Woman allowed to file racism complaint against Vancouver police despite narrowly missing deadline

A B.C. Human Rights Tribunal hearing room is shown in this file image from March 29, 2010. (THE CANADIAN PRESS/Darryl Dyck)

A human rights complaint alleging Vancouver police discriminated against a Black woman based on her race and sex will be allowed to proceed, the provincial tribunal has ruled.

Legislation requires a complaint to be filed within one year of an alleged contravention of the Human Rights Code – a deadline Heather Brooks-Smith narrowly missed in this case, according to the Jan. 3 decision.

The complaint against the Vancouver Police Board stems from an incident on July 5, 2022, where Brooks-Smith told the tribunal she called police for help after an “altercation with her landlord.” The allegation of discrimination stems from how she says she was treated by the officer who responded.

“Ms. Brooks-Smith alleges the VPB officer who attended stereotyped her as an ‘angry Black woman’ by initially insisting that she too was violent, despite her being the victim of an assault. She further alleges the VPB officer refused to believe that Ms. Brooks-Smith did not physically respond or ‘defend herself’ despite being told this was not the case by her numerous times and showing them a video of events. Ms. Brooks-Smith alleges the VPB officer nevertheless attributed her with being aggressive, argumentative and retaliatory in the police report,” the decision said.

“Having called the police as the victim of assault, Mr. Brooks-Smith claims she ended up being criminalized and re-victimized for reasons related to her race, colour and sex.”

At this stage in the proceedings, none of the allegations have been tested or proven. In allowing the complaint to procced, the tribunal had to decide whether to accept a late filing – which is allowed if it is “in the public interest to do so and no substantial prejudice will result to any person because of the delay.”

Brooks-Smith told the tribunal she was aware of the one-year deadline, and filed her complaint online on July 5, 2023. What she was unaware of was that any complaint filed after 4:30 p.m. is recorded as having been received the following day.

The fact that the delay was “extremely short” in this case weighed favour of accepting it, the decision said.

However, the tribunal also noted that even a one-day delay can be grounds to dismiss a complaint if “there is an inadequate explanation.”

The Vancouver Police Board argued that was the case in this instance.

“The VPB argues Ms. Brooks-Smith has not provided any reason to justify the late filing of her complaint. It notes that she has further failed to explain why she waited until just before midnight on the due date to attempt to file her complaint,” according to the decision.

“While she may have lacked awareness of the end of business day deadline, the VPB argues that ignorance of the deadline for filing does not excuse the late filing of the complaint and does not render it in the public interest to accept a late-filed complaint.”

The tribunal disagreed, finding that Brooks-Smith ultimately thought she had met the deadline and that it was reasonable for her to be unaware of the 4:30 p.m. deadline.

On the question of whether the complaint was in the public interest, the decision explains that the tribunal considers whether a case “raises a novel issue that may advance the purposes of the (B.C. Human Rights) Code.”

The police board argued this standard was not met in Brooks-Smith’s case.

“The VPB argues this case is not sufficiently unique or novel to attract the public interest. In its view, the tribunal frequently addresses allegations of discrimination involving the provision of services, particularly in the context of racial discrimination and sex,” the decision says.

The tribunal disagreed again, finding the issue of anti-Black racism – specifically – is one that previous decisions have determined is in the public interest to adjudicate.

The board told the tribunal that the “passage of time” since the events giving rise to the complaint “has resulted in the dimming of memories for those involved” and that “relevant evidence may have been lost or destroyed.”

This, the board argued, would result in “substantial prejudice” that would prevent the department’s from getting a fair hearing or decision.

That claim was also rejected.