Pivot Legal Society is located on the unceded lands of the Coast Salish Peoples, including the territories of the xwməθkwəyəm̓ (Musqueam), Sḵwxwú7mesẖ (Squamish), and səlílwətaʔɬ/Selilwitulh̓ (Tsleil-Waututh) Nations. Over the course of this project, we visited the traditional territories of many other Nations we cannot name in order to respect our commitment to keep the communities we visited confidential.
This project was made possible by AUTHORS SUPPORT FOR THIS PROJECT the 76 people who stepped forward Darcie Bennett This report was produced with to share their experiences, their DJ Larkin insights, and their wisdom. It was funding provided by the Provincial an honour to meet each and every Health Services Authority (PHSA). EDITOR one of them and to hear their stories PHSA plans, coordinates and firsthand. We would also like to thank Jackie Wong evaluates specialized health services all of the focus group participants and with BC’s regional health authorities survey respondents who contributed RESEARCHERS in order to provide equitable and to this project. We are also indebted cost-effective health care for people Noah Quastel throughout the province. In 2016, to the many frontline service Jessie Stirling providers, health care workers, PHSA contracted Pivot Legal Society and advocates across the province to undertake a research project SPECIAL THANKS TO: who took time out of their busy looking at law and policy barriers schedules to share their expertise, Nicola Aime to HIV, Hepatitis C Virus (HCV), and answer our questions, connect us Brenda Belak overdose prevention among British with participants, and host us while Chase Blair Columbians who are struggling visiting their communities. While Anna Cooper with the impacts of poverty and we cannot name you individually Karen Cooper homelessness. Project Inclusion is in order to protect participants’ David Fai the culmination of that research. The confidentiality, we are deeply grateful Olivia Gordon views expressed in this report are the for your support. Zoe Greig responsibility of the authors and are Silas Heatley not necessarily those of PHSA. PHSA Peter Kim makes no representations about Doug King the suitability of the information Katie Koncan contained in this report for any Ashra Kolhatkar purpose. Scott McAlpine Zev Moses ILLUSTRATIONS AND COVER Scott Neufeld DESIGN Madeleine Northcote Jordan Bent Asha Nygra Carly Peddle LAYOUT Celia Pinette Katrina Pacey Scott Knowles Fernande Pool Kerry Porth DESIGN Caitlin Shane Jim O’Neill Marie-Eve Sylvestre Lyndsay Watson Every legal problem is unique. The Camia Weaver legal analysis in this report is general Kaymi Yoon-Maxwell and provided for informational purposes only. If you require legal We are grateful to everyone who advice, please speak to a lawyer. contributed to this project. This project would not have been possible If you wish to reproduce a portion without you, and any errors or or the entirely of this report, please omissions in this report are the sole credit Pivot Legal Society. responsibility of the lead authors. Project Inclusion
Confronting Anti-Homeless and Anti-Substance User Stigma in British Columbia Contents
Executive Summary ...... 4 Making Stigma Visible ...... 4 How to Use this Report ...... 4 Report Summary ...... 5 About Pivot Legal Society 6 About Project Inclusion ...... 6
Introduction and Methods ...... 7 What Shaped this Work ...... 7 Pivot’s Research Approach ...... 8 Ethical and Privacy Considerations 8 Study Population ...... 9 Data Generation ...... 11 Analysis and Recommendations ...... 12 Report Overview 13
PART ONE: LIVED REALITIES ...... 14 . . . .
Section One Homelessness in Context 14 Pathways to Homelessness and the Stories we Tell ...... 15 Rational Responses to Irrational Circumstances: Moving Beyond the Stereotypes 19 Strategic Thinking, Staying Safe ...... 25 Our Laws Make It Worse 29
Section Two Substance Use in Context 31 Approaches to Understanding Substance Use—and Why We Need Alternatives ...... 31 Dope Sickness Keeps People Down ...... 32 Getting to Normal ...... 33 Pathways to Substance Use 34 Harm Reduction: We Need to Walk the Talk 36 The Solutions Exist, but Stigma Stalls Progress ...... 43
PART TWO: CHANGE THE SYSTEM ...... 44. . . .
Section One The Impacts of Police and Policing 44 Findings Related to Police ...... 45 Police Interfere with Harm Reduction Activities 46 Quality of Life Policing and Targeting People who Live in Public Space ...... 52 Racism 57 City Cells and the Drunk Tank 59 Abuses of Authority and Experiences of Violence ...... 63 Inaccessible, Ineffective Complaint Processes ...... 64 No Access to Police Protection ...... 66 A Legacy of Misconduct, A Lack of Accountability ...... 68
Section Two Everything Becomes Illegal: How Court-Imposed Conditions Set People up to Fail 73 Where Did All the Real Criminals Go? ...... 74 When Everyday Activity Becomes Illegal 75 What Results from Behavioural Conditions: An Ongoing Cycle of Criminalization ...... 84 Paraphernalia Prohibitions: All Harm, No Good 89 Abstinence Conditions Set People Up for Failure ...... 91 Red Zones Exile People from Life’s Necessities 95 No Safety in Exemptions or Variations ...... 99 Bad Data Causes Real Harms ...... 99 Bill C-75: Law Reform and Uncertainty 100 Final Words: Conditions Don’t Correct Behaviour—They Put People at Risk ...... 101
Section Three No Access, No Support: Service Gaps and Barriers 104 Stigma Cuts People off from Basic Necessities, Public Resources ...... 105 Three Focus Areas: Income Support, Shelters, Hospitals ...... 105 Neoliberalism in Context: How BC Waged a New War on the Poor ...... 106 A Project of Exclusion: Income Assistance in BC ...... 107 Shelters ...... 109 Hospitals ...... 114 The Need for Peer-Driven Services ...... 116
PART THREE: MAKING STIGMA VISIBLE ...... 119
Why a Stigma-Auditing Process Matters for BC ...... 119 . . . What is Stigma? ...... 120 Stigma in Law and Policy ...... 124 Auditing for Stigma 125 Executive Summary
MAKING STIGMA VISIBLE to them that their experiences and and serve to perpetuate it. This By centring and amplifying the their visions for change held value. report offers that analysis alongside voices and experiences of people Many individuals shared that they actionable recommendations for most affected by BC’s homelessness had instead been shown, over the change. crisis and drug policy crisis, Project course of their lives and through Inclusion identifies the legal, policy- ongoing interactions with police, HOW TO USE THIS REPORT other residents of their communities, related, and other structural barriers Project Inclusion consists of three and even some health care workers, that must be addressed in order to parts that aim to: meaningfully prevent opioid-related that their homelessness and their • provide context for the deaths and other health and safety substance use defined them and experiences and perspectives harms, particularly among people resulted in them being treated as of people experiencing who are experiencing homelessness unworthy of respect and dignity. homelessness and people who and people in deep poverty who use These two markers seemed to be use substances while living in substances. used by others to justify their daily experiences of violence, racism, poverty; Project Inclusion is the culmination of theft, threats, and ostracism. • lay out the study’s main findings, over a year of research by Pivot Legal which connect policing, court- Project Inclusion study participants Society lawyers and researchers, who and police-imposed behavioural described a diversity of life travelled to ten communities across conditions, and the provision experiences with researchers, yet BC’s five regional health authorities. of essential services with the the commonality of experiences Working from the perspective that perpetuation of stigmatizing that transcended geography and people are experts in their own practices that make people demographics was striking. In every lives and hold powerful visions for vulnerable to opioid-related community that researchers visited, change, the Pivot team interviewed harms and other health and stigma was the unifying thread that people about their experiences of safety risks; and homelessness, with accessing harm shaped people’s lives. • map out a new approach for reduction and health care services, Stigma disqualifies people and groups addressing the ways in which with the criminal justice system, from social acceptance and social stigma shapes legislative agendas and with accessing services such equity. Stigma is powerful because and becomes embedded in as income assistance, shelters, and it is not always easy to quantify. By law and policy, by offering an hospitals. shedding light on the experiences approach to operationalizing a For many people who participated and voices of people who are told stigma audit process for BC. in Project Inclusion, the interviews that they don’t matter because their Each section may be read on its marked a new experience. No matter lives and identities are stigmatized, own. The three subsections on where Pivot researchers travelled, Project Inclusion makes stigma policing, court- and police-imposed people shared, again and again, that visible. The project aims to address behavioural conditions, and service they had seldom been asked about stigma’s root causes by offering provision conclude with a set of their lives in a way that suggested analysis of how laws and policies in BC are both shaped by stigma concrete recommendations for how
4 Pivot Legal Society to practically address the concerns use substances and challenges participants share about the related to stigmatization, access conventional approaches to actions of quasi-policing bodies barriers, and criminalization emerging substance use rooted in stigma, such as bylaw officers and private from participants’ contributions. approaches that persist to the security guards. detriment of the health of people who use substances and public REPORT SUMMARY The second section of Part Two, health at large. This Part focuses Part One of this report, Lived Everything Becomes Illegal: on contextual factors impacting Realities, provides context about Behavioural Conditions and substance use and homelessness. the everyday experiences of study the Court System, explores the It sets the stage for Part Two of participants, who are largely people impact of police- and court- this report, which analyzes the experiencing homelessness and imposed behavioural conditions criminal justice and social service people who are criminalized as a on the lives of people who use systems impacting the health and result of substance use. The aim is to substances and live in poverty. human rights of people who use help readers understand the realities Behavioural conditions are substances and people living in of homelessness and criminalization police- or court-imposed rules poverty. due to substance use in a grounded that people involved with the way that centres the voices of people Part Two of this report, Change the criminal justice system are with lived experience. System, consists of three sections obliged to follow. Conditions are that lay out Project Inclusion’s study often imposed before a person has been convicted of a crime. Section One, Homelessness in findings. It focuses on systems that They include geographic area Context, confronts pervasive, participants identified as those that restrictions (red zones), curfews, stigmatizing popular myths about most profoundly impact their health, and rules that oblige people to homelessness that shape public safety, and sense of inclusion. It abstain from using substances and policy and impact the everyday provides analysis of the laws, policies, prohibit them from carrying harm lives of people experiencing and institutional practices that play reduction supplies. Breaching a homelessness. This section sheds out in people’s everyday lives and condition puts a person at risk light on the constrained choices offers a vision for change. of criminal sanction. Project with which people live. Through Inclusion participants shared the voices of study participants, The first section of Part Two, how behavioural conditions fail it shows how BC’s housing crisis Impacts of Police and Policing, to acknowledge the realities and plays out in small municipalities, examines the impact of policing complexities of the lives of people suburban communities, and institutions, bodies, and practices experiencing homelessness and rural areas. While many residents on the lives of Project Inclusion people who rely on substances. of the urban centres on BC’s study participants. The findings The result is that behavioural south coast believe that housing demonstrate how policing conditions—often justified as is more affordable elsewhere practices directly and indirectly working in the interest of public in the province and therefore lead to negative health outcomes, safety—endanger the health, homelessness is less of a problem opioid-related harms, and safety safety, and dignity of people outside in smaller communities, issues for study participants. already living with intersecting Project Inclusion participants Across the province, participants barriers, making them less safe show that an ongoing struggle shared their experiences with and keeping them trapped in to find safe, affordable housing harassment, displacement, cycles of criminalization. exists across BC. That struggle is threats, racism, and violence at made worse by law and policy that the hands of police and policing criminalizes, marginalizes, and institutions. Participants explained The third section of Part Two, stigmatizes people experiencing how police disrupt harm reduction No Access, No Support: Service homelessness. activities and basic survival Gaps and Barriers, sheