Pierce v. Vancouver Police Board and others, 2024 BCHRT 299
Date Issued: October 24, 2024
File(s): CS-001063
Indexed as: Pierce v. Vancouver Police Board and others, 2024 BCHRT 299
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Stephen Pierce Jr
COMPLAINANT
AND:
Vancouver Police Board and Tomothy Russel and His Majesty the King in Right of the Province of BC as represented by the
Ministry of Attorney General
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
SECTION 22
Tribunal Member: Steven Adamson
On his own behalf: Stephen Pierce Jr
Counsel for Vancouver Police Board & Tomothy Russel: David T. McKnight & Naomi J. Krueger
Counsel for Ministry of Attorney General: Zachary Ansley
I. INTRODUCTION
[1] On March 18, 2020, Mr. Pierce filed a complaint of discrimination in publication based on race, colour, ancestry, place of origin, mental disability and physical disability contrary to s. 7 of the Human Rights Code [ Code ], against the Vancouver Police Board [ VPB ], VPB Detective Timothy Russel, and His Majesty the King in Right of the Province of BC as represented by the Attorney General [ AG ], [together the Respondents ].
[2] The Tribunal’s March 6, 2024, decision letter informed Mr. Pierce that the portion of his complaint made against the RCMP could not proceed because it does not have jurisdiction over federally regulated entities.
[3] The issue before me with respect to timeliness is whether to accept the Complaint against the Respondents. I make no findings regarding the merits of this complaint.
[4] For the reasons that follow, I find that the Complaint against the Respondents is late filed, and it is not in the public interest to allow it to proceed late: Code: s. 22(2) and (3).
II. BACKGROUND
[5] Mr. Pierce was born in the United States of America and describes himself as an Afro-American / Canadian. He identifies as being of Afro-American / Irish -Canadian race.
[6] Mr. Pierce lives with a diagnosis of severe Post-Traumatic Stress Disorder [ PTSD ], debilitating back injuries, heart issues and both rheumatoid arthritis and osteoarthritis.
[7] On September 18, 2015, Mr. Pierce alleges being arrested by Detective [ Det. ] Russel for violence based on a neighbour’s report that he assaulted another person. Mr. Pierce says Det. Russel sought charges against him for aggravated assault and assault with a weapon, two counts for each.
[8] On October 14, 2015, Mr. Pierce alleges he was released from custody on strict and punitive bail conditions .
[9] On September 26, 2017, Mr. Pierce alleges attending a VPB detachment to provide bodily samples with Det. Russel present. After providing the samples, Mr. Pierce alleges he walked past Det. Russel to exit and told him to “Eat a Dick Russel”, to which Det. Russel replied, “Thank you”.
[10] On October 15, 2017, Mr. Pierce reports being harassed while driving on multiple occasions by an RCMP constable in a police cruiser. He then alleges that numerous RCMP vehicles descended upon him, and he was taken into custody. Mr. Pierce alleges he was criminally charged with uttering threats to cause death or bodily harm. Specifically, he was informed that Det. Russel alleged Mr. Pierce uttered “You are fucking dead Russel” when he left the detachment on September 26, 2017.
[11] On December 13, 2017, Mr. Pierce reports being acquitted of all the charges laid against him at Det. Russel’s request in 2015.
[12] On January 12, 2018, Mr. Pierce alleges the same RCMP Constable from the mid October 2017 events arrested him without cause for dangerous driving and had his car impounded for a week. Mr. Pierce alleges the RCMP officer noted that his vehicle was “Well Known to him and all the law enforcement in the lower mainland based on the fact that Mr. Pierce Utters Death Threats to Police Officers and Assaults them.”
[13] After learning he was profiled as being a threat to police, Mr. Pierce alleges feeling terrified to leave home and no longer did so unless it was necessary. He believes the profiling of him as violent is related to him being Afro-American / Canadian and it will only be matter of time until he is shot and killed by the police in this country or the United States so long as this information remains in their system.
[14] Mr. Pierce alleges the RCMP constable included the threat to police profile information in their report to Crown Counsel. As a result, he alleges being released from custody on strict and punitive bail conditions. The constable further sought a 5-year drivers licence suspension in his high-risk driving report to the Office of the Superintendent of Motor Vehicles.
[15] On January 23, 2018, Mr. Pierce alleges the Office of the Superintendent of Motor Vehicles suspended his drivers licence for 10 months based on the RCMP’s false information about his driving.
[16] On February 15, 2018, Mr. Pierce alleges he had his drivers licence suspension overturned by the BC Supreme Court on consent of counsel for the Office of the Superintendent of Motor Vehicles.
