had to leave the mall. At two points, Mr.

Clulow touched Ms. Radek without her consent as she tried to pass him and continue on

her way to Starbucks. Ultimately, Ms. Radek and Ms. Wolfe complied with the security

staff’s demands that they leave.

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[470] I do not consider this to be a normal experience for a person attempting to walk

through a shopping mall to patronize one of the stores in that mall. In making this

assessment, it is impossible to ignore one’s own experiences of going into shopping

malls. This is appropriate. As the Board of Inquiry noted in Johnson, infra:

In order to consider if differential treatment has occurred, the board must

necessarily hypothesize about how events would have unfolded if the

driver and passenger of the vehicle had been white rather than black …

… In deciding whether there has been a prima facie case of differential

treatment, a board of inquiry must try to establish how events normally

unfold in a given situation. Deviations from normal practice and evidence

of discourtesy or intransigence are grounds for finding differential

treatment. I find it difficult to imagine that these events would have

unfolded the same way if a white driver from Texas had been involved in

this stop…. (at paras. 51 and 57)

[471] Similarly, in the present case, I find it difficult to imagine that events would have

unfolded in the same way if Ms. Radek had been white. It is worthwhile noting that

when Ms. Radek spoke to Constable Bellia that day, that was her expressed opinion:

“this would not be happening to me if I was white.” The discourtesy and the

intransigence of the security guards she dealt with are grounds for finding differential

treatment. Indeed, the evidence in this case was clear that not all persons attempting to

enter the mall were subjected to the harsh and intrusive questioning which Ms. Radek and

Ms. Wolfe endured, not only on May 10, but on many previous occasions. A shopping

mall whose security staff did treat all customers and potential customers in this way

would soon be out of business.

[472] There is absolutely no dispute in the evidence that Ms. Radek and Ms. Wolfe

were on their way that day to buy a coffee at a mall outlet. To treat a mall customer in

this manner is clearly to treat them differently than others in relation to a service

customarily available to the public.

[473] Even had that not been the case, and had Ms. Radek and Ms. Wolfe merely been

passing through the mall, the guards’ conduct would have constituted differential and

adverse treatment. In this regard, the statutory right of way is significant, as it requires

the respondents “to permit all members of the public at their will and pleasure to pass and

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repass along and across the Pedestrian Walkway SRW Area during the normal operating

hours of the Lands”. In the circumstances of this case, the statutory right of way serves

to help define the nature of the service, accommodation or facility customarily available

to the public, and in particular, to establish it to include the right to pass and repass

through the mall, unmolested and without harassment. Ms. Radek and Ms. Wolfe were

not permitted to do so, when other members of the public were. That is sufficient to

establish a denial of, or differential treatment in relation to, a service customarily

available to the public.

[474] I now consider whether Ms. Radek’s status as an Aboriginal, disabled woman was

a factor in the adverse treatment she suffered on May 10. In considering this question it

is essential to note that there is no requirement that Ms. Radek establish that the

respondents intended to discriminate against her on a ground prohibited under the Code.

This principle is enshrined in s. 2 of the Code, which provides: “Discrimination in

contravention of this Code does not require an intention to contravene this Code”.

Rather, it is sufficient if the prohibited ground or grounds were a factor in the

discriminatory conduct.

[475] This principle is particularly important in cases of alleged racial discrimination.

This point was emphasized in a recent decision of the Ontario Divisional Court, in which

the Court overturned an Ontario Human Rights Tribunal decision in which a complaint of

racial discrimination in employment had been dismissed on the basis that the termination

of an employee was not motivated by race: Smith v. Ontario (Human Rights

Commission), [2005] O.J. No. 377. As the Court said:

The basis for requiring that race be only a factor in the termination is the

recognized difficulty in proving allegations of race discrimination by way

of direct evidence. As was noted in Basi v. Canadian National Railway

Co. (No. 1) (1988), 9 C.H.R.R. D/5029 (C.H.R.T.) at para. 38481:

“Discrimination is not a practice which one would expect to see displayed

overtly. In fact, rarely are there cases where one can show by direct

evidence that discrimination is purposely practiced.”

It may also be helpful to bear in mind that the Code is remedial legislation,

aimed at remedying the effects of discrimination, not on punishing the

individuals involved in discriminatory practices. It is not the motivation

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or knowledge of the employer that is in issue; it is the effect of the

discrimination on the complainant…. (at paras. 9-10)

[476] The decision of the Nova Scotia Board of Inquiry in Johnson v. Halifax Regional

Police Service (2003), 48 C.H.R.R. D/307, is also of substantial assistance on the issue of

how allegations of discrimination, in particular racial discrimination, are to be proven.

Johnson was a case in which the complainant, a Black man, alleged that he was the

victim of racial profiling on the part of the Halifax Regional Police Service and the

particular police officer who stopped him while driving and wrongfully seized his car.

The Board of Inquiry said:

The burden of proof is such cases has been discussed many times. The

complainant must establish a prima facie case of adverse treatment which,

it can reasonably be inferred, arose because of race. The cases speak of

race being an “operative” element in the conduct alleged to be

discriminatory; it need not be the main or major cause of the adverse

treatment … The burden then shifts to the respondent to demonstrate a

rational and credible justification for their conduct. The complainant may

then try to show that such justifications are mere pretexts or veils for

conduct which is actually discriminatory. In most cases, circumstantial

evidence and inference are heavily relied upon as there is seldom direct

evidence of discriminatory conduct…

A recent decision of the Ontario Court of Appeal which raised the issue of

racial profiling by the police has made it clear that discriminatory acts by

the police (or anyone) can arise from a process of subconscious

stereotyping as well as from conscious decisions. Thus I must be alert at

all stages of the inquiry for evidence from which such stereotyping might

be inferred…. (at paras. 8-9)

[477] The decision of the Ontario Court of Appeal referred to in Johnson is R. v. Brown,

[2003] 64 O.R. (3d) 161, which involved a young Black man accused of driving while

over the legal limit for alcohol. He alleged that he was the victim of racial profiling by

the police whom, he said, stopped him because he was a young Black male driving an

expensive car. On that basis, he argued that the evidence against him ought to be

excluded under ss. 9 and 24(2) of the Canadian Charter of Rights and Freedoms. At

trial, Mr. Brown’s argument was rejected. He appealed that decision to a summary

conviction appeal court judge, who overturned his conviction on the basis that the trial

judge’s conduct gave rise to a reasonable apprehension of bias. The Crown appealed that

decision to the Court of Appeal, which dismissed the appeal on the basis that there was a

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reasonable apprehension of bias on the trial judge’s part. In the course of its judgment,

the Court made a number of comments about the nature of racial profiling. It said:

A racial profiling claim could rarely be proven by direct evidence. This

would involve an admission by a police officer that he or she was

influenced by racial stereotypes in the exercise of his or discretion to stop

a motorist. Accordingly, if racial profiling is to be proven it must be done

by inference from circumstantial evidence. (at para. 44)

[478] Later, the Court commented on the trial judge’s remarks that Mr. Brown’s

accusations were “really quite nasty, malicious, potentially, accusations based on, it

seems to me, nothing...”, as “arguably show[ing] a failure to appreciate that racial

profiling can be a subconscious factor impacting on the exercise of a discretionary power

in a multicultural society”: at para. 81.

[479] The decisions in Smith, Brown and Johnson echo in many respects the recent

decision of the British Columbia Supreme Court in Troy v. Kemmir Enterprises Inc.,

2003 BCSC 1947. In that case, the Court rejected an application to quash the decision of

the British Columbia Human Rights Commission to refer a complaint of racial

discrimination to the Tribunal for hearing. The complainant, a Black man, alleged that he

had been discriminated against on the basis of his race when a gas station attendant called

the police due to his allegedly suspicious behaviour at that gas station. Mr. Troy argued

that he had been the victim of racial stereotyping. The respondent gas station argued

before the Court that discrimination had to be conscious on the part of the gas station

attendant and a motivating factor in her call to the police. The Court unequivocally

rejected that argument, relying on the decision of the Supreme Court of Canada in R. v.

Williams, [1998] 1 S.C.R. 1128. I find it helpful to reproduce the passage which the

Court in Troy referred to in this connection:

In R. v. Williams, [1998] 1 S.C.R. 1128, McLachlin J. (as she then was)

commented on the insidious nature of racism, and stated at p. 1142-3:

To suggest that all persons who possess racial prejudices will erase

those prejudices from the mind when serving as jurors is to

underestimate the insidious nature of racial prejudice and the

stereotyping that underlies it. As Vidmar, supra, [Vidmar, Neil.

"Pretrial prejudice in Canada: a comparative perspective on the

criminal jury" (1996), 79 Judicature 249] points out, racial prejudice

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interfering with jurors' impartiality is a form of discrimination. It

involves making distinctions on the basis of class or category

without regard to individual merit. It rests on preconceptions and

unchallenged assumptions that unconsciously shape the daily

behaviour of individuals. Buried deep in the human psyche, these

preconceptions cannot be easily and effectively identified and set

aside, even if one wishes to do so. For this reason, it cannot be

assumed that judicial directions to act impartially will always

effectively counter racial prejudice: see Johnson, supra. Doherty

J.A. recognized this in Parks, supra, at p. 371:

In deciding whether the post-jury selection safeguards

against partiality provide a reliable antidote to racial

bias, the nature of that bias must be emphasized. For

some people, anti-black biases rest on unstated and

unchallenged assumptions learned over a lifetime.

Those assumptions shape the daily behaviour of

individuals, often without any conscious reference to

them. In my opinion, attitudes which are engrained in

an individual's subconscious, and reflected in both

individual and institutional conduct within the

community, will prove more resistant to judicial

cleansing than will opinions based on yesterday's news

and referable to a specific person or event.

Racial prejudice and its effects are as invasive and elusive as they

are corrosive. We should not assume that instructions from the

judge or other safeguards will eliminate biases that may be deeply

ingrained in the subconscious psyches of jurors. Rather, we should

acknowledge the destructive potential of subconscious racial

prejudice by recognizing that the post-jury selection safeguards may

not suffice. Where doubts are raised, the better policy is to err on the

side of caution and permit prejudices to be examined. Only then can

we know with any certainty whether they exist and whether they can

be set aside or not. … (quoted at para. 30 of Troy)

[480] The Court in Troy also restated the basic general principles which apply to the

question of proof in a case of this kind:

Mr. Troy complained that he was discriminated against based on racial

stereotyping. He does not need to show that discrimination comprised the

sole factor in the conduct complained of, and he only needs to raise a

prima facie case that it was a factor. The burden is not an onerous one.

This is because the case law recognizes that discrimination is rarely

openly displayed, and in most cases, must be inferred from circumstantial

evidence. (at para. 25)

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[481] In making these statements, the Court relied upon a decision of this Tribunal,

Kennedy v. British Columbia (Ministry of Energy and Mines), 2000 BCHRT 60, which

was also relied upon by the British Columbia Supreme Court in Lee v. British Columbia

(Attorney General), 2003 BCSC 1432. Kennedy is one of many decisions in which the

difficulties associated with proving allegations of racial discrimination have been

remarked upon by this Tribunal: see, for example, Seignoret v. British Columbia

Rehabilitation Society, [1999] B.C.H.R.T.D. No. 16 at para. 49, and the cases cited

therein.

[482] Taking all these cases into account, I would summarize the applicable principles

as follows:

a) The prohibited ground or grounds of discrimination need not be the sole or the

major factor leading to the discriminatory conduct; it is sufficient if they are a

factor;

b) There is no need to establish an intention or motivation to discriminate; the focus

of the enquiry is on the effect of the respondent’s actions on the complainant;

c) The prohibited ground or grounds need not be the cause of the respondent’s

discriminatory conduct; it is sufficient if they are a factor or operative element;

d) There need be no direct evidence of discrimination; discrimination will more

often be proven by circumstantial evidence and inference; and

e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases

and prejudices.

[483] With these principles in mind, I return to the question of whether Ms. Radek’s

race, colour, ancestry and disability were factors in the conduct of the security guards

towards her on May 10. In my view, no other conclusion is possible on the facts

established in this hearing. On that day, Ms. Radek and Ms. Wolfe were simply on their

way for a cup of coffee. They were not engaging in any offensive behaviour of any kind.

While their clothing may not have been expensive, there is no suggestion it was dirty,

ripped or inappropriate in any way. They were not intoxicated or stoned. They were not

bothering other customers. They had a legitimate purpose for being in the mall. The only

available inference on the facts before me is that Ms. Hayer identified Ms. Radek and Ms.

Wolfe as “suspicious”. That is consistent with her Security Occurrence Report, in which

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she categorized this as a “suspicious person” incident. Having identified them as

suspicious, Ms. Hayer questioned them in a harsh, intrusive, and demanding manner.

When they objected to her questioning, Ms. Hayer demanded they leave, a demand

repeated by both Mr. Clulow and Mr. Power.

[484] I reject the argument put forward by Henderson that Ms. Radek was ejected from

the mall because she caused a disturbance after she got angry because Ms. Hayer

“greeted” her and Ms. Wolfe and followed them when they did not respond to her

greeting. First, the evidence was overwhelming that not everyone was “greeted” at the

door. Rather, those whom the guards identified as suspicious were much more likely to

be greeted than were others. Second, the “greeting” given Ms. Radek and Ms. Wolfe was

not a friendly welcome to the mall; it was more in the nature of an interrogation. Third,

while I accept that Ms. Radek did become angry, her anger was the result of the

discriminatory treatment she was receiving and had received on earlier occasions from

security guards in International Village. To use that anger as a justification for ejecting

Ms. Radek from the mall would be to blame her for refusing to continue to tolerate the

discriminatory treatment she was receiving.

[485] In my view, all three security guards were operating on the basis of subtle

stereotyping. I need not determine if that stereotyping was conscious or unconscious; it

is its effects which are of concern. Under the influence of that stereotyping, Ms. Radek’s

and Ms. Wolfe’s race, ancestry, colour and disabilities rendered them suspicious. In my

view, Ms. Radek has established, without need to resort to a shifting evidentiary burden,

that her race, colour, ancestry and disability were factors in the adverse treatment she

received that day.

[486] This conclusion was particularly clear with respect to discrimination on the

grounds of race, colour and ancestry. I also find that Ms. Radek has established that her

disability was a factor in the adverse treatment she received, as I find that her gait was an

element in the way she was treated. In the alternative, with respect to Ms. Radek’s

disability in particular, I would find that the respondents have failed to rebut the inference

that her disability was a factor. While Mr. Clulow testified that he was not aware of her

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disability at the time, Ms. Hayer, who initiated this incident, did not testify. In the

circumstances, the respondents have not rebutted the inference that Ms. Radek’s

disability was an operative factor, along with her race, in identifying her as suspicious.

Once the two women were identified as suspicious, it gave the security guards cause, in

their minds and under the respondents’ policies, to question them, follow them, and

ultimately to eject them from the mall.

[487] Under the traditional prima facie analysis, the foregoing is sufficient, without

more, to establish that Ms. Radek was discriminated against on May 10 on the basis of

her race, ancestry, colour and disability. In the event that it is necessary to apply the Law

analytical framework, I would add the following.

2. THE LAW ANALYSIS – WAS MS. RADEK’S HUMAN

DIGNITY DEMEANED?

[488] In Law, the Court stated that in order for discrimination to be established under s.

