Revisiting Campbell v. Vancouver Police Board, Six Years On

In a human rights complaint, Deborah Campbell alleged anti-Indigenous discrimination in an encounter with the police. She was walking her dogs in her neighborhood when she witnessed police arrest her 19-year-old son. The way the police treated her during that encounter was the subject of her complaint. The BC Human Rights Tribunal [Tribunal] held a four-day hearing in September 2019 to decide whether the police discriminated against Ms. Campbell.

I was appointed as a member of the Tribunal after working with Ms. Campbell on her human rights complaint for more than three years. Before my Tribunal appointment, I was a staff lawyer at a non-profit. As we geared up for the hearing, Métis lawyer Myrna McCallum joined Ms. Campbell’s team as co-counsel.

Myrna McCallum and I speak about that experience on her Trauma-Informed Lawyer Podcast, and on the Pro Bono Student Canada’s Indigenous Human Rights Podcast.

Ms. Campbell’s courage and perseverance resulted in decisions that grapple with Indigenous-specific discrimination as a systemic issue and offer guidance in proving or assessing similar complaints: Campbell v. Vancouver Police Board, 2019 BCHRT 12 [Campbell No. 1] and Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 [Campbell No. 4].

Six years later, and from the vantage point of the Tribunal, I reflect on how this case continues to shape human rights law. I begin with a summary of the case and then highlight key takeaways.

Ms. Campbell proved her complaint. Tribunal member Devyn Cousineau (now Vice Chair) made a number of observations and set out legal principles which continue to have relevance today.

In Campbell No. 1, Member Cousineau decided that the Union of BC Indian Chiefs was an appropriate intervenor in the case. In this decision, at paragraph 18, Member Cousineau:

• Said that a contextual approach to human rights complaints is especially important in complaints involving Indigenous people
• Took notice that Indigenous people are disproportionately underrepresented in complaints brought to the Tribunal, despite a long history of colonialization that continues to prejudice Indigenous people
• Confirmed that the Truth and Reconciliation Commission called on all participants in the justice sector to provide culturally competent services. This goal is advanced when the Tribunal has the fullest possible understanding of the social context in which alleged discrimination is said to arise
• Decided that the Union of BC Indian Chiefs could give social context evidence to give meaning to Ms. Campbell’s interaction with the police

In Campbell No. 4, the final decision on Ms. Campbell’s complaint, Member Cousineau set out legal principles that apply to complaints of discrimination, especially complaints about race and Indigenous-based discrimination:

1. Deliberate, open, racist attacks exist. But more commonly, people do not express racial prejudices openly or even recognize them in themselves … most complaints, like this one, turn on inference: para. 102.
2. The facts of this complaint—like many race-based complaints—can only be understood within their broader social context, and a proper understanding of that context may support a finding of discrimination: para. 105.
3. Individual acts, viewed in isolation, may be “ambiguous or explained away”, but when viewed as part of the “larger picture”—with an understanding of how racial discrimination occurs—they can support a finding of discrimination: para. 105.

Applying this framework, the Tribunal first situated Ms. Campbell’s encounter with the police within the broader social context. Member Cousineau recognized that police have played a prominent role in Canada in enforcing colonial policies targeted at Indigenous peoples. That role has contributed to the fear and mistrust Indigenous people may have when encountering police: paras. 110-112.

Member Cousineau further cited uncontroversial social context evidence that Indigenous Peoples continue to be over policed, underserved, and over-represented in the prison system: para. 111-112.

Member Cousineau also considered the alarming extent to which Indigenous children remain overrepresented in the child welfare system, the role police play in the state apprehension of children, and the particular fear Indigenous parents experience when an agent of the state, like police, interferes with their ability to ensure their children’s safety: para. 113.

Situating Ms. Campbell’s encounter with the police, and the evidence about that encounter in the broader context, Member Cousineau found that the police discriminated against Ms. Campbell as follows: 

1. The police officers in question did not demonstrate any meaningful awareness or responsiveness to Ms. Campbell’s fear, mistrust, and needs as an Indigenous mother: para. 125.
2. Instead, the police stereotyped Ms. Campbell as suspicious, a possible criminal, and a threat—instead of a mother concerned about her son: paras. 126-128.
3. Viewed through this stereotypical lens, Ms. Campbell was dragged away from witnessing her son’s arrest and threatened with arrest herself: paras. 68-73, 114, and 135. The police officers’ responses to her were disproportionate and harmful: paras. 132-139.

The Tribunal concluded that Ms. Campbell’s Indigeneity was a factor in how she was treated by the police, and the adverse impacts on her: para. 141.

More than six years have passed since I was part of Deborah Campbell’s team. We were focused on proving the connection between how the police treated her and her Indigeneity. We did not know if Ms. Campbell would prove her complaint, or what precedent it might set.

Since the final decision in Campbell was issued, it has been cited by the Tribunal, the Court, and others more than 80 times in published decisions.

Six years on, Ms. Campbell’s case continues to offer guidance to advocates and adjudicators on the legal principles that apply to complaints of discrimination, especially complaints about race and Indigenous-based discrimination.