[17] On February 23, 2018, Mr. Pierce alleges being informed that Crown Counsel had decided to stay the Uttering threats to cause bodily harm charges against him. He further alleges that a Crown Counsel representative refused to speak to him about the stay until her colleague was off the record and threatened to have him removed from the courthouse. Mr. Pierce alleges Crown Counsel later refused to respond to any of his calls or emails about removing the stay from his record.
[18] During the first half of 2018 Mr. Pierce alleges seeking the return of his recording device from the RCMP and the disclosure of evidence found on the device related to his encounters with police. He says that while the recorder was eventually returned to him, the recorded evidence had almost entirely been erased.
[19] On June 19, 2018, Mr. Pierce alleges he succeeded in having all but one of his bail restrictions removed by the Court after a hearing where it was discussed that he did not have any convictions for possession of firearms and explosives.
[20] On December 11, 2018, Mr. Pierce alleges he was arrested again for dangerous driving while sitting in the community corrections office waiting to sign in as required by his bail conditions. Mr. Pierce alleges he was paraded across a busy intersection in handcuffs, but it ended up that no charges were laid.
[21] On April 4, 2019, Mr. Pierce alleges he abandoned a judicial review proceeding he was attempting to start against the Respondents. He blames his inexperience with participating in judicial review proceedings on having to abandon the review. However, Mr. Pierce alleges the Court allowed him to initiate a civil action for damages against Det. Russel and the RCMP constable after he explained to the Court that he just wanted the nightmare to stop and the flow of false information about him threatening police to cease.
[22] On May 24, 2019, Mr. Pierce alleges the Court acquitted him of the dangerous driving charges from January 2018 after concluding he had driven in a prudent manner.
[23] On March 7, 2024, Mr. Pierce informed the Tribunal that he wished to pursue his human rights complaint so long as it did not interfere with his civil claim against Mr. Russel and the RCMP officer. Mr. Pierce noted the civil action was scheduled for a 10-day hearing starting October 1, 2024.
[24] On April 8, 2024, Mr. Pierce alleges being further “subjected to cruel and unusual treatment from law enforcement as a direct result of the incidents alleged in this complaint”. He believes that so long as the information about his being a threat to police remains in the data base of all law enforcement agencies he will continue to be harassed by police and his life will be in jeopardy.
III. ANALYSIS AND DECISION
[25] Section 22 of the Code provides:
(1) A complaint must be filed within one year of the alleged contravention.
(2) If a continuing contravention is alleged in a complaint, the complaint must be filed within one year of the last alleged instance of the contravention.
(3) If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that:
(a) it is in the public interest to accept the complaint, and
(b) no substantial prejudice will result to any person because of the delay.
[26] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62, 2003 BCHRT 39.
A. Time Limit and Continuing Contravention
[27] The complaint was received on March 18, 2020. To comply with the one-year time limit under s. 22(1) of the Code, the alleged act of discrimination had to occur on or after March 18, 2019.
[28] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child, 2018 BCCA 136 at para. 68. A continuing contravention is “ a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23; School District at para. 50.
[29] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14.
[30] Turning then to the first question identified above, I have considered when the last instance of this alleged contravention of the Code occurred. Mr. Pierce framed his complaint as publication discrimination based on his race, ancestry, place of origin, mental disability and physical disability. If I understand him correctly, Mr. Pierce alleges Det. Russel and the VPB created a police database entry about him that labels him as a person who he utters death threats to police and assaults them. It appears that this entry was created some time between Mr. Pierce’s encounter with Det. Russel on September 26, 2017, and October 15, 2017, when he learned about the database entry from the RCMP constable who arrested him that day. For the purposes of this decision, I am satisfied that Mr. Pierce has set out an allegation of discrimination concerning a publication in a database available to police organizations throughout the Lower Mainland. In this case, Mr. Peirce alleges Det. Russel decided to profile him by creating a police database entry about him uttering threats to police and assaulting police, at least in part because of his race, colour, ancestry, place of origin and disabilities.
[31] There are no other allegations concerning publication discrimination in this case. All the other allegations made by Mr. Pierce stem from the one database entry made by Mr. Russel and the VPB. Mr. Pierce describes the harm as starting on October 15, 2017, and continuing on occasions when he leaves his home. In my view, this case is a good example of one alleged act of discrimination having ongoing consequences rather than it being a succession or repetition of separate acts of discrimination of the same character. As noted above, the alleged publication became known to Mr. Pierce on October 15, 2017, and he has been living with the consequences of being profiled as a threat to police and assaulter of police ever since. All of Mr. Pierce’s later allegations are a consequence of this single database entry shared by police organizations and do not form separate publication discrimination allegations.
[32] Mr. Pierce’s complaint involves a single publication event from October 15, 2017, only. As such, his complaint is late-filed and cannot be tethered by any timely allegation of publication discrimination to form a continuing contravention of the Code: s. 22(2).
[33] Before moving on the question of whether it is in the public interest in allowing Mr. Pierce’s late filed complaint to proceed, it is necessary to determine whether he has made out any allegations of discrimination against the AG capable of proceeding. As I have determined Mr. Pierce’s publication allegations involve Mr. Russel and the VPB creating a negative profile of him in a shared police database, there is no basis for any allegations of publication discrimination by the AG in this case. Any allegations related to harms caused by the AG are only consequences of the alleged publication discrimination that occurred on October 15, 2017.
[34] It may be that Mr. Pierce is attempting to set out allegations of discrimination in the services provided by the AG where harms related to his race, colour, ancestry, place of origin and disabilities occurred. However, when reviewing the harms Mr. Pierce identified related to staying the uttering of threats to cause death or bodily harm charges and refusing to communicate with him about the decision to stay or removing the stay from his record, there is no information provided relating these harms, or any other harms involving the AG, to Mr. Pierce’s personal characteristics. While the AG Crown’s behavior may have been unprofessional or discourteous, there is nothing to indicate this behavior was related to his race, colour, ancestry, place of origin or disabilities. Furthermore, if I am wrong about allegations related to the AG existing, I am satisfied such allegations are beyond the Tribunal’s jurisdiction for reasons related to prosecutorial immunity.
[35] Having found one late filed allegation of publication discrimination against the VPB and Det. Russel, I proceed to an analysis of whether the Tribunal should exercise its discretion to accept the complaint outside the one-year time limit because it is in the public interest to do so, and no substantial prejudice will result to any person because of the delay: Code s. 22(3). I begin with the public interest determination.
B. Public Interest
[36] Whether it is in the public interest to accept the late-filed complaint is a multi-faceted analysis. The enquiry is fact and context specific and assessed in accordance with the purposes of the Code : Hoang v. Warnaco and Johns, 2007 BCHRT 24 at para. 26. The Tribunal considers a non-exhaustive list of factors, including the length of the delay, the reasons for the delay, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 [ Mzite ] at para. 53. These are important factors, but they are not necessarily determinative: Goddard v. Dixon , 2012 BCSC 161 at para. 152; Mzite at para. 55.
[37] I have first considered the length of delay in filing. Mr. Pierce’s complaint involves one allegation occurring on or before October 15, 2017, which makes the complaint well over one year late filed. A delay of more than one year is excessive and militates strongly against the public interest : Naziel-Wilson v. Providence Health Care and another [ Naziel-Wilson ], 2014 BCHRT 170, at para. 13; Mzite at para. 59.
[38] Mr. Pierce provided several reasons for late filing his complaint. First, he submits that he has mental and physical disabilities that delayed him filing. Mr. Pierce noted multiple pre-existing medical conditions, including Asperger syndrome, severe PTSD, a congenital heart defect that was cured after a surgery, two forms of arthritis and degenerative disc disease. Mr. Pierce alleges his multiple conditions were being managed until the police event in October 2017. After this event, he claims his conditions became debilitating. He submits that his ability to start his civil action, defend against traffic tickets, defend against criminal charges and make changes to his bail conditions was more a matter of luck and patience from the Courts as opposed to reflecting his ability to file a complaint.
[39] In support of his disability being a reason his delay in filing, Mr. Pierce provided medical evidence including a July 3, 2024, independent medical examination from a psychiatrist, Dr. O, that was commissioned by his lawyer in his civil action against Det. Russel and the RCMP constable. Dr. O’s report recounted prior medical evidence from Mr. Pierce’s family doctor noting ongoing anxiety and fear of leaving the house or social situations, diagnosed as agoraphobia since the incident with the RCMP constable in January 2018. Dr. O further recounted a previous suicide attempt by overdose in 2017 followed by another attempt on February 20, 2023, the latter attempt being related to stress associated with Mr. Pierce’s partner being diagnosed with dementia. Dr. O noted Mr. Pierce’s self report of PTSD and generalized anxiety disorder with agoraphobia related to his interactions with police. Dr. O also noted Mr. Pierce was taking antidepressant medication to manage his symptoms at the time of his examination. Dr. O provided a diagnosis of major depressive disorder and agoraphobia. He was unable to estimate when Mr. Pierce would recover and opined that Mr. Pierce was unable to work or attend school for reasons related to not being able to leave home.
[40] Without doubting the existence of Mr. Pierce’s pre-existing medical conditions that were exacerbated by his contact with police to the point that he only left home when it was necessary to do so, I am not convinced his various disabilities precluded him from filing a complaint with the Tribunal. The evidence indicates Mr. Pierce was able to participate in various legal proceedings in 2018 and 2019 when he needed to do so. Given his demonstrated abilities, I am not convinced that if he had prioritized filing a human rights complaint as being necessary, Mr. Pierce would not have been able to find the strength and perseverance to make it happen despite his multiple significant disabilities.
[41] Second, Mr. Pierce submits lack of financial resources hampered his ability to file a complaint in time. In particular, he noted that did not have the money to hire a representative and was turned down by free legal resources after waiting weeks for them to consider his request for assistance.
[42] I appreciate filing a complaint with the Tribunal is challenging and accept Mr. Pierce’s evidence that he was exhausted and broken. However, despite his challenges Mr. Pierce demonstrated his ability to seek redress for the alleged wrongs in the BC Supreme Court and engage with considerable success in various other legal matters during the relevant timeframe for filing, such that I am not prepared to conclude obtaining representation was his only path to filing the Complaint in time.
[43] Third, Mr. Pierce candidly admits focusing his efforts during the time for filing on his other potential avenues for redress. Engaged in a “learn as you go” mode, Mr. Pierce submits navigating the BC Supreme Court process distracted him from filing with the Tribunal as he made multiple attempts to get his court action to proceed. However, he notes that during the researching and filing of his civil claim on January 13, 2020, he still managed to learn about the Tribunal’s existence and his ability to file a complaint.
[44] Ignorance of the Code, or the time required to become aware of one’s rights, is generally not an acceptable reason, on its own, for the delay in filing: Rashead v. Vereschagin (No. 2), 2006 BCHRT 74 at para. 12; Ferrier v. BCAA, 2009 BCHRT 412 at para. 31.
[45] While appreciating Mr. Pierce’s medical conditions and inability to secure a representative made it more difficult for him to file a timely complaint, in circumstances where he was not precluded from filing and focused his efforts on other avenues of redress to address the harms alleged, I do not find that he is exempt from the general rule. Mr. Pierce focused his efforts on his other legal matters, and I am not convinced that he could not have researched the existence of the Tribunal and made a timely complaint.
[46] In determining whether acceptance of a late-filed complaint is in the public interest, the Tribunal also considers whether there is anything particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints: Hau v. SFU Student Services and others, 2014 BCHRT 10 at para. 22; Bains v. Advanced Air Supply and others, 2012 BCHRT 74 at para. 22; Mathieu v. Victoria Shipyards and others, 2010 BCHRT 244 at para. 60. Where a complaint raises a novel issue on behalf of a vulnerable group, which advances the purposes of the Code, this factor may weigh in favour of finding a public interest in accepting the complaint: Mzite at paras. 65-66. The Tribunal has considered gaps in its jurisprudence, on the one hand, and the existence of good precedents, on the other hand, in determining whether to permit a complaint to proceed: Mzite at para. 67.
[47] Mr. Pierce is seeking justice for being profiled as a threat to police and assaulter of police for telling a police officer to “eat a dick” in a moment of frustration. He asks the Tribunal to consider the ongoing negative effects related to the publication in question and the relatively short limitation period set out under the Code. The Tribunal infrequently addresses allegations of discrimination in publication and this case also engages the specific context of anti-Black racism in publication. In Umolo v. Shoppers Drug Mart, 2021 BCHRT 166 at para. 29, the Tribunal acknowledged that anti-Black racism may share themes with other forms of racism but is distinct and should be assessed within its own context. In that case, the Tribunal considered the allegations of anti-Black racism to be a factor weighing in the public interest of accepting the late-filed complaint. I agree with the reasoning and find it applies to this case. I accept that this factor weighs in favour of finding it is in the public interest to accept the late filed complaint.
[48] However, having reviewed the factors for consideration in this case, on balance, I am not satisfied that it is in the public interest for Mr. Pierce’s complaint to proceed late filed. The delay in this case is excessive and militates strongly against the public interest. Further, Mr. Pierce’s reasons for late filing do not attract any significant public interest where he pursued other avenues of redress during the relevant time for filing. While accepting there is some public interest in allowing a complaint to proceed concerning publication and anti-Black racism, in the circumstances of this case, this factor when viewed with the reasons for late filing and overall delay does not raise this case to one that should proceed despite it being late filed.
[49] Having not found that it is in the public interest to accept the late-filed complaint, I need not address the issue of whether substantial prejudice would result.
IV. CONCLUSION
[50] For these reasons, the Complaint is not accepted for filing as it is not a continuing contravention of the Code: s. 22(2) and it is not in the public interest to allow it to proceed late filed: s. 22(3).
Steven Adamson
Tribunal Member