15 of the Charter, in addition to showing differential treatment based on one or more

enumerated or analogous grounds, the following question must be answered in the

affirmative:

Does the differential treatment discriminate, by imposing a burden upon or

withholding a benefit from the claimant in a manner which reflects the

stereotypical application of presumed group or personal characteristics, or

which otherwise has the effect of perpetuating or promoting the view that

the individual is less capable or worthy of recognition or value as a human

being or as a member of Canadian society, equally deserving of concern,

respect, and consideration? (at para. 88)

[489] Central to this question is the determination of whether the differential treatment

in issue demeaned the claimant’s human dignity. The Court explained the concept of

“human dignity” in the following terms:

What is human dignity? There can be different conceptions of what

human dignity means. For the purpose of analysis under s. 15(1) of the

Charter, however, the jurisprudence of this Court reflects a specific, albeit

non-exhaustive, definition. As noted by Lamer C.J. in Rodriguez v.

British Columbia (Attorney General), [1993] 3 S.C.R. 519 at p. 554, the

equality guarantee in s. 15(1) is concerned with the realization of personal

autonomy and self-determination.

Human dignity means that an

individual or group feels self-respect and self-worth. It is concerned with

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physical and psychological integrity and empowerment. Human dignity is

harmed by unfair treatment premised upon personal traits or circumstances

which do not relate to individual needs, capacities, or merits. It is

enhanced by laws which are sensitive to the needs, capacities, and merits

of different individuals, taking into account the context underlying their

differences. Human dignity is harmed when individuals and groups are

marginalized, ignored, or devalued, and is enhanced when laws recognize

the full place of all individuals and groups within Canadian society…. (at

para. 53)

[490] A contextual approach must be taken to determining whether the differential

treatment in question demeans the claimant’s human dignity. The question of whether

the claimant’s dignity has been demeaned must be assessed from the perspective of the

claimant:

The contextual factors which determine whether legislation has the effect

of demeaning a claimant’s dignity must be construed and examined from

the perspective of the claimant. The focus of the inquiry is both subjective

and objective. The relevant point of view is that of the reasonable person,

in circumstances similar to those of the claimant, who takes into account

the contextual factors relevant to the claim. (at para. 88)

[491] There are a variety of factors which may be relevant to the question of whether

the differential treatment demeans the claimant’s dignity. Of the factors referred to by

the Court in Law, I consider the following particularly relevant to the present case:

Pre-existing disadvantage, stereotyping, prejudice, or vulnerability

experienced by the individual or group at issue. The effects of a law as

they relate to the important purpose of s. 15(1) in protecting individuals or

groups who are vulnerable, disadvantaged, or members of “discrete and

insular minorities” should always be a central consideration. Although the

claimant’s association with a historically more advantaged or

disadvantaged group or groups is not per se determinative of an

infringement, the existence of these pre-existing factors will favour a

finding that s. 15(1) has been infringed.

…

The nature and scope of the interest affected by the impugned law. The

more severe and localized the consequences of the legislation for the

affected group, the more likely that the differential treatment responsible

for these consequences is discriminatory within the meaning of s. 15(1).

Although the s. 15(1) claimant bears the onus of establishing an

infringement of his or her equality rights in a purposive sense through

reference to one or more contextual factors, it is not necessarily the case

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that the claimant must adduce evidence in order to show a violation of

human dignity or freedom. Frequently, where differential treatment is

based on one or more enumerated or analogous grounds, this will be

sufficient to found an infringement of s. 15(1) in the sense that it will be

evident on the basis of judicial notice and logical reasoning that the

distinction is discriminatory with the meaning of the provision. (at para.

88)

[492] In this case, there was ample evidence of the subjective impact of the

respondents’ conduct on Ms. Radek. She felt she was being treated like a criminal when

she had done nothing wrong. She was humiliated, insulted, and deeply distressed by the

respondents’ conduct. It is apparent that their conduct demeaned her human dignity in

the subjective sense. Further, it is, in my view, equally apparent that the respondents’

conduct also impaired Ms. Radek’s human dignity in the objective sense. Any

reasonable person in Ms. Radek’s circumstances would have found the guards’ conduct

demeaning. To be harassed and denied entry to a shopping mall for no reason other than

the “type” of person you are presumed to be on the basis of group characteristics is

inherently demeaning.

[493] In Law, the Court referred to pre-existing disadvantage, stereotyping, prejudice, or

vulnerability experienced by the group in issue as factors which would favour a finding

of discrimination. While I would have been prepared to take administrative notice of the

fact that Aboriginal people are an historically disadvantaged group, subject to negative

stereotyping and prejudice, there was also substantial evidence in this case to that effect.

Aboriginal people, as a group, are more likely to be disabled, more likely to be living in

poverty. Ms. Radek embodied these typical characteristics, living as she did in the

Downtown Eastside, on “disability”, in subsidized native housing, and living with a

disability.

[494] Further, the nature of the differential treatment which Ms. Radek suffered was, at

its heart, based upon stereotyping and prejudice. It was on the basis of stereotyping,

likely unconscious, but none the less pernicious for that, that Ms. Radek and Ms. Wolfe

were identified as suspicious and targeted for hostile and intrusive questioning. It is

difficult to imagine a case in which this kind of stereotyping of an historically

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disadvantaged group was established in which discrimination in the purposive sense

would not be self-evident.

[495] Finally on this point, the effect of the respondents’ conduct was severe. Ms.

Radek was devastated by the treatment she received, and became determined that she

would complain, and continue complaining, until someone listened to her. On May 10,

Ms. Radek and her friend were “only” going for a cup of coffee. But their treatment by

mall staff, and their ejection from the mall, was far more significant to them than that

might be thought to suggest. International Village was directly across the street from

where Ms. Radek and Ms. Wolfe lived. On their limited incomes, they had few

indulgences: a visit across the street to Starbucks to enjoy a coffee was important to a

“coffee connoisseur” such as Ms. Radek. More than that, to be harassed, demeaned and

excluded from International Village was to be excluded from their own community, and

denied access to shops and services which were important to their quality of life and

sense of acceptance by mainstream society.

[496] The present case is in many ways reminiscent of a decision of the Saskatchewan

Human Rights Tribunal in which the Tribunal held that a security guard employed by a

supermarket discriminated against a disabled Aboriginal man when the guard refused to

allow the man to buy a bottle of Lysol: Friday v. Westfair Foods Ltd. (2002), 45

C.H.R.R. D/218. The guard wrongly assumed, based on the fact that the man was

Aboriginal, walked with an unsteady gate, and was buying Lysol, that he was intoxicated.

In fact, Mr. Friday had had a stroke, and was buying cleaning supplies for his niece. In

Friday, the Tribunal applied Law, and stated the following with respect to its application

to the facts before it:

As the Supreme Court noted in Law, the withholding of a benefit in a

manner which reflects the stereotypical application of presumed group or

personal characteristics is the ultimate signifier of discrimination.

Whether we are concerned with the complete denial of accommodation,

services or facilities, or other discrimination in relation to accommodation,

services or facilities, the Tribunal is concerned with the impact of the

action upon the complainant. Were stereotypical presumed group or

individual traits assigned to the complainant when he or she experienced

this differential treatment in relation to accommodations, services or

facilities? Did it have the effect of perpetuating or promoting the view

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that the complainant was less capable or worthy of recognition or value as

a human being or a member of Canadian society?

It is also worth noting in the context of this complaint that Law points to

the existence of pre-existing disadvantage as one of the most important

contextual factors in assessing whether discrimination occurred. In most

cases, differential treatment imposed on groups who are already

vulnerable because of their unfair circumstances or treatment by society

will be discriminatory (Law, supra, at para. 63). The pre-existing

disadvantage of Aboriginal persons had been noted in numerous cases:

see, for example, Lovelace v. Ontario, [2000] 1 S.C.R. 950. (at paras. 29-

30)

[497] I agree with these comments, and find them equally applicable to Ms. Radek’s

complaint.

[498] For these reasons, if it is necessary to employ the Law analytical framework to

determine if Ms. Radek suffered discrimination, I find that Ms. Radek has established

that the respondents’ conduct on May 10 demeaned her human dignity in both the

subjective and the objective sense. Under the Law analytical framework, then, the

respondents discriminated against Ms. Radek on May 10, 2001.

[499] Before turning to the systemic dimension of this case, I note that the respondents

did not argue in the alternative that there was a bona fide and reasonable justification for

any discrimination suffered by Ms. Radek on May 10. Given my findings with respect to

the nature of the discrimination which Ms. Radek suffered on that occasion, this was a

sensible approach, as no such justification could be put forward for that conduct.

XI. Analysis -- The Systemic Aspects of the Case

[500] Ms. Radek also alleges that the discrimination which she suffered on May 10,

2001 was part of a larger pattern of systemic discrimination on the grounds of race,

colour, ancestry and disability. Elements of that larger pattern are alleged to include the

respondents’ site post orders, the respondents’ unwritten policies such as “meet and

greet”, the selective enforcement and application of the respondents’ written and

unwritten policies, and the lack of training given to the guards on issues of race and

disability.

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A. What is Systemic Discrimination?

[501] The leading case on systemic discrimination remains the decision of the Supreme

Court of Canada in C.N.R. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114

(better known as “Action Travail des Femmes”). In that case, the Court adopted the

following description of systemic discrimination contained in the 1984 Report of the

Commission on Equality in Employment by Judge Rosalie Abella (as she then was):

Discrimination … means practices or attitudes that have, whether by

design or impact, the effect of limiting an individual’s or a group’s right to

the opportunities generally available because of attributed rather than

actual characteristics … It is not a question of whether this discrimination

is motivated by an intentional desire to obstruct someone’s potential, or

whether it is the accidental by-product of innocently motivated practices

or systems.

If the barrier is affecting certain groups in a

disproportionately negative way, it is a signal that the practices that lead to

this adverse impact may be discriminatory.

That is why it is important to look at the results of a system…. (at para.

34)

B. How is Systemic Discrimination to be Proven?

[502] An issue was raised in this case as to what evidence is required to prove systemic

discrimination. Henderson and Securiguard both argued that, in order to prove systemic

discrimination, the complainant must introduce statistical evidence that shows a

disproportionate result. In other words, the respondents submitted that, in the absence of

reliable statistics establishing that a disproportionate number of Aboriginal or disabled

people were being ejected from the mall, a complaint of systemic discrimination could

not be substantiated. Relying on their analysis of the Security Occurrence Reports, they

went on to argue that Ms. Radek had failed to establish such a disproportionate result.

[503] I have already considered the analyses performed by counsel for both Ms. Radek

and Henderson, and have found that I cannot rely on either of them to determine the

percentage of Aboriginal people ejected from the mall: see above at paras. 395-397.

[504] In my view, however, the absence of reliable statistical evidence of

disproportionate result is not fatal to a claim of systemic discrimination. Such evidence,

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while it may be extremely helpful where it is available, is not an essential element of

proof of systemic discrimination.

[505] The cases relied upon by the respondents in support of the argument that

statistical evidence is necessary do not support that proposition. For example, the

respondents relied on the decision of the British Columbia Council of Human Rights in

Ng v. St. George’s School, [1993] B.C.H.R.D. No. 27, in which the Council dismissed a

complaint of systemic racial discrimination in St. George’s admission practices, in part

because the statistics put forward by the complainant did not establish the racial quota

system alleged. In considering this evidence, the Council said that “[s]tatistics can be

important evidence in human rights cases, particularly when the allegations relate to

systemic discrimination”: at para. 57. The Council went on to say that “statistics can be

powerful circumstantial evidence from which an inference of discriminatory practices can

be drawn”: at para. 57. One can only agree. What the Council did not say, however, was

that such statistical evidence, however important and valuable it may be where it is

available, is necessary in all cases. Similarly, in Lasani v. Ontario (Ministry of

Community and Social Services) (No. 2) (1993), 21 C.H.R.R. D/415 (Ont. Bd. of

Inquiry), another case relied on by the respondents in this connection, the Board did not

hold that statistical evidence is required in all cases. Rather, the Board stated:

In cases such as the one before me, where the Commission alleges

systemic discrimination, the relationship between the allegedly unfair

result and the prohibited ground must still be proven. Commonly, this is

done by a mixture of evidence concerning the attitude of supervisors,

incidents which have occurred etc., and analysis of the statistical pattern in

the place of employment…. (at para. 49)

[506] In considering the evidentiary requirements necessary to establish systemic

discrimination, it is important to note that Lasani, like the majority of the cases in which

allegations of systemic discrimination have been made, have arisen in the employment

context: see also the other cases on which the respondents relied on this connection,

including National Capital Alliance on Race Relations (NCARR) v. Canada (Health and

Welfare), [1997] C.H.R.D. No. 3 (C.H.R.T.) and Zecchel v. British Columbia Meat

Packers Ltd., [1996] B.C.C.H.R.D. No. 38 (B.C.C.H.R.). In the employment context, it

may not be unreasonable to expect that statistical evidence of patterns of hiring and

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promotion may be available. This particularly true in the case of large or public

employers, as in Lasani and Action Travail des Femmes and the other cases referred to,

where the employer may, due either to legal requirements or for its own purposes, keep

records with respect to the demographics of its workforce. Such an expectation would,

by contrast, rarely be reasonable in a service context, where a service provider may be

dealing with very large numbers of people where it would be difficult if not impossible to

obtain the information necessary to keep reliable records of the demographics of the

people whom it serves. It would, of course, be absolutely impossible for a complainant to

amass such records independently of the respondent.

[507] The decision of the British Columbia Council of Human Rights in Bitonti v.

British Columbia (Ministry of Health) (No. 3) (1999), 36 C.H.R.R. D/263, contains a

helpful discussion of the uses and misuses of statistical information. The Council

observed that statistical evidence is often used in cases alleging adverse effect

discrimination, and quoted the following passage from Proving Discrimination in

Canada (Toronto: Carswell, 1987), where Beatrice Vizkelety wrote at p. 175:

However, statistical proof is not without its share of drawbacks. There is the risk

of misuse and even the abuse of this type of evidence. An oft-quoted criticism is

that “too many use statistics as a drunk man uses a lamppost – for support, and

not illumination.” The use of statistical evidence is not an end in itself nor is it a

substitute for legal reasoning. In the barrage of statistics and conflicting expert

evidence one ought not to lose sight of the substantive law when determining the

usefulness, the relevance, and the weight of statistical evidence. ... Not

surprisingly, this evidence will most often call for the assistance of expert

testimony. (cited at para. 114)

[508] The Council in that case proceeded to treat the statistical evidence before it with

caution.

[509] In my view, the nature of the evidence necessary to establish systemic

discrimination will vary with the nature and context of the particular complaint in issue.

If the remedial purposes of the Code are to be fulfilled, evidentiary requirements must be

sensitive to the nature of the evidence likely to be available. In particular, evidentiary

requirements must not be made so onerous that proving systemic discrimination is

rendered effectively impossible for complainants. In my view, to accept the respondents’

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arguments with respect to the necessity of statistical evidence, would, in the context of a

complaint of the type before me, render proof of systemic discrimination impossible.

[510] In this regard, I have found the following comments of the Supreme Court in Law

with respect to the nature of the evidentiary burden on claimants in s. 15 cases of

assistance:

First, I should underline that none of the foregoing discussion implies that

the claimant must adduce data, or other social science evidence not

generally available, in order to show a violation of the claimant’s dignity

or freedom. Such materials may be adduced by the parties, and may be of

great assistance to a court in determining whether a claimant has

demonstrated that the legislation in question is discriminatory. However,

they are not required. A court may often, where appropriate, determine on

the basis of judicial notice and logical reasoning alone whether the

impugned legislation infringes s. 15(1)…

Second, it is equally important to emphasize that the requirement that a

claimant establish a s. 15(1) infringement in this purposive sense does not

entail a requirement that the claimant prove any matters which cannot

reasonably be expected to be within his or her knowledge…. (at paras. 77-

80) (emphasis added)

[511] While that comment was made in the context of considering the evidence

necessary to establish injury to human dignity, I consider it equally applicable in the

present context. Statistical evidence of disproportionate effect will be solely within a

respondent’s knowledge and control. A complainant could not possibly be expected to be

able to produce such statistics unless the respondent collected and maintained the

necessary data in the first place. To create an absolute requirement of statistical evidence

in all cases of alleged systemic discrimination would be to put complainants at the mercy

of the record-keeping choices of respondents.

[512] Further, the respondents’ submissions in this regard proceeded under a

misunderstanding of the kind of negative effect which a complainant must establish in

order to prove systemic discrimination. In this case, for example, there was absolutely no

evidence of the racial makeup of the people entering International Village. We do not

know if 5% or 25% of the people attempting to enter the mall were Aboriginal. In the

absence of this information, it would, even with the best and most reliable information

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about the racial makeup of persons ejected from the mall (which we did not have), be

impossible to determine if Aboriginal people were ejected from the mall in numbers

disproportionate to the rate at which they visited the mall. Such evidence would be

useful, and would strongly tend to suggest discrimination, if it was available, but for the

reasons I have given it is not. However, in order to prove a discriminatory effect, it is not

necessary to prove this sort of disproportionate effect. As noted by the Council in

Bitonti, depending on the nature of the discrimination alleged, statistical evidence may or

may not be necessary or even useful: at paras. 116-129. A discriminatory effect can

also be proven in other ways. If, for example, the effect of the respondents’ policies and

practices was that Aboriginal people tended to be wrongly viewed as suspicious, and thus

discriminated against, then that would be sufficient to establish a negative or

discriminatory effect, regardless of the proportion of Aboriginal people so viewed in

relation to the population as a whole. If that was the effect of the respondents’ practices,

it would not matter how many Aboriginal people were affected, or what proportion they

made up of the whole population of visitors to the mall. In this regard, the present case is

more like the “disproportionate impact” cases discussed in Bitonti at para. 117, than a

“disproportionate effect” case, in which statistics would be more likely to be useful.

[513] For these reasons, I do not agree with the respondents’ submission that statistical

evidence of disproportionate effect is essential to a claim of systemic discrimination,

either generally or in the present case. Rather, to return to first principles, what is

necessary is evidence of “practices or attitudes that have, whether by design or impact,

the effect of limiting an individual’s or a group’s right to the opportunities generally

available because of attributed rather than actual characteristics ….”: Action Travail des

Femmes at para. 34. Statistics may be a “signal” of such effects, but they are not

necessary in every case. The signal should not be confused with the thing signified. The

evidence as a whole should be considered to determine if practices or attitudes are present

which have the effect of limiting persons’ opportunities due to their membership in one

or more protected groups. In this regard, evidence about the attitudes of the respondents

and their employees, evidence of the written and unwritten policies of the respondents,

and evidence of the respondents’ actual practices, both generally and in particular

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circumstances, may all be relevant to, and probative of, the question of whether systemic

discrimination is present.

C. Has Systemic Discrimination Been Established in this Case?

1. EVIDENCE OF THE ATTITUDES OF THE RESPONDENTS

[514] There was comparatively little direct evidence of overtly discriminatory attitudes

on the part of the respondents in this case. For reasons already discussed, this is not

surprising: discrimination is not a practice which one would expect to be displayed

openly. Nor is such evidence necessary in order to establish discrimination. The focus is

on the effect of the respondents’ actions, not their intentions.

[515] At an executive level, the evidence of Mr. Lai, Henderson’s President, did not

suggest that he directed his subordinates or Securiguard to engage in discriminatory

actions. At the same time, what his evidence did establish is that he knew very little

about what was actually going on “on the ground” at International Village. Essentially,

his testimony was limited to saying that Henderson’s mandate to Securiguard was to

ensure a safe environment in the mall. This is not meant as any criticism of Mr. Lai

personally. It is not surprising or unusual that he would have delegated such

responsibilities to others.

[516] What was troubling about Henderson’s evidence was the absence of evidence

from those who were responsible for directing security practices at International Village.

Mr. Molnar, the current mall manager, testified, but as I have already said, I found his

evidence somewhat vague and lacking in detail. It suggested to me that he was seeking

to minimize his knowledge and responsibility for security practices at International

Village.

[517] Further, no other Henderson employees, past or present, testified. The mall

manager throughout most if not all of the period covered by this complaint, Mr. Dunn,

did not testify. Nor did Mr. Le or Mr. Wong or any of the other Henderson management

personnel who were identified in the evidence as having had responsibilities for

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International Village. This evidentiary vacuum renders it more difficult to assess what

the attitudes of Henderson with respect to the issues raised in this case might have been.

[518] What the evidence did establish with respect to Henderson’s attitudes was that

Mr. Dunn, according to the Securiguard employees who testified, gave them direction

and instructions. The presence of Mr. Dunn’s name in some of the Security Occurrence

Reports also tended to establish his involvement in day-to-day security matters.

[519] The evidence was also clear that Mr. Dunn actively supported the actions of the

security personnel at International Village. I refer in this regard both to his letter

published in the Westender and his response to Ms. Radek’s complaint to him about the

May 10, 2001 incident.

[520] The evidence also established that Henderson employees, in particular, Mr. Dunn,

were actively involved in drafting the site post orders.

[521] Turning to Securiguard, no member of its management staff testified. I am aware

that Mr. Doern, who was Operations Manager during at least some of the time period

covered by this complaint, passed away at some time during the course of this hearing. I

did, however, have the benefit of hearing from Mr. Skead, Mr. Power and Mr. Clulow, all

of whom were employed by Securiguard and had some level of on-site supervisory

authority.

[522] There was little, if any, evidence of overt conscious racism on the part of the

security guards who testified. As I deal with in greater detail below in the section entitled

“Playing the Race Card”, there was, however, substantial evidence that the guards who

testified were in a state of denial of the very possibility of racism within their ranks. This

was despite the fact that Mr. Skead, in particular, testified about overt racism on the part

of some of his colleagues.

[523] There was evidence, as I have outlined above at paras. 382-84 and 423, of overt

discriminatory attitudes on the part of guards against persons with some kinds of

disabilities, in particular drug addicts and people with HIV/AIDS. Mr. Skead’s evidence

with respect to “junkies” and people with HIV/AIDS was particularly telling in this

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respect. Nor were these isolated attitudes. The evidence taken as a whole made it clear

that Henderson and Securiguard were actively attempting to keep known drug addicts out

of International Village. This goal was not limited to people actually engaging in illegal

drug activity on the property, but extended to persons identified as known drug users.

Questions posed to “undesirable persons” banned from the mall with respect to drug use

and HIV status are strong evidence of this policy, as was the evidence of the guards

themselves.

2. “PLAYING THE RACE CARD”

[524] A particularly revealing element of the attitudinal evidence led in this hearing

related to the notion of “playing the race card” or “using the racist angle”. Several

witnesses in these proceedings referred to Ms. Radek and other members of minority

ethnic groups as “playing the race card”. This included Mr. Skead, Constable Bellia and

Constable Gough. The use of this or similar language was, in my view, a clear attempt to

discredit allegations of racism as manipulative ploys to gain collateral benefit. Once an

individual’s actions were labelled in this way, they could be discounted and ignored.

Any possibility of consideration of the genuineness of an allegation of racial

discrimination was foreclosed after the application of the label. The use of this language

reflected, in my opinion, a mind closed to the possibility that a given act was racially

motivated or that unconscious racial stereotyping could be at play.

[525] An example of this kind of labelling and its effects can be found in Constable

Bellia’s official report of the May 10, 2001 incident. In it, he writes:

PC’s believe [Radek’s] allegations of an assault are completely unfounded.

She initiated the entire incident and is using the “racist” angle as leverage to

get what she wants (ie: charges against [Clulow]). She accused PC’s of

being racist because she didn’t get what she wanted. She will likely

complain about today’s incident.

[526] In this passage, Constable Bellia accuses Ms. Radek of “initiating” the entire

incident and of alleging racism in order to get what she wants. In so doing, he ignores the

fact that the only thing Ms. Radek did to initiate this incident was to attempt to walk

through the mall in order to patronize one of its stores. There is no basis for suggesting

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that Ms. Radek went to the mall that day determined to initiate an incident or to get

charges laid against a security officer; she wanted to buy a cup of coffee. I have no doubt

that she sincerely believed that the security guards’ actions, and later those of the police,

were racially motivated. She was not using “the racist angle” to get what she wanted.

Constable Bellia’s attempts to discredit Ms. Radek, and any future complaint she might

make, in this way, are disturbing.

[527] Another example of labelling Ms. Radek’s actions as “playing the race card”

occurred in Constable Gough’s oral testimony. He said that Ms. Radek “pulled the race

card”. He became quite heated, saying that “it seems to me that white Caucasian people

are the only people who are accused of racism. But it’s not true. I get accused of racism

all the time….” He felt personally attacked by Ms. Radek’s accusations that other white

people are racist – I note that she never accused him of being racist, although she did

level such an accusation against his partner, Constable Bellia. He described it as an ad

hominem attack on him. He felt such a “racist bent” “flew in the face of logic” – it “blew

out reasonableness”.

[528] One can sympathize with police officers and others who may in the course of their

daily duties be unfairly accused of racism. But Constable Gough appeared to have

allowed that experience to make him discount the very possibility that Ms. Radek had

been racially discriminated against on this occasion. He accepted uncritically the security

guards’ denial of any racial element in their behaviour, perhaps due to feelings of

solidarity with them as uniformed personnel charged with upholding law and order in a

high crime area.

[529] Mr. Skead was particularly vehement with respect to this issue. It permeated his

evidence. He said that racism was an ongoing problem at International Village – not

because of what the guards did, but because of other people’s perceptions. He said that

people would “use the race card to do what they want to do.” He said there was “no

reality to it”. He said that they had received a “handful” of such complaints, but that they

were not legitimate. When asked in cross-examination if racism ever had anything to do

with people “playing the race card”, his answer was “absolutely never”. The clear

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impression left by Mr. Skead’s evidence was that he simply did not believe it was

possible that the security guards were affected by racist attitudes.

[530] At the same time, and in clear contradiction to this evidence, Mr. Skead did say

that there had been some disciplinary actions taken against guards for racism. He

referred to an incident in which a guard, when asked by a mixed-race couple about an

event which was going on in the mall, made a racist remark, and told them it was “just

some Chinese garbage.” He said that he immediately removed that guard. When asked if

anyone had been dismissed due to racism, he said maybe one or two. He referred to one

specific guard who had a problem with anyone who was not white, who found anyone

who was clearly in a minority to be an easy target, including Central Americans, Africans

and natives. He could not recall precisely when this happened, but knew that it was after

he became a supervisor in June 2002.

[531] Mr. Skead testified that guards would express racist opinions among themselves.

He did not consider this to be a problem so long as they did not express them publicly by

words or actions. He said that he heard derogatory comments about many people. When

pressed for examples, he said that he had heard guards say that all Hispanics are drug

dealers. Mr. Skead’s editorial comment about those statements was that unfortunately

there was a great deal of truth to that “down there”. When asked about native people, he

said that they had never had a problem that way – he had never heard any remarks about

them.

[532] I found Mr. Skead’s evidence revealing. He seemed to me to be, for the most

part, a very candid witness. His evidence showed that there were problems with overt

racism among the guards. I found the way in which he discounted the significance of the

racist attitudes of some guards troubling. It was consistent with they way in which he

discounted any allegations of racism as “playing the race card”. Mr. Skead was simply

unwilling, or more likely unable, to recognize the reality of racist attitudes among his

colleagues, or the possibility that those attitudes could have an effect on their dealings

with the mall’s patrons. This is interesting in light of Mr. Skead’s own ethnic

background. Mr. Skead testified that he is part Ojibway, part Gaelic, part Norwegian and

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part English. He is blonde and very fair-skinned. He testified, and I accept, that others

do not recognize him as having any Aboriginal ancestry. I would not have done so. It is

possible that Mr. Skead’s own mixed ethnic heritage has made him have a tendency to

discount the possibility of racism. For whatever reason he may do so, his evidence made

clear that, even in the face of evidence to the contrary, he was unwilling to accept the

possibility of racial discrimination.

[533] While Mr. Power’s and Mr. Clulow’s evidence was not as striking as Mr. Skead’s

in this regard, it was clear that they shared the view that racial stereotyping simply could

not be a problem among the guards. They both relied on the fact that the security force

was itself multi-ethnic to refute this possibility. I have already held that the multi-ethnic

make-up of the security guards was no guarantee against racially biased attitudes.

3. THE ABSENCE OF ANY ANTI-DISCRIMINATION TRAINING

OR POLICY

[534] I have already discussed at length the complete absence of any kind of anti-

discrimination training of security guards employed at International Village: see above at

paras. 379-385.

[535] There was no evidence that either respondent had any kind of written anti-

discrimination policy. The site post orders contain no language to indicate that ejections

from the mall must be done on a non-discriminatory basis.

[536] The absence of any anti-discrimination training or policy on the part of the

respondents demonstrates the lack of concern which the respondents had for ensuring that

security staff at International Village performed their duties in a non-discriminatory

fashion. Vague references to “zero tolerance” for racism are no substitute for effective

training and well-thought out policies which incorporate human rights norms.

4. THE SIGNIFICANCE OF ABORIGINAL SECURITY STAFF

AND MALL PATRONS

[537] Henderson submitted that the fact that there had been security personnel of

Aboriginal descent and that Henry Charles, an Aboriginal man, testified that he had

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visited International Village without incident, supported its position that there was no

systemic discrimination.

[538] I do not agree. First, the evidence with respect to persons of Aboriginal descent

working as security guards or visiting the mall without incident was rather weak. Mr.

Power recalled there being one or two, maximum, Aboriginal guards; he could only name

one, Jonas Lee, and he described him as Chinese and native and looking Spanish. Mr.

Clulow thought there was one more. Mr. Skead testified that he was part Ojibway, but he

did not appear to be Aboriginal, and he said that no one knew his background. One

Aboriginal person, Mr. Charles, testified about going to movies at Tinseltown without a

problem. When compared to the weight of the evidence of Aboriginal people

encountering problems with security staff at International Village, his evidence is not

very telling.

[539] Further, and in any event, the fact that one or two Aboriginal security guards may

have been employed at the mall over the four year period about which I heard testimony,

or that some Aboriginal people may have had no problems at the mall, does not prove

that other Aboriginal people were not discriminated against. I refer to the decision in

Friday, supra, where the Tribunal rejected a similar argument:

Westfair argues that many of its customers and personnel are of

Aboriginal ancestry and that First Nations people shopped at the

Superstore all the time without incident. Mr. Friday even shopped there

for many years without problem.

Therefore, Westfair is not a

discriminatory institution. The issue was canvassed by the Saskatchewan

Board of Inquiry in the case of McNab v. Calynuik Restaurants Inc.

919950, 24 C.H.R.R. D/254 at para. 61:

As well, the evidence that Ryly’s has allowed entry to native

customers does not provide an answer for the respondent. In

Janzen v. Platy Enterprises Ltd., [1989] 4 W.W.R. 39 (SCC),

Dickson C.J.C. stated on p. 68 that discrimination need not be

aimed at all members of the group in question. The fact that the

respondent gave evidence that many of its customers and some of

its employees were of aboriginal ancestry does not in itself prove

that it did not discriminate against the complainant.

The fact that Aboriginal people enjoy the services of Superstore is not an

answer to the fact that, on this occasion, Mr. Friday suffered

discrimination based on his ancestry. (at paras. 41-42)

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[540] I agree. In this case, the fact that one or two people of Aboriginal descent,

including one person whom no one knew to be Aboriginal, worked as guards at

International Village, and that one Aboriginal person testified to going to Tinseltown

without incident, does not mean that Ms. Radek was not discriminated against. Nor does

it mean that the respondents’ policies, practices and attitudes did not lead to widespread

systemic discrimination against Aboriginal people. So far as systemic discrimination

against disabled people is concerned, it is irrelevant.

5. EVIDENCE OF SPECIFIC INCIDENTS

[541] I do not repeat here the findings of fact which I made above at paras. 184-368.

Rather, I summarize my conclusions with respect to incidents about which I heard oral

evidence which, in my view, constitute examples of the pattern of systemic

discrimination experienced by Aboriginal and disabled people at International Village.

[542] In my view, the evidence of Ms. Radek, Ms. Wolfe, Ms. Sterritt, Ms. Wagner, Mr.

Chevillard and Mr. Mack with respect to their own experiences at International Village

demonstrated a pattern of systemic discrimination against Aboriginal people on the basis

of their race. I refer here to the facts I found above with respect to these individuals

being denied entry to the mall, being questioned on entering the mall, being followed

through the mall, and otherwise being subjected to discourteous treatment by guards at

International Village. In each case, I am persuaded that the fact that these people are

Aboriginal played a role in the guards’ decisions to treat them in this manner.

[543] The evidence of these individuals, as well as the observations of Ms. Savage and

Mr. McCurdy, with respect to the treatment of other Aboriginal people at International

Village supports the view that Aboriginal people were singled out for differential

treatment by guards at the mall. I refer here to Ms. Savage’s and Mr. McCurdy’s direct

observations at the mall, as well as the evidence I heard about Ms. Muir, Ms. Cliff, Mr.

Heibert and his partner Stacey, Mr. Samson, Mr. Wilkie and Ms. McDougall.

[544] The evidence also established that disabled people were subjected to a pattern of

differential treatment. I refer here to the evidence of Ms. Radek, Ms. Wolfe and Mr.

Grant about their own experiences, as well as the evidence I heard about Mr. Heibert and

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his partner Stacey, the Grant’s son-in-law, Darren, Ms. Cliff, Mr. Wilkie, Ms.

McDougall, Ms. Grant’s customer, Vera, as well as Ms. Savage’s and Mr. McCurdy’s

direct observations at the mall. In each of these cases, I am satisfied that the fact that

these people had disabilities of various kinds, including HIV/AIDS, cancer, mobility

problems, multiple sclerosis and Parkinson’s disease, played a role in the manner in

which the guards treated them. In most of these cases, the people involved were both

Aboriginal and disabled, and the combination of these characteristics likely contributed to

their identification as “suspicious” by the guards at International Village.

6. ADVERSE EFFECT OF THE SITE POST ORDERS ON

ABORIGINAL AND DISABLED PERSONS

[545] In this portion of my reasons, I discuss the site post orders themselves, and the

adverse effect they would have on some people, including some Aboriginal and disabled

people. In doing so, I have relied on aspects of Dr. Miller’s report, my own analysis of

the site post orders, and the totality of the evidence on how the site post orders were

applied in practice.

a) March 30, 2000 Site Post Order

[546] The opening paragraph of the March 30, 2000 site post order refers to a “zero

tolerance policy” for suspicious people and vagrants. It provides that “all suspicious

people and vagrants must be denied access at the main doors”. It then goes on to identify

a number of “things to look for” in identifying a person as suspicious or a vagrant. If a

vagrant or suspicious person is seen in the mall, the guard is to approach them and

remove them from the mall. If they are “borderline suspicious”, the guard is to “follow

them from a close distance so that they know they are being followed”; if they then

“cause any trouble” they are to be removed immediately.

[547] I discuss the effects on Aboriginal and disabled people of each of the significant

aspects of the site post order below. While I have separated out the various elements of

the site post order for ease of analysis, it must be remembered that in practice the criteria

listed in the site post order did not exist in hermetically sealed compartments. In practice,

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guards would make decisions about people entering the mall on the basis of a global

assessment, in which these criteria would play interrelated roles.

(1) Zero Tolerance for Suspicious People

[548] “Suspicious” is a very open-ended term; our own perceptions and preconceptions

will have a strong influence on who we tend to perceive as suspicious. The guards’

evidence made this clear. For example, Mr. Skead testified that “suspicious” was a

generic term for someone who needs to monitored or watched.

[549] I have already said that I accept Dr. Miller’s evidence that Aboriginal people

could tend to be viewed as “suspicious” by guards applying the site post order. There

was a substantial body of evidence in this case of Aboriginal people being viewed as

“suspicious” in the absence of any inappropriate behaviour on their part.

[550] I also find that some disabled people would be likely to be viewed as

“suspicious”. In particular, the evidence was clear that the guards treated persons whom

they had identified as potential drug users as suspicious. Drug use may qualify as a

disability under the Code. As I discuss further below, the symptoms, such as tremors,

mobility problems, slurred speech, and lesions, associated with certain disabilities, could

also lead to some disabled people being labelled as suspicious.

(2) Zero Tolerance for Vagrants

[551] “Vagrant” is a highly charged term; Mr. Power testified about it being a

“politically incorrect” term for someone who is “down and out”, really dirty or has

offensive body odour. The Concise Oxford Dictionary defines “vagrant” as a “wanderer,

idle rover, vagabond; idle disreputable person without settled home or regular work.” It

might, in general terms, be used to refer to a homeless person.

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[552] There was evidence in this case of people identified as “vagrants” being told by

guards that they could not enter the building for no reason other than that identification.

This is consistent with the explicit terms of the site post orders.

[553] While the evidence before me established that Aboriginal people have higher

rates of poverty than the general population, it did not specifically establish that

Aboriginal people are more likely to be homeless than the general population. Similarly,

while I would be prepared to take notice of the fact that disabled people have higher rates

of poverty than the general population, I have no evidence with respect to rates of

homelessness within the disabled population.

[554] Despite this lack of statistical evidence with respect to homelessness among

Aboriginal and disabled people, I think it is probable that Aboriginal people, in particular

those suffering from a visible disability, as well as other persons with certain kinds of

disabilities, would have been identified as “vagrants” due to the sorts of stereotypical

thinking identified in Dr. Miller’s evidence.

(3) Ripped and Dirty Clothing

[555] I deal with these two criteria together. There may be any number of reasons why

a person’s clothing might be dirty or ripped. A person who performs “dirty work”, such

as a construction worker, might have dirty or ripped clothing on as he made his way

home from work. Some people may wear clothing which is intentionally made to appear

worn or distressed as a fashion statement. It seems clear that neither of these groups of

people was the intended target of these criteria, however. Indeed, there was evidence that

these criteria were eliminated from the second site post order for this very reason.

Rather, in context, it is clear that these criteria were intended to assist the guards in

identifying people as suspicious or vagrants.

[556] People living in poverty frequently have limited access to facilities for washing

their clothes. They also are likely to own comparatively fewer items of clothing, with the

result that whatever clothing they have is more likely to need washing or be worn through

use. Both Aboriginal and disabled people are more likely to be living in poverty and to

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therefore have these problems. In his report, Dr. Miller referred, in particular, to the fact

that this can be a particular problem for people living in SRO and low-rent hotels, as is

common in the Downtown Eastside. According to Dr. Miller, these units typically do not

have self-contained laundry facilities and women may be afraid to access what facilities

do exist. While the respondents challenged Dr. Miller’s expertise with respect to these

issues, I accept his evidence.

[557] In sum, wearing dirty or ripped clothing, of the kinds targeted by these criteria, is

a sign of poverty. Taking signs of poverty as evidence of suspiciousness, particularly in

the Downtown Eastside, would have an adverse effect on some Aboriginal and disabled

people.

(4) Attitudes When Approached and Non-Willingness to Answer Any

Questions We May Propose

[558] These two criteria may have particular significance for Aboriginal people. I deal

with them together.

[559] Once again, “attitude” is a highly subjective term. Is a person who is being

assertive displaying “attitude”? Is a person who questions authority doing so? What

about a person who passively fails to answer questions? The question of whether a

person displays “attitude” when approached gives the guard making that judgment a large

scope for discretionary decision-making.

[560] The type of “approach” which the guard makes to the subject may have a

significant impact on the subject’s attitude in response. There was a great deal of

evidence in this case which established that guards did not approach everyone in the same

way, if at all. I am here referring to the unwritten “meet and greet” policy. While the

guards said they were supposed to greet everyone, it was clear, on their own evidence as

well as that of others, that they did not do so. Mr. Skead, for example, testified that he

was himself personally uncomfortable with the “meet and greet policy”, as he felt that it

intruded on people’s private space and was discourteous. As a result of his discomfort,

he would not attempt to greet everyone who came in, but if he saw a “blatantly possibly

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problem person”, he would do so. He said that whether people were greeted depended on

the mood and personality of the individual guard.

[561] Sometimes there would simply be too many people coming in at one time to

permit the guards on duty at the doors to “greet” everyone. The guards would also

choose not to greet some people – people that they were acquainted with or otherwise did

not consider to be suspicious would not necessarily be greeted. The guards would,

however, “greet” those whom they did consider to be suspicious. Those greetings would

be in the nature of a demand: “where are you going?”, “what are you doing here?”,

“what is your business in the mall?”. Such questions are likely and perhaps even

calculated to trigger an “attitude” in the person to whom they are directed. Natural

responses would be to ignore such a discourteous question, to challenge the questioner’s

authority to ask the question, or to be equally discourteous in reply. Any of these types

of responses could then be characterized as an “attitude when approached” or as a “non-

willingness to answer any questions we may propose” and thus as a basis for identifying

a person as suspicious and requiring them to leave the mall.

[562] On their face, these criteria may not appear to have a disparate effect on

Aboriginal or disabled people. However, in my view, two factors lead to such a disparate

effect. First, the differential application of these criteria, through the choices the guards

made as to whom to greet or question or otherwise approach and in what manner, would

result in the disparate effect. Given that Aboriginal people and disabled people would

appear disproportionately suspicious to the guards in the first place, leading them to greet

or otherwise approach such persons in a hostile manner, which would in turn tend to lead

to an “attitude when approached”, this criterion would have the effect of reinforcing the

guard’s initial impression of a person as suspicious, thereby providing the guard with

confirmation that they should not be allowed in the mall. The May 10 incident with Ms.

Radek and Ms. Wolfe is an excellent example.

[563] Second, some characteristics typical of Aboriginal people would tend to make

them appear to have an “attitude” when approached or unwilling to answer questions. In

his report, Dr. Miller provided some useful information about why Aboriginal people

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might be particularly liable to respond with what might be characterized as an “attitude

when approached” or might not be willing “to answer any questions we may propose”. I

quote at length from his report:

First Nations people are frequently highly sensitive and resistant to intrusive

behaviour by members of the mainstream community (which here includes

whites and others who are not members of the Aboriginal community).

Many First Nations people, when stopped in public by someone in uniform,

are well aware that they have been sized up as deficient in some manner and

they find this objectionable. There are many reasons for this. Briefly, First

Nations people have a long history of being placed under the malign

regulation of the dominant society and First Nations people are keenly

aware of this and of the long-term efforts to obliterate First Nations culture

and society through federal policies of assimilation. They are aware that the

dominant society has long regarded Aboriginal people and culture as

repugnant. From a young age, children learn by first-hand experience and

through instruction from adults about the regulatory environment that they

and their family have experienced. Today grandparents describe the history

of regulation by Indian Agents who controlled the movements of Aboriginal

people and who restricted religious practice and many other basic elements

of daily life. Virtually all First Nations extended families have members

who have experienced severe difficulties while in state or church run

residential schools. Many children experience the entry into social

institutions such as schools as jarring and uncomfortable and they are often

subject to violent attack. Many Aboriginal people in the DTES are victims

and survivors of residential schools and are alienated from their Nation’s

home communities because they were taken away as children. Even

children understand that Aboriginal practices are commonly misunderstood

or rejected and feel the pressures to conform to alien ways of behaving…

For all of these reasons, a First Nations person confronted by a security

guard who has identified them as suspicious may find the process of

answering questions to be yet another attack on their integrity as a person

and as yet another instance of the intrusive and malign rejection of

Aboriginal people and culture by members of the dominant society.

Virtually any First Nations person has a lifetime of such experiences, and

these experiences shape the way they understand their interactions with

people they regard as hostile or as acting to enforce rules. First Nations

people may not see any obligation to voluntarily cooperate with a security

guard who has negatively prejudged them, and this may seem to be a

negative “attitude” to a security guard intent on imposing his or her

judgement…

While a member of other ethnic or racial groups might well feel annoyance

to be singled out for questioning and possible exclusion from the Village,

the implications for First Nations people are particular to them. Many feel

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that non-aboriginal people have wrongfully and illegally appropriated their

lands, an issue currently being addressed in the courts and in treaty

negotiations and land claims, and feel special displeasure when excluded by

those they feel are outsiders. Further, Aboriginal people have well-

established notions of respectful behaviour and conversational practices

which are sometimes violated by non-aboriginal people who behave in a

manner which appears rude. In particular, First Nations notions of respect

place great emphasis on the autonomous individual, the recognition of

individual differences and private experiences and the avoidance of

confrontation and interference in the lives of others… Finally, Aboriginal

people have culturally determined notions of the appropriateness of sharing

information and who within their family can properly speak for the family.

Questions given by security guards may demand information that

Aboriginal people believe ought not to be shared or that is properly

conveyed by another member of their family.

A final set of factors related to the idea of “attitude when approached” is

simply that some First Nations people, many from the prairie provinces or

the north, speak English as a second language, and consequently, slowly.

They may be unaware of the idiomatic expressions employed by security

personnel and they may have difficulty understanding English as it is

spoken by some members of society. Added to this might be medical

factors which can limit hearing or make speech difficult … and a cultural

practice of speaking slowly. These factors may cause a slow response,

which itself can be regarded by unaware observers as lippy or an indication

of “attitude”.

[564] Dr. Miller’s evidence in this regard is supported by Healing Ways, which refers to

some typical differences in the way in which Aboriginal and non-aboriginal people

communicate that may have particular relevance in this context:

Physical actions can also be intimidating. For example, standing over

someone with arms folded, asking questions too quickly, and not waiting

for an answer discourages communication. Aboriginal people tend to

have a more reflective and deliberate speech pattern than non-Aboriginal

people. (at p. 13)

[565] Examples of some of the factors which Dr. Miller discusses arose in the evidence

before me. For example, Ms. Radek’s reaction to the questioning which she received

from Ms. Hayer during the May 10 incident was the result of many factors, including her

own lifetime experience of racism and her ongoing experience of problems with the

guards at International Village. She initially attempted to ignore Ms. Hayer’s

questioning, and when Ms. Hayer persisted and became more aggressive, Ms. Radek

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responded with some anger. According to Mr. Power’s report on the incident, as the

argument continued and the guards were attempting to remove Ms. Radek for creating a

disturbance, Ms. Radek said that they were on native land and that she did not have to

leave. While Ms. Radek did not testify that she said that, I think that it is quite likely that

she did, arising out of her frustration in being excluded from the mall.

[566] Another interesting example of one of the factors discussed by Dr. Miller arose in

Angela Sterritt’s testimony. In testifying about the effects of the most serious incident in

which she was involved at International Village, in which she was told that she was

“banned for life”, Ms. Sterritt said that she was very mad, that it felt very disempowering,

like “they were back in the 50s with the stuff my parents when through”. Here is an

example of a young Aboriginal woman, who when faced with racially-influenced

exclusion from the mall, instantly related it to her parents’ historical experience of

racism.

[567] On all of the evidence before me, I am satisfied that these two criteria were

applied differently to some Aboriginal and disabled people because such people were

more likely to be classed as “suspicious” and thus open to being approached or

questioned. I also find that the approaches made and questions posed to Aboriginal

people and disabled people were likely to be different from those made to others, and, in

particular, were more likely to be rude, demanding or hostile. I am also satisfied that

many Aboriginal people would respond to being approached or questioned in ways which

a guard would tend to classify as “attitude” or “non-willingness to answer any questions

we may propose”.

(5) Talking to Themselves

[568] A person may talk to themselves for any of a number of reasons. It is one of the

hallmarks of the stereotypical eccentric professor. It seems likely, however, that the

intended target of this criterion was mentally ill people who may talk to themselves as a

result of their disability. I accept that some people may find such behaviour disturbing,

especially if the talk is particularly loud or offensive. Be that as it may, there is no doubt

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that this criterion would have an adverse effect on a sub-group of mentally disabled

people.

(6) Open Sores and Wounds on Face and Body

[569] Once again, people may have open sores or wounds for a number of reasons.

They may have just been in a fight or have injured themselves in an accident. They may

be drug users with infections at injection sites or who have picked at their skin. They

may also be suffering from a number of medical conditions. A person may have acne.

The evidence in this case also demonstrated, for example, that people with HIV/AIDS

may develop cancers which appear as lesions on the face or body.

[570] This was an issue of particular concern to Mr. Skead. He testified about how he

wished they could remove people with open sores from the mall, that he wished “they”

wouldn’t come, “people living that lifestyle”, that he did not want to get infected. The

Banned Books show that open sores or lesions were frequently cited as a characteristic of

“undesirable persons” banned from the mall.

[571] I accept that some people may be disturbed by seeing open sores or wounds. In

some cases, if the sores are infectious, they may pose a public health hazard. Generally,

however, such sores or wounds pose no such threat, and are merely unfortunate

symptoms or consequences of serious medical conditions. It is likely that this criterion

was included as a proxy to target drug users. Drug users, if addicted, are disabled within

the meaning of the Code. As such, this criterion would have an adverse impact on that

sub-group of disabled persons. It would also have an adverse impact on people, such as

David Heibert and his partner Stacey, and the Grants’ son-in-law Darren, who have

lesions as a result of HIV/AIDS, cancer or other disabilities.

(7) Red Eyes

[572] This criterion would appear to be a proxy for the next – being intoxicated or

stoned. There was no evidence to suggest that the “red eyes” criterion itself, divorced

from the notion of intoxication, would have any kind of discriminatory effect on

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Aboriginal people. It could have such an effect on people with certain kinds of health-

related problems, such as allergies, although there was no evidence of it being employed

in that manner, which tends to suggest that its intended target was intoxicated people.

(8) Acting Intoxicated or Stoned

[573] Once again, there can be a number of reasons why a person may “act” intoxicated

or stoned. They may, in fact, be intoxicated or stoned, which may well be a legitimate

reason for refusing them access to a place like International Village. They may also,

however, be acting in that manner for some other reason, including medical conditions

such as Parkinson’s Disease or diabetic insulin shock. They may also have other

conditions, such as health-related mobility problems, which may give them an unsteady

gait, thus making them appear to be intoxicated or stoned. The application of this

criterion to persons who are perceived to be acting intoxicated or stoned, due to such

medical problems, would result in an adverse effect on them because of their disabilities.

This is consistent with the conclusion reached in De Sousa v. Ontario (Liquor Control

Board) (1993), 23 C.H.R.R. D/401 (Ont. Bd. of Inquiry), in which a provision in the

Liquor Control Act which prohibited the sale of liquor to anyone who appeared to be

intoxicated was held to have an adverse discriminatory effect on the complainant because

of his disability: at paras. 45-46. Mr. De Sousa had a disability which impaired his gait

and resulted in slurred speech; he was denied service because liquor store staff wrongly

concluded he was intoxicated.

[574] This criterion may have a special impact on Aboriginal people. The stereotype of

the “drunken Indian” is endemic in our culture. I found both Ms. Radek’s and Ms.

Wagner’s evidence particularly revealing and poignant in this regard. They were both

quick to point out, unasked, that they do not drink, at pains to negate the prevalent

stereotype of the drunken Indian. As a result of this stereotype, members of mainstream

culture may readily tend to perceive or assume Aboriginal people to be drunk, whether

they are or not. The speech patterns of some Aboriginal people may also lead non-

aboriginal people to assume they are drunk. As Dr. Miller stated in his report:

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… non-aboriginals sometimes believe that Aboriginal people sound drunk

because of their pronunciation of English words. This can be the case even

when Aboriginal people do not have proficiency in the language of their

indigenous community. Many local First Nations people, for example,

speak English with a Halkomelem accent, even though they speak little

Halkomelem. Halkomelem and other First Nations languages employ

devices, such as glottal stops which make English pronunciation sound

incorrect to speakers of English as a first language.

[575] Stereotypes about “drunken Indians”, combined with a lack of training and

knowledge about the symptoms of certain disabilities, combine to make Aboriginal

people with disabilities particularly likely to be wrongly identified as intoxicated or

stoned. The evidence about people such as Ms. Cliff, Ms. McDougall and the elderly

couple described by Mr. McCurdy substantiates this concern.

[576] Further, it is clear from all of the evidence, including the Banned Books and the

testimony of the guards themselves, that guards considered not only those actively under

the influence, but also known drug users, to be undesirable per se. The guards took

active steps to attempt to ascertain if people were drug users, and frequently noted

characteristics like being an “addict” or “on methadone” on the Undesirable Person

Reports. This was true regardless of the presenting cause for security involvement.

While it may well be appropriate to take steps to monitor, and if necessary, remove

intoxicated or “stoned” people from the mall, if for example, they are creating a

disturbance or falling asleep in a restaurant, there is no justification for excluding drug

users, simply because they are drug users, from walking through a mall or shopping in

one of its stores.

(9) Bothering Customers

[577] At first glance, this criterion may appear unobjectionable – why would it not be

acceptable for a security guard to remove someone who was bothering other customers?

In many cases, it would be – the merchants and patrons of a shopping mall should not be

expected to put up, for example, with someone who is making loud, abusive or

threatening remarks. Rather, the potential problem with this criterion arises out of the

manner in which it may be applied. I quote from Dr. Miller’s report:

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The criteria of “bothering customers” can be another exercise in circular

logic. Because many non-aboriginal people are uncomfortable simply being

in the presence of First Nations people, about whom they have negative

associations and stereotypes, one can assume that they are likely to

experience and express this in a variety of ways. In some instances, efforts

by Aboriginal people to make “small talk”, such as asking directions, is

interpreted as threatening or invasive by non-aboriginals. Further, because

there is cultural variation in proxemics, the ways in which people use space

in public, some people may feel that First Nations people have come too

close to them and are threatening. Members of some societies, for example,

tolerate close contact and even jostling in public, and others find this

unacceptable and a mark of rudeness and ill-will. In brief, if members of

one group expect to find the behaviour of others as bothersome, and do,

there is no independent measure of behaviour, but instead, simply the

persistence of bias. (emphasis added)

[578] Mr. Power testified that people were removed from the mall for bothering other

customers. The Banned Books also contained records of people being banned for

bothering other customers. There was, however, no direct viva voce evidence of this

criterion being explicitly relied upon as the basis of guards’ actions in any particular case.

There was, for example, no oral evidence of customer complaints about a particular

individual leading to that individual being removed from the mall.

[579] I am satisfied, however, that depending on how this criterion was applied, it could

have a discriminatory impact on both some Aboriginal people and some disabled people.

In particular, it could have a discriminatory impact on mentally ill people whose

behaviour may be perceived as objectionable by some people. Applied without sufficient

cultural sensitivity, it could also have a discriminatory impact on people from different

cultural backgrounds.

(10) Begging for Money or Cigarettes on the Street

[580] I accept that an enterprise such as International Village would be entitled to

prevent people from begging or panhandling within its confines. What is interesting

about this criterion, however, is that it refers, not to people begging in the mall, but to

begging on the street. I fail to see the basis upon which a mall would be justified in

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barring someone from entering their premises because they had begged elsewhere, yet

that is what this criterion says.

[581] While I can see no justification for this criterion as written, I am not satisfied that

it has been proven that it would have a disparate impact on Aboriginal or disabled people.

Once again, I acknowledge that both Aboriginal people and disabled people, particularly

those in the Downtown Eastside, are more likely than the general population to live in

poverty. However, I had no evidence that they are, as a result, more likely to beg for

cigarettes or money; I simply do not know what the correlation, if any, is between being

Aboriginal or being disabled and begging. It may be, for example, that despite being

poor, Aboriginal people are, for cultural reasons, disinclined to beg. Given the absence

of any evidence on this point, I cannot find that this criterion would have a disparate

impact on any of the grounds relevant to this complaint.

[582] A somewhat similar reason why people were not allowed to enter the mall which

is not explicitly listed in the site post order is if they were carrying bags of recyclables or

were found going through the garbage in the mall looking for cigarettes, recyclables or

food. The guards who testified were very clear that mall management had directed them

not to allow such people in or through the mall. The Banned Books contained examples

of people being banned for such behaviour. Such a policy would clearly have an adverse

impact on those people living in poverty who choose to engage in such activities. There

were a number of examples in the evidence of Aboriginal people who were carrying

bags, whether of recyclables or other materials, being refused entry into the mall.

Overall, I think it is probable that this unwritten criterion was applied in a differential

manner: a white, able-bodied person carrying a shopping bag would not be of concern,

an Aboriginal or disabled person doing the same thing would be more likely to be

targeted.

(11) Having a Bad Odour

[583] There are many reasons why a person may have what another person perceives to

be bad body odour. Some of these may be culturally related. For example, a person who

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eats certain foods, such as garlic, meat or some spices, may have a body odour which a

person who does not eat those foods may find offensive. The choice of the foods one eats

is a result of many factors, including one’s cultural heritage: see, for example, Chauhan

v. Norkam Seniors Housing Cooperative Association, 2004 BCHRT 262 at para. 126.

[584] A person may have bad body odour as a result of inadequate hygiene. Inadequate

hygiene may be the result of many factors, including personal choice, mental disability,

or poverty resulting in lack of access to cleaning facilities and personal hygiene products.

[585] A person may also have what is perceived to be a bad body odour due to certain

medical conditions.

[586] It seems likely that this criterion was included in order to target persons who

smell badly due to poor personal hygiene, and in particular “vagrants” and others without

access to washing facilities and products. In this regard, it would have an adverse impact

on the poor. The evidence in this hearing established that many Aboriginal and disabled

people are poor, and may as a result have problems obtaining access to washing facilities

and products. As a result, this criterion could have a differential impact on some

Aboriginal and disabled people.

[587] Further, I find that this criterion would have an adverse impact on those disabled

people who, as a result of their disability, have a body odour which others may perceive

to be offensive.

(12) Borderline Suspicious

[588] Under the site post order, if a guard thought a person was “borderline suspicious”

the guard was to follow them from a close distance so they know they are being followed

and, if they cause any trouble, remove them.

[589] The phrase “borderline suspicious” highlights the vague and subjective nature of

the determination of whether a person is suspicious. That vagueness and room for

interpretation makes the operation of unconscious stereotypes all the more significant, as

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in case of doubt they are likely to be referred to in order to determine if a person should

be labelled as such.

[590] The treatment to be given a person deemed “borderline suspicious” appears

designed, whether intentionally or not, to create conflict. Following a person closely so

that they know that they are being followed is likely to be interpreted as a hostile and

aggressive act. Many people would react negatively to such conduct, thereby allowing

the guard to find that they have caused trouble and must be removed. Like demanding

that people say where they are going or what their business is in the mall, this aspect of

the site post order seems designed to provoke behaviour which will provide the guard

with cause to remove a person. For essentially the same reasons that I found that those

criteria had an adverse impact on Aboriginal people, I also find that this practice would

do so.

b) May 6, 2002 Site Post Order

[591] The site post order was changed after approximately two years. The number of

criteria of “things to look for” was reduced. The language was “cleaned up” to be more

“politically correct”. An attempt was made to focus on behaviour-related problems,

rather than categories of people. There is no question that the changes to the site post

order were improvements. However, as my analysis of them below shows, they were not

sufficient to overcome all of the problems identified in the first site post order.

[592] The new site post order removes any reference to denying people access at the

main doors, although it continues to say that suspicious people and transients are to be

kept off the site. “Transient” has been substituted for “vagrant”. From their evidence, it

appears that the guards took the two words to be equivalent in meaning, with “transient”

merely being more “politically correct”. Certainly this was Mr. Power’s evidence, who

had a leading role in drafting the new policy. The purpose of the policy is stated as

being: “to provide a safe environment for our customers and merchants”. This is an

improvement, as it explicitly ties the policy to a legitimate business purpose.

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[593] The number of “things to look for” is reduced to four: “attitudes when

approached with greeting”, acting intoxicated or stoned, bothering customers, and

begging for money or cigarettes inside or around the shopping centre. A number of the

more facially objectionable criteria have been eliminated, but problems remain.

(1) Zero Tolerance for Suspicious People

[594] This element is unchanged from the previous site post order. My comments

above remain applicable.

(2) Zero Tolerance for Transients

[595] As I have said, “transients” was adopted as a more politically correct term than

“vagrants”. This element remains substantively identical.

(3) Attitudes When Approached with Greeting

[596] This criterion has been amended slightly from “attitudes when approached” to

“attitudes when approached with greeting”. Despite this change, this criterion remains

essentially the same. All that this amendment accomplished is to make explicit the “meet

and greet” policy which had been an unwritten part of the respondents’ policies

throughout. I have already discussed at length the differential way in which the meet and

greet policy was applied.

(4) Acting Intoxicated or Stoned

[597] This criterion, and my analysis of it, remains the same as in the previous site post

order.

(5) Bothering Customers

[598] This criterion, and my analysis of it, also remains unchanged.

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(6) Begging for Money or Cigarettes Inside or Around the Shopping

Centre

[599] This criterion has been amended slightly to add begging inside the mall. My

comments otherwise continue to apply.

(7) Known Troublemaker

[600] This is a new element. Under the May 2002 site post order, guards were directed

to immediately remove any “known troublemakers” from the mall. Like some other

aspects of the site post orders, there is nothing the matter, from a human rights

perspective, with this directive on its face. Again like some other aspects of the site post

orders, the difficulty arises with respect to its application. Unconscious stereotyping may

cause a guard to view an Aboriginal person, or a person with some kinds of disabilities,

as a “troublemaker”. The term is too vague and open-ended to provide meaningful

assistance to a security guard seeking to apply it.

(8) Outward Appearance that he/she may be a Transient or Drug

User and Appears Coherent

[601] I deal with these two new aspects together. Under the second site post order,

guards were directed to follow “borderline suspicious” people from a close distance.

People identified as “suspicious” by the CCTV operator were to be assessed “up close”.

Seemingly in both cases, “if the person does not show any outward appearance that

he/she may be a transient or a drug user and he/she appears coherent let them in the

centre but keep a close eye on them. Inform the guard to the location they are headed to

maintain constant contact.”

[602] As I read this element, guards were directed to closely follow all people identified

as suspicious or borderline suspicious. I have already discussed how such behaviour

could readily have the effect of engendering a hostile reaction in the person being

followed or monitored. Further, guards were directed to remove anyone who showed by

their outward appearance that they may be a transient or drug user. This is an explicit

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statement of the respondents’ policy of attempting to keep out known drug users.

Further, anyone appearing incoherent is to be removed. This would clearly have a

negative impact on some mentally ill people.

(9) People Can Only be Removed for Behaviour Related Problems

[603] This is a new element of the policy. While it is certainly an improvement, the

remainder of the second site post order contradicts it. The rest of the site post order

mandates the removal of people on a status, rather than a behavioural basis. I refer here

to the directives that people be removed for “being” suspicious, borderline suspicious, a

transient or a drug user.

D. Conclusion with respect to Systemic Discrimination

[604] The evidence in this case established a pattern of systemic discrimination on the

part of the respondents. In their desire to keep undesirable people out of the mall, the

respondents created policies and engaged in a number of practices which had an unfair

and discriminatory effect on Aboriginal people, as well as people with some disabilities.

In general, Aboriginal people were likely to be viewed as “suspicious” or “borderline

suspicious” and thus subject to heightened scrutiny and intrusive questioning. People

with some kinds of disabilities were excluded on a class basis, in particular drug addicts

and people with visible signs of or otherwise identified as having HIV/AIDS. Further,

people with other kinds of disabilities, including those affecting their mobility, their

behaviour or their appearance, were liable to be the subject of negative treatment, on the

basis of the explicit terms of the site post orders or as a result of being mistakenly

identified as intoxicated or stoned.

[605] In my analysis of the individual aspect of this complaint, I have discussed how the

intersection of prohibited grounds of discrimination may result in compound

discrimination. In my view, the systemic aspect of this complaint also exhibits this

characteristic. People who were both Aboriginal and disabled, such as Ms. Radek, Ms.

Wolfe, and Mr. Heibert and his partner, as well as others discussed in these reasons, were

particularly liable to be viewed as suspicious and undesirable, and thus subject to adverse

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treatment. For example, stereotypes about “drunken Indians” made it likely for

Aboriginal people with mobility-related disabilities to be perceived as intoxicated or

stoned.

[606] To be singled out for treatment of the kind described in this decision, because of

one’s race or disability or a combination of those factors, constitutes a clear violation of

the human dignity of all those so affected. The opportunity to walk into a shopping mall

and buy a cup of coffee, go for an inexpensive meal, use a bank machine, or simply pass

through on the way to public transportation, is one which the majority of Canadians take

for granted. The practices of the respondents had the effect of systematically denying the

Aboriginal and disabled people of the Downtown Eastside that opportunity. It made

them strangers in their own community. In so doing, the respondents impeded

Aboriginal and disabled people’s “full and free participation in the economic, social,

political and cultural life of British Columbia” and failed to “promote a climate of

understanding and mutual respect where all are equal in dignity and rights”, contrary to

the purposes set out in s. 3 of the Code. This denial of equal opportunity on the basis of

stereotypes about Aboriginal and disabled people constitutes the antithesis of respect for

human dignity.

[607] In reaching this conclusion I have relied, as I have indicated in the course of these

reasons, on some of the hearsay evidence introduced in this hearing about the experiences

of Aboriginal and disabled people who did not testify. If I had not done so, I would have

come to the same conclusion on the basis solely of the direct viva voce evidence of the

witnesses who testified in this hearing about their own experiences and observations of

the practices of the security personnel at International Village. Similarly, in reaching this

conclusion, I have relied on evidence about events which occurred between December

1999 and October 2000, the additional time period which I have amended the complaint

to include, as well as similar fact evidence after May 10, 2001. Had I not amended the

temporal scope of the complaint and considered evidence from the December 1999 to

October 2000 period, or if I had not considered the subsequent similar fact evidence, I

would have come to the same conclusion on the basis of the evidence relating exclusively

to the October 2000 to May 10, 2001 time period. The majority of the evidence of

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discrimination arose in that time period, which coincides with the opening of Vancouver

Native Housing. In particular, the vast majority of Ms. Radek’s, Ms. Wolfe’s, Ms.

Sterritt’s, Mr. Chevillard’s and Mr. Mack’s testimony referred to events which occurred

during that time period.

XII. Analysis -- Have the Respondents Established that the

Systemic Discrimination was Bona Fide and Reasonably

Justified?

A. Introduction

[608] Securiguard submitted that if Ms. Radek was successful in establishing a prima

facie case of systemic discrimination arising out of the site post orders, the respondents’

policies were bona fide and reasonably justified. While Henderson did not explicitly

make the same argument, such an argument can be inferred from its submissions with

respect to the legitimate rationales for the respondents’ policies and actions. I therefore

consider whether the respondents have succeeded in establishing a defence to the prima

facie case of systemic discrimination.

[609] The usual test for whether a prima facie case of discrimination in a service,

facility or accommodation is bona fide and reasonably justified was established by the

Supreme Court of Canada in British Columbia (Public Service Relations Commission) v.

BCGSEU, [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1 (“Meiorin”) and British Columbia

(Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),

[1999] 3 S.C.R. 868, 181 D.L.R. (4th) 385 (“Grismer”). Under that test, the initial onus

is still on a complainant to show a prima facie case of discrimination. Once that has been

established, the onus shifts to the respondent to prove, on a balance of probabilities, that

the discriminatory standard or policy had a bona fide justification by showing:

a) it adopted the standard for a purpose or goal that is rationally connected to the

function being performed;

b) it adopted the standard in good faith, in the belief that it is necessary for the

fulfilment of the purpose or goal; and

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c) the standard is reasonably necessary to accomplish its purpose or goal in the

sense that the respondent cannot accommodate persons with the characteristics of

the complainant without incurring undue hardship. (see Meiorin at para. 54,

Grismer at para. 20)

[610] The application of the Grismer justification analysis in the context of an

allegation of systemic discrimination is not without its difficulties, as what is in issue is

not a single standard, but a complex of interrelated practices, policies and attitudes

resulting in a pattern of systemic discrimination. Nonetheless, both Ms. Radek and

Securiguard framed their submissions in accordance with the Grismer analysis, and I will

employ it, with whatever modifications are necessary in this context.

B. Were the Practices, Policies and Attitudes Adopted for a

Purpose or Goal Rationally Connected to the Function Being

Performed?

[611] Securiguard submitted that the site post orders were adopted to provide a safe

environment for the mall’s customers and merchants. In my view, that was only part of

the purpose of the site post orders. Their larger purpose, in my view, was to create what

would be perceived as a pleasant shopping environment which would attract shoppers to

a high end shopping mall. They were therefore designed, not only to keep out persons

who might pose a threat to the safety of mall property, visitors and merchants, but also to

keep out undesirable people whose presence would be at odds with the image the mall

wanted to project.

[612] The site post orders themselves are rationally connected to this larger purpose.

Keeping “vagrants”, people with bad body odour, ripped or dirty clothes, and so on out of

the mall would tend to assist the mall in projecting its preferred image as a high end

shopping and entertainment complex. The site post orders are not, however, necessarily

rationally connected to the purpose put forward by Securiguard. There is no rational

connection between keeping people with bad body odour or ripped or dirty clothes out of

the mall and maintaining a safe shopping environment.

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[613] The site post orders are only one part, however, of the larger pattern of practices,

policies and attitudes which have been found to be prima facie systemically

discriminatory. If those practices, policies and attitudes are looked at globally, as I

believe they must, the respondents have not succeeded in showing a rational connection

between them and either purpose I have discussed.

[614] So far as Aboriginal people are concerned, I have found that they were likely to

be perceived as suspicious by security guards, and thus marked out for questioning,

monitoring and removal. This was the combined result of the site post orders, oral

policies with respect to “meeting and greeting” and “walking and talking”, and attitudes

among the respondents’ personnel, both conscious and unconscious. There is no rational

connection between the discriminatory treatment afforded Aboriginal people and the goal

of maintaining a safe shopping environment. To suggest that there was a rational

connection between discriminating in these ways against Aboriginal people and

maintaining the image the mall wished to project would be to accede to the grossest racial

prejudice and stereotyping.

[615] Turning to people with disabilities, many of the same comments apply. Unlike in

the case of Aboriginals, the site post orders on their face authorize discrimination against

some people with disabilities; I refer here to “red eyes”, “open sores”, “bad body odour”

and “acting intoxicated or stoned”. Taken together with the evidence about the guards’

instructions, practices and attitudes, it was clear that active efforts were made to exclude

two groups of disabled people: drug addicts and people with HIV/AIDS. The evidence,

including that about the guards’ lack of relevant training, further made clear that other

people with disabilities were discriminated against due to the failure to distinguish

between the effects of a number of disabilities and being intoxicated or stoned. The

evidence also established that some people with mental illnesses were subject to

discrimination.

[616] Leaving aside for one moment the question of drug addicts and mentally ill

people, I do not believe that any rational connection could be made between

discriminating against disabled people and maintaining a safe shopping environment.

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Once again, to suggest that a rational connection could be found between excluding and

otherwise discriminating against disabled people and maintaining the image the mall

wished to project is repugnant.

[617] I turn now to the question of drug addicts. The evidence was absolutely clear that

steps were taken to identify and exclude drug addicts, regardless of whether they were

using on the site or showing signs of active intoxication or being stoned. I would

distinguish sharply between the exclusion of drug addicts per se, and ejecting those

actively engaging in drug-related criminal behaviour. I do not think a rational connection

can be established between a class-based exclusion of drug addicts and either of the two

purposes I have identified, for the reasons already discussed. On the other hand, there

would, in my view, be a rational connection between not allowing people to use or be

identifiably under the influence of illegal substances on mall property and the goal of

maintaining a safe shopping environment. An enterprise such as International Village

should not be expected to condone illegal activity on its premises.

[618] Finally, on this issue, I turn to the case of mentally ill people. Even the most

carefully drafted and applied behaviour-based ejection policy would have a negative

impact on those mentally ill people who, because of their illness, are engaging in

dangerous, threatening or otherwise objectively unacceptable behaviour. In making this

comment I am not suggesting that all or most mentally ill people engage in such

behaviour, but there are those who do. I accept that there is a rational connection

between attempting to control such behaviour and removing from the mall people who

are engaging in it and maintaining a safe shopping environment. I would, however,

distinguish that circumstance from that of a mentally ill person whose behaviour may be

perceived as merely odd by those around him.

C. Were the Practices, Policies and Attitudes Adopted in Good

Faith and in the Belief that they were Necessary for the

Purpose or Goal?

[619] Securiguard submitted that the site post orders were adopted in the honest and

good faith belief that they were necessary to maintain a safe shopping environment. It

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submitted “[t]he mall is situated in the Downtown East Side, an area known for its high

crime and drug use. The Respondents honestly believed in order to have a successful

shopping centre, steps had to be taken to ensure that the mall was kept clean of drug

abusers and criminals.”

[620] I have little doubt that the respondents honestly believed that both the site post

orders and the rest of the elements that taken together created a pattern of systemic

discrimination were necessary. The evidence established that both respondents put a

great deal of time, effort and resources into keeping “undesirable” people out of the mall.

They would not have done so if they did not believe it was necessary.

[621] This part of the Grismer analysis requires not only that the policies have been

adopted honestly, however, but also in good faith. To my mind, the element of good faith

has not been established, at least not with respect to all elements of the pattern of policies,

practices and attitudes which I have found discriminatory. It is difficult to conceive, for

example, that a conscious effort to keep out “junkies” or people with HIV could be done

in good faith. Such overt, intentional discrimination cannot be characterised as in good

faith. Further, to the extent that discriminatory practices were engaged in to project a

desirable image and attract customers to the mall, it must be questioned whether those

practices could be said to be in good faith. Customer preferences have never been

accepted as a bona fide justification for discriminatory conduct. For example, in De Jong

v. Horlacher Holdings Ltd. (1989), 10 C.H.R.R. D/6283 (B.C.C.H.R.), customer

preferences were rejected as a defence to discrimination on the basis of disability in

circumstances where an employer had dismissed an employee with acne because of

customer complaints about her appearance and misguided fears of HIV and other

diseases. In reaching that conclusion, the Council relied upon the following passage from

Hajla v. Nestoras (Welland Plaza Restaurant) (1987), 8 C.H.R.R. D/3879 (Ont. Bd. Inq.)

(at para. 30731):

However, it is well established that it cannot be a defence of a respondent

to assert that he only discriminated because of the perceived or real

preferences of customers. There are many decisions which have held that

it is not a defence to say that one discriminated as a matter of business or

economic advantage or necessity, to meet the wishes of other persons,

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such as customers, tenants or employees. See, for example, P.G. du

Quebec v. Service de Taxis Nord Est (1979) Inc. (1986), 7 C.H.R.R.

D/3112; Iberto Imberto v. Vic and Tony Coiffure (1982), 2 C.H.R.R.

D/392 at D/397 (McCamus, Ont. Bd. of Inquiry); and Scott v. Foster

Wheeler Limited (1985), 6 C.H.R.R. D/2885 (Hunter, Ont. Bd. of Inq.).

More generally put, one cannot break the law because another person

wants or encourages the transgressor to do so. Any other approach of the

law would tend to defeat the public policy objectives in human rights

legislation. It would be absurd for the law to allow a defence for factors

which go directly contrary to the public policy that the law is seeking to

put into effect. (cited at para. 44693 of De Jong)

[622] Similarly, I would not accept that discriminatory practices carried out in an effort

to project a desirable image to the preferred group of potential customers could be said to

be in good faith. It is also difficult to see how other elements of the systemic

discrimination engaged in here, such as the stereotyping of Aboriginal people as

suspicious and undesirable, could be said to have been done in good faith. In both cases,

the acceptance of such a defence would tend to defeat the public policy objectives which

the Code is seeking to effect.

[623] Ms. Radek submitted that the site post orders were not adopted in good faith

because they were inconsistent with the statutory right of way. She argued that the right

of way which was negotiated between Henderson and the City of Vancouver, in which

Henderson granted the public a right of way over its property, essentially defined the

bases upon which Henderson could, in good faith, exclude people from that property. In

this connection, she noted that the respondents’ employees were not shown or informed

about the right of way. Further, she relied upon the fact that members of the public were

not shown a copy of the site post orders when they requested them, as all pointing

towards bad faith on the respondents’ part.

[624] There is some attraction to this argument. Certainly the site post orders are far

more expansive than the right of way in terms of the grounds upon which people can be

denied entry or removed from the mall. Further, the fact that the employees of the

respondents who were charged with day-to-day operations in the mall were not made

aware of the terms of the right of way is troubling. So too is the fact that the respondents’

usual practice was to refuse to show members of the public a copy of the site post orders.

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The respondents were not acting in an open and transparent manner consistent with good

faith efforts to maintain a safe shopping environment. In my view, the respondents’

conduct in this regard suggests that they were reluctant to inform the public of the larger

purpose of their security practices, that is, to keep undesirable people out of the mall in an

effort to maintain and project their desired image. Rather, they preferred to focus public

attention solely on the more acceptable elements of their security practices, those actually

related to the maintenance of a safe shopping environment, such as removing shoplifters

and drug dealers.

[625] Taken as a whole, I cannot say that the respondents have established that they

acted in good faith.

D. Were the Practices, Policies and Attitudes Reasonably

Necessary to Accomplish their Purpose or Goal in the Sense

that the Respondents Cannot Accommodate Persons Subject

to the Systemic Discrimination Without Incurring Undue

Hardship?

[626] In its argument, Securiguard characterized this as the most contentious part of the

Grismer analysis. It argued that the respondents recognized that the 2000 site post orders

could be improved, and redrafted them in 2002 so that they focussed solely on behaviour-

related problems. On this basis, Securiguard submitted that by changing the wording of

the site post orders any necessary accommodation had been made.

[627] I have already analysed the 2002 site post orders, and found that while

improvements were made, serious problems remained: see above at paras. 591-603. In

particular, the 2002 site post orders continue to authorize status-based discrimination in

relation to people identified as “suspicious”, as transients, and as drug-users. Further, the

2002 site post orders continued to authorize the use of procedures which I have found had

a negative impact on Aboriginal people, in particular the “meet and greet” policy and

following and questioning those deemed suspicious. Finally, the 2002 site post orders

continued to fail to contain any reference to human rights norms, and the necessity of not

discriminating on grounds prohibited by the Code. I therefore cannot agree with

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Securiguard’s submission that the 2002 site post orders constituted reasonable

accommodation.

[628] Nor did the evidence, as a whole, establish that the respondents had taken

adequate steps to fulfil their duty to accommodate. The glaring omission of any anti-

discrimination, anti-racism or disability awareness training for the guards remained

throughout. Even events such as the removal of the racist guard by Mr. Skead sometime

after June 2002, the more recent removal of the guard for making racist comments about

Chinese New Year, and the present complaint itself, did not result in the respondents

taking any steps to provide their guards with better and more effective training to assist

them in their difficult work. Rather, the situation continues to be one in which

allegations of racism are dismissed as impossible, with the very possibility that a person

may have a valid complaint dismissed as simply “playing the race card”.

[629] Similarly, the evidence showed that the respondents failed to take any steps at all

to assist the guards in distinguishing between the effects of intoxication and the

manifestations of certain disabilities. In De Sousa, supra, a similar failure on the part of

the Ontario Liquor Control Board to provide training for its staff with respect to

disabilities which might be mistaken for intoxication was held to mean that the Board had

failed its duty to accommodate: at paras. 45-47.

[630] The respondents have not established that they have succeeded in accommodating

those Aboriginal and disabled people who have suffered systemic discrimination as a

result of security policies and practices at International Village.

[631] In my view, an ejection policy which closely followed the language of the

statutory right of way, while giving explicit recognition to human rights norms, combined

with effective training for security guards and responsible management in how to apply

such a policy in a non-discriminatory way, would likely satisfy the accommodation

requirement. The combination of such steps would result in a reasonable balance

between the mall’s right and obligation to ensure a safe shopping environment, while at

the same time respecting the human rights of those who wish to pass through and shop at

International Village.

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XIII.Analysis -- Remedy

[632] Having found the complaint to be justified in both its individual and systemic

aspects, I must go on to consider the appropriate remedies. Ms. Radek sought both

individual and systemic remedies.

A. Section 37(2)(a) – Cease and Desist Order

[633] Where a complaint is found to be justified, under s. 37(2)(a) the Tribunal must

order the person that contravened the Code to cease the contravention and to refrain from

committing the same or a similar contravention. I order both respondents to cease and

refrain from discriminating against people on the basis of their race, colour, ancestry and

disability.

B. Section 37(2)(b) – Declaratory Order

[634] Under s. 37(2)(b) of the Code, the Tribunal may make a declaratory order that the

conduct complained of, or similar conduct, is contrary to the Code. In the circumstances

of this case, I consider it appropriate to make such an order, and hereby declare that the

respondents’ conduct is contrary to the Code.

C. Section 37(2)(d)(iii) -- Injury to Dignity

[635] Ms. Radek sought an order pursuant to s. 37(2)(d)(iii) of the Code for

compensation for injury to her dignity, feelings and self-respect in the amount of

$15,000.00. Her primary request was that the respondents be directed to pay out that

amount as follows:

(a) $5,000.00 to be paid directly to Ms. Radek; and

(b) $10,000.00 to be paid in trust to Ms. Radek and said funds to

be provided to the Native Housing Society, located at 27

West Pender Street, specifically for the 30 residences it runs

in partnership with Triage.

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[636] In the alternative, Ms. Radek sought to have the same total amount paid to her,

leaving it to her to determine what to do with the money. It was, however, Ms. Radek’s

strong preference to have the award for injury to dignity directed in the manner

requested, as it would better reflect and remedy both the individual and systemic aspects

of the complaint.

[637] The respondents submitted that the amount of the award for injury to dignity

sought by Ms. Radek far exceeded what was appropriate in the event the complaint was

found to be justified. Securiguard, which took the lead for the respondents on remedial

issues, submitted a total award for injury to dignity in the range of $1,000.00 to $2,000.00

was appropriate. Henderson submitted that $1,000.00 would be an appropriate award.

Both respondents also submitted that the Tribunal could only order compensation for the

injury to dignity suffered by Ms. Radek personally, and could not order compensation to

a group for their cumulative injury to dignity suffered due to systemic discrimination.

[638] Ms. Radek’s position is an attractive one. I have found the complaint to be

justified in both its individual and systemic aspects, and it was clear from the evidence

before me that both Ms. Radek and others suffered injury to their dignity, feelings and

self-respect as a result of the respondents’ discriminatory conduct. Further, Ms.

Radek is, in my view, to be commended for seeking to have any monetary award directed

to assist members of the group whom I have found to have suffered systemic

discrimination. My remedial jurisdiction is, however, defined by s. 37 of the Code. The

relevant sub-section, s. 37(2)(d)(iii), provides as follows:

(d) if the person discriminated against is a party to the complaint, or is

an identifiable member of a group or class on behalf of which a

complaint is filed, [the Tribunal] may order the person that

contravened this Code to do one or more of the following:

(iii) pay to the person discriminated against an amount that the

member or panel considers appropriate to compensate that

person for injury to dignity, feelings and self respect or to any

of them. (emphasis added)

[639] In my view, the language of the Code is clear that a respondent can only be

ordered to pay compensation for injury to dignity, feelings and self-respect suffered by a

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party to the complaint, or, in the case of a representative complaint, identifiable members

of the group on whose behalf the complaint was filed. In this case, Ms. Radek is the sole

complainant. While the complaint has an important systemic aspect, it is not a

representative complaint. I can therefore only order the respondents to pay to Ms. Radek

the amount I consider appropriate to compensate her for the injury to dignity, feelings

and self-respect which she suffered. What she chooses to do with the award ordered will

be for her to decide.

[640] What is the appropriate quantum for compensation for Ms. Radek? In my view,

this is a case in which a substantial award for injury to dignity, feelings and self-respect is

warranted. Ms. Radek suffered repeated acts of discrimination, culminating in the May

10, 2001 incident. On that day, not only did she suffer discrimination at the hands of the

security guards, her ordeal continued as her attempts to get the police officers to take her

complaints seriously were dismissed. In this respect, Ms. Radek’s situation was similar

to that of the complainant in Friday, supra, where the police were called to the scene and

made him apologize to the security guard who had refused him service. It might be said

in this case, as in Friday, that “[t]he initial refusal of service which gave rise to the

complaint was only the beginning of a sequence of events that had the effect of

exacerbating the humiliation, confusion and embarrassment he felt at the beginning”: at

para. 47. Also as in Friday, Ms. Radek’s situation was worsened by the failure of the

manager to respond appropriately to her complaint; in both cases, the manager simply

deferred to the security guard’s judgment: at para. 46. I note that in Friday the Tribunal

relied on those factors in granting the complainant the highest award available under the

applicable legislation. There is no statutory limit in the British Columbia Code on the

amount the Tribunal can order payable for injury to dignity.

[641] From her testimony, it was clear that Ms. Radek found the discrimination she

suffered, both on May 10 and on previous occasions, insulting and humiliating. They

offended her dignity as an Aboriginal woman. They made her, quite justifiably in my

view, angry. They reminded her of her previous experiences of racial discrimination.

Ms. Radek testified that after the May 10 incident she never went in to International

Village by herself again. She said that she did not feel good walking there, that she felt

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safer on the streets of the Downtown Eastside than in Tinseltown. She said that she did

not go back because she did not want to be degraded again. In cross-examination, she

said that even though she had a supportive network of friends, she felt alone. There was

nothing her friends or family could do to make her feel better, to take away the hurt or to

give her her dignity back. Once again at this point in her cross-examination, Ms. Radek

was overcome emotionally in giving her evidence. Taken as whole, Ms. Radek’s

evidence amply demonstrates the severe emotional impact the respondents’

discriminatory actions had on her.

[642] I am not persuaded by Securiguard’s arguments in favour of a minimal award for

injury to dignity. Securiguard submitted that an award at the “low end of the scale”

should be awarded because this was a services case, not an employment situation in

which the complainant’s livelihood was at stake. While it is true that many services

complaints have resulted in comparatively lower awards, it is the individual facts of each

case which must be considered. Further, the cases relied upon by Securiguard in this

respect were all older cases, and its submissions failed to take adequately into account the

fact that the Tribunal’s decisions demonstrate a trend towards increased damages awards

in appropriate cases, including cases of discrimination in services, facilities and

accommodations: see, for example, in addition to the cases discussed below, Waters v.

BC Medical Services Plan, 2003 BCHRT 13 and Hutchinson v. B.C. (Min of Health),

2004 BCHRT 58. In this case, Ms. Radek was repeatedly discriminated against due to a

variety of factors beyond her control, particularly her race. Due to her limited income

and impaired mobility, Ms. Radek’s shopping and entertainment options were limited.

International Village was directly across the street from her residence. Located within it

were a variety of shops and services she needed and wished to use on a frequent basis. It

contained a public right of way convenient to the local Skytrain station. It was located in

the neighbourhood Ms. Radek saw as her home. To be harassed on entering it and told

that she had to leave or to go around or to justify her presence in it constituted a severe

disadvantage to Ms. Radek.

[643] Securiguard also submitted that because the May 10, 2001 was a “one-off”

incident, a lower award was justified. This submission ignores the fact that the May 10

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2001 incident was not a single, isolated event, but rather was part of an ongoing pattern

of discriminatory behaviour which Ms. Radek suffered.

[644] Securiguard also submitted that the Tribunal’s highest awards have been in sexual

harassment cases which have a more profound effect on a person’s dignity. There is no

question that sexual harassment can have a profound effect on a person’s dignity: see for

example Gill v. Grammy’s Place Restaurant, 2003 BCHRT 88, in which the then highest

ever award of $10,000.00 was awarded in a sexual harassment case. But other forms of

discrimination may have equally pernicious effects: see, for example, Fenton v. Rona

Revy Inc., 2004 BCHRT 143, in which $10,000.00 was awarded in a case of

discrimination on the basis of disability. When one considers the historical reality of

racism suffered by Aboriginal Canadians generally, and in Ms. Radek’s case in

particular, it is reasonable to conclude that the impact on her of the discrimination she

suffered from the respondents may have been especially severe. As in tort law, the

perpetrator of discrimination takes its victim as it finds her. If past traumatic experiences

make a person more vulnerable to the effects of repeated instances of discrimination, it is

the discriminator, not the victim, who must bear the compensatory burden. Further, the

fact that Ms. Radek suffered discrimination on a number of intersecting grounds,

including both race and disability, suggests that the effect may have especially severe:

see, Comeau v. Cote, supra, at para. 131 and Baylis-Flannery v. DeWilde, supra, at

paras. 145-46.

[645] Securiguard also argued that the award should be lower because Ms. Radek had

submitted no medical evidence of anxiety, depression or stress. I reject this argument.

While such evidence can justify a higher award, its absence does not necessarily imply

the opposite. People deal with the effects of discrimination in different ways. Not

everyone seeks medical attention for psychological suffering: see Fenton at para. 45.

Ms. Radek’s evidence, as well as that of Ms. Wolfe and Mr. Houston, made it clear that

she suffered significantly as a result of the respondents’ conduct.

[646] Considering the evidence as a whole with respect to the effect of the respondents’

discriminatory conduct on Ms. Radek, I think she should receive a substantial award for

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injury to dignity. I therefore order the respondents to pay her the amount of $15,000.00

for injury to her dignity, feelings and self-respect. In arriving at that figure, I have

assessed the impact which the respondents’ conduct had on Ms. Radek, which I consider

to be more serious than that in Fenton, especially in terms of the dignity aspect. I have

also, as in Fenton, considered the size of the awards made by this Tribunal for injury to

dignity, feelings and self-respect, and the need to increase those awards in appropriate

cases in order to more adequately compensate complainants for their suffering, consistent

with awards in other jurisdictions, especially Ontario: see Fenton at paras. 79-82.

[647] The respondents, both being responsible for the discrimination suffered by Ms.

Radek, are jointly and severably liable for this amount. Post-judgment interest will be

payable on this amount. Interest is to be calculated at the bankers’ prime rate as

published by the British Columbia Supreme Court Registry, in accordance with the Court

Order Interest Act, R.S.B.C. 1996, c. 79.

D. Section 37(2)(d)(ii) – Expenses Arising from the Breach of the

Code

[648] Under s. 37(2)(d)(ii) of the Code, the Tribunal may compensate the person

discriminated against for all, or a part, of any expenses incurred by the contravention.

Under this head, Ms. Radek seeks reimbursement for the costs of Dr. Miller’s expert

report and his time attending the hearing of this matter, in the amount of $2,100.00. In

response, Securiguard submitted that such expenses were only properly recoverable if

they were out-of-pocket expenses incurred by Ms. Radek personally. If, on the other

hand, they were paid by Ms. Radek’s counsel (the Community Legal Assistance Society

or “CLAS”), then no order can be made for their reimbursement.

[649] In this connection, Securiguard referred me to the Tribunal’s decision in

Mahmoodi v. University of British Columbia, [1999] B.C.H.R.T.D. No. 52. In that case,

the complainant sought compensation for the portion of the costs, not covered by the

Legal Services Society, that were associated with hiring an expert. The Tribunal ordered

those costs reimbursed, saying that “[a] complainant may be compensated for proven

hearing-related expenses as they are considered expenses incurred as a result of the

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contravention under the Code”: at para. 322. The Tribunal, due to the nature of the relief

sought by the complainant in that case, was not required to consider the legal issue raised

by Securiguard’s submissions, which is whether compensation for hearing-related

expenses can be ordered where those expenses were incurred not by the complainant but

by her publicly funded counsel.

[650] Ms. Radek pointed to the Tribunal’s decision in Morris v. BC Rail, 2003 BCHRT

14, in which the Tribunal ordered the respondent to pay to the complainant, who was

represented by CLAS, the cost of a medical expert report and the attendance of an expert

at the hearing. I note, however, that there is no discussion in the decision of the point

raised here of whether a respondent should be required to pay for hearing-related costs

for which the complainant is not herself responsible.

[651] In my view, the language of s. 37(2)(d)(ii) of the Code is determinative of this

legal issue. The Tribunal only has jurisdiction to make an order requiring a respondent

“to compensate the person discriminated against for … expenses incurred, by the

contravention.” There is no doubt that hearing-related expenses, such as the cost of

expert reports and of requiring experts to attend at the hearing, may qualify as expenses

incurred as a result of the contravention: see Gill v. Grammy’s Place at para. 163.

However, I am of the view that a respondent can only be required to compensate such

costs if the person discriminated against incurred them. If they were paid by some other

person or entity, and the complainant is not responsible for repaying them, then such

costs are not properly compensable under s. 37(2)(d)(ii). Such an interpretation follows

not only from the plain language of s. 37(2)(d)(ii), but is also consistent with its purpose,

which is to ensure that complainants are not required to pay the costs resulting from the

contravention of the Code, including the costs associated with proving their case.

[652] In the present case, two affidavits from Joanne Norgaard, a legal secretary with

CLAS, were submitted. Ms. Norgaard swore that CLAS had paid two invoices from Dr.

Miller: one in the amount of $1,500.00 for his expert report and a second in the amount

of $600.00 for his attendance at the hearing. There is no indication in the affidavits that

the costs of Dr. Miller’s report and attendance at the hearing are repayable by Ms. Radek.

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If Ms. Radek is responsible for those costs, then they are properly compensable by the

respondents. I anticipate that counsel will be able to determine if the respondents are

liable for these hearing-related costs. If they are not, then the parties will be at liberty to

apply to me with respect to this issue within the 60 day period following release of this

decision. In the event that these hearing-related costs are properly payable by the

respondents, the respondents are jointly and severably liable for them.

E. Section 37(2)(c) – Systemic Remedies

[653] Section 37(2)(c) of the Code permits the Tribunal to order the person who

contravened the Code to:

(a) take steps, specified in the order, to ameliorate the effects of the

discriminatory practice;

(b) adopt and implement an employment equity program or other

special program to ameliorate the conditions of disadvantaged

individuals or groups if the evidence at the hearing indicated the

person has engaged in a pattern or practice that contravenes the

Code.

[654] In argument, Ms. Radek sought the following systemic remedies:

(a)

(b)

an order requiring the respondents to advertise this decision by posting it in

the mall;

an order requiring the respondents to engage in a public education endeavour

in the Downtown Eastside with respect to the public right-of-way through the

mall and any decision this Tribunal may make;

(c)

(d)

an order providing directions regarding the education of security guards; and

such other relief as the Tribunal deems appropriate.

[655] I note that the systemic remedies requested by Ms. Radek in oral argument

differed somewhat from those she sought in her Amended Statement of Remedy. I am,

however, prepared to consider the remedies requested by Ms. Radek in oral argument. I

am prepared to so do both because the respondents had a fair opportunity to respond to

Ms. Radek’s oral submissions and because of the Tribunal’s broad remedial discretion to

craft remedies appropriate in each particular case, a discretion not constrained by any

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parties’ submissions in this regard. The respondents did not make any argument to the

contrary. Securiguard provided written submissions in response to the remedies sought

by Ms. Radek in her Amended Statement of Remedy. It also made oral submissions in

response to Ms. Radek’s oral argument on this issue. I found Securiguard’s submissions

on the systemic remedy issue very helpful.

[656] As acknowledged by Securiguard, it is appropriate in most cases where systemic

discrimination is proven to adopt and implement a specially tailored program to

ameliorate the conditions of the disadvantaged individuals or groups affected by the

discrimination in question. In my view, the real question to be considered in relation to

crafting systemic remedies is to determine what remedies would be responsive to the

discrimination proven and likely to be effective in preventing the same or similar

discrimination from continuing to occur in the future. The purpose of the Code “is not to

punish wrongdoing but to prevent discrimination”: Action Travail des Femmes at para.

25. This basic principle is nowhere more important than in considering what, if any,

systemic remedies are appropriate. As stated in Action Travail:

… in attempting to combat systemic discrimination, it is essential to look

to the past patterns of discrimination and to destroy those patterns in order

to prevent the same type of discrimination in the future…

… MacGuigan J. stressed in his dissent [in the court below] that “the

prevention of systemic discrimination will reasonably be thought to

require systemic remedies”. Systemic remedies must be built upon the

experience of the past so as to prevent discrimination in the future…. (at

paras. 44-45)

[657] In the present case, the discrimination which was proven all occurred at the

International Village. Securiguard security personnel were directly responsible for

engaging in those discriminatory acts. Securiguard and Henderson management were

responsible for permitting and indeed directing at least some of those acts to occur. The

evidence suggested that the problems experienced by Ms. Radek and other members of

the affected groups have diminished over time as a result of a number of factors,

including the introduction of the new site post order in May 2002 and the reduced

security presence at the site. Ms. Wolfe testified that the guards at the mall are better

now, and do not push and shove like they used to. I note, however, that the evidence also

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suggested that some problems are continuing to occur and that the effects of past patterns

of discrimination continue. Certainly some witnesses, such as Ms. Radek, Mr.

Chevillard, Mr. Mack and Ms. Wagner, testified that they now avoid going to

International Village due to their previous negative experiences there. Mr. Laviolette

testified to hearing fewer “stories” of problems with security at the mall, but attributed

that to fewer people going there. The fact that Securiguard is no longer present at the

site, having been replaced by En Guard in June 2003, is also important in determining

what systemic remedies are appropriate.

[658] I deal with the question of systemic remedies separately for each of the

respondents. In the case of Securiguard, it is no longer providing services at International

Village. There was no evidence that the discriminatory practices which I have found

Securiguard personnel to have engaged in while employed at International Village are a

problem at any other location. Indeed, what evidence there was on this point suggested

the contrary, as people referred to positive experiences with Securiguard personnel both

at T&T Supermarket and a nearby bank. Given that Securiguard no longer provides

services at International Village, there is no point in ordering any systemic remedies with

respect to that company at that location. Given the absence of any evidence of

discrimination by Securiguard elsewhere, there is no factual basis upon which to order

Securiguard to take any ameliorative steps more generally.

[659] For these reasons, I am of the view that it is not appropriate to order any systemic

remedies against Securiguard. I am hopeful that Securiguard, having had this complaint

brought against it, and having had its practices at International Village found wanting,

will take steps, if it has not already done so, to review its practices more generally in

order to ensure that it is in compliance with the Code. The evidence before me was clear

that Securiguard employees at International Village were in need of anti-discrimination

education. There was a systemic lack of understanding of how racially based

assumptions and stereotypes may have affected the guards’ perceptions of the people they

dealt with and their decisions about how to interact with persons entering the mall. There

was also a clear lack of understanding about how some disability-related conditions may

affect people’s behaviour and appearance, and the importance of being sensitive to the

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needs and characteristics of disabled people. As a responsible service-provider and

employer, I would encourage Securiguard to take proactive steps to ensure that security

personnel employed by it at other locations are better trained and supported to perform

their important and often difficult work in a non-discriminatory manner.

[660] I turn now to Henderson. Henderson continues to own and manage the

International Village, and as such, continues to be responsible for security services at the

location. As I have already observed, the evidence before me suggested that some of the

problems I have described in this decision have lessened over time. It did not, however,

establish that there are no further problems at the mall. Mr. Skead, who was a participant

in the systemic discrimination practiced at International Village, and gave such candid

evidence about his attitudes with respect to the matters raised in this complaint, is now in

charge of security at the mall. This suggests that there remains a need for appropriate

systemic remedies. A systemic remedy, tailored to assist Henderson in ensuring that

security services at the mall are delivered in a non-discriminatory manner, is appropriate.

That remedy should ensure that security guards are provided with the policies, training

and support they need to perform their duties in a non-discriminatory fashion. It should

also ensure that members of the public who have concerns about security guards’ conduct

have access to an effective internal complaints mechanism.

[661] With this goal in mind, I make the following orders against Henderson:

(a)

Henderson is to ensure that the site post orders, or other directions with

respect to access to and appropriate behaviour within International Village, in

place for any security service provider it retains are non-discriminatory. In

particular, they must be clear that persons entering or seeking to enter the mall

are not to be discriminated against on the basis of any ground prohibited in the

Code;

(b)

Henderson must require that all security personnel employed by any security

service provider at the International Village, including any on-site supervisors

or managers, as well as any Henderson management responsible for day-to-

day operations at the mall, receive appropriate anti-discrimination training,

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such training to include both anti-racism and disability awareness

components. Henderson must also ensure that all security personnel

employed by any security service provider at International Village, including

any on-site supervisors or managers, as well as any Henderson management

responsible for day-to-day operations at the mall, are made aware of the

public right of way through the mall;

(c)

(d)

Henderson must ensure that there is an appropriate procedure in place for

receiving and responding to complaints the public may make about the

practices and conduct of security personnel employed by any security service

provider at International Village; and

Henderson must ensure that any person requesting a copy of this decision or

any site post orders or other directions with respect to access to and

appropriate behaviour within the mall or the statutory right of way receives

the requested documents.

[662] Based on the evidence that I heard, I consider the training component to be

particularly key to ensuring that discriminatory patterns of conduct do not continue in the

future. I note that similar training orders have been made in previous cases, including

Friday, supra, where the Tribunal order the respondent to provide additional training to

its staff “to allow them to assess situations of possible intoxication in a manner that goes

beyond stereotypes”: at para. 51.

[663] I am not persuaded that it is appropriate to order any of the other systemic

remedies sought by Ms. Radek. I do not believe that requiring this decision or any other

materials to be posted within the mall would serve any useful purpose. Nor do I think

that requiring Henderson to engage in the public educational efforts requested would be

an effective means of preventing future discrimination at International Village. In my

view, the orders I have made against Henderson are more likely to be effective in

preventing any recurrence or continuation of the discrimination which occurred in this

case.

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[664] I recognize that the systemic remedies I have ordered against Henderson are fairly

general in nature. There are two reasons for this. The first is a matter of necessity; I do

not have reliable information with respect to the current site post orders or other

directions in place with respect to access to and appropriate behaviour within the mall.

The second is to provide the parties with an opportunity to work together to craft the

appropriate details of the language in the site post orders and directions, of the complaint

procedure, and of the education to be provided to the security guards and other personnel

involved on site. In my view, such an opportunity will serve a vital remedial purpose –

that of assisting Henderson in understanding the viewpoints and needs of members of the

disadvantaged groups in the community it serves. I therefore order Henderson to consult

with Ms. Radek and her counsel with respect to the details and implementation of the

remedies ordered. While I do not order the parties to do so, I would also strongly

encourage them to consult more widely with community groups, such as organizations of

people with disabilities and Aboriginal organizations, in this process: see De Sousa,

supra, at para. 49, in which a similar recommendation was made. Experts such as Dr.

Miller may also have valuable insights, which I would encourage the parties to take

advantage of. Such groups and experts are likely to have helpful contributions which

would be of assistance to the parties in ensuring that the discrimination I have found, and

the resulting ill-will and loss of business, do not continue in the future.

[665] I will maintain jurisdiction over this matter for a period of six months from the

date this decision is released. If, at the end of that period, the parties are unable to reach

agreement with respect to the details and plans for the implementation of the systemic

remedies ordered, they are at liberty to apply to me. This is similar to the order made in

Chipperfield v. British Columbia (Ministry of Social Services) (No. 2) (1997), 30

C.H.R.R. D/262 at para. 63, in which the parties were given six months to attempt to

reach agreement with respect to the creation of a non-discriminatory policy. In the event

the parties do make application to me, I retain jurisdiction to hear argument, and if

necessary, further evidence, and to make additional orders pursuant to s. 37(2)(c).

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XIV. Conclusion

[666] I have found the complaint to be justified. I found that Henderson and

Securiguard discriminated against Ms. Radek, both on May 10, 2001 and on a number of

earlier occasions. I also found that both respondents engaged in systemic discrimination

on the basis of race, colour, ancestry and disability, throughout the period of this

complaint.

[667] Having found the complaint to be justified, I made a number of remedial orders,

as follows:

(a)

Pursuant to s. 37(2)(a), both respondents are to cease and refrain from

discriminating against people on the basis of their race, colour,

ancestry and disability;

(b)

(c)

Pursuant to s. 37(2)(b), the respondents’ conduct is declared to be

contrary to the Code;

Pursuant to s. 37(2)(d)(iii), the respondents are to pay Ms. Radek

15,000.00 in compensation for injury to her dignity, feelings, and self-

respect. Post-judgment interest is payable on this amount as I have

indicated;

(d)

Pursuant to s. 37(2)(d)(ii), the respondents are to pay Ms. Radek any

portion of the hearing-related expenses associated with Dr. Miller’s

expert report and attendance at the hearing which she is responsible for

paying. In the event counsel are unable to agree with respect whether

any monies are payable under this head, they are liberty to apply to me

within 60 days of the date of the release of this decision;

(e)

Pursuant to s. 37(2)(c), the following systemic remedies are ordered

against Henderson:

(i)

Henderson is to ensure that the site post orders, or other

directions with respect to access to and appropriate

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behaviour within International Village, in place for any

security service provider it retains are non-discriminatory.

In particular, they must be clear that persons entering or

seeking to enter the mall are not to be discriminated against

on the basis of any ground prohibited in the Code;

(ii)

Henderson must require that all security personnel

employed by any security service provider at the

International Village, including any on-site supervisors or

managers, as well as any Henderson management

responsible for day-to-day operations at the mall, receive

appropriate anti-discrimination training, such training to

include both anti-racism and disability awareness

components. Henderson must also ensure that all security

personnel employed by any security service provider at

International Village, including any on-site supervisors or

managers, as well as any Henderson management

responsible for day-to-day operations at the mall, are made

aware of the public right of way through the mall;

(iii) Henderson must ensure that there is an appropriate

procedure in place for receiving and responding to

complaints the public may make about the practices and

conduct of security personnel employed by any security

service provider at International Village;

(iv)

Henderson must ensure that any person requesting a copy

of this decision or any site post orders or other directions

with respect to access to and appropriate behaviour within

the mall or the statutory right of way receives the requested

documents; and

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(v)

The parties must consult with respect to the details and

plans for implementation of the systemic remedies. In the

event they are unable to agree, they are at liberty to apply

to me within six months of the date this decision is

released, in which event I retain jurisdiction to hear further

evidence and argument and make further orders pursuant to

s. 37(2)(c).

_______________________________

Lindsay M. Lyster, Tribunal Member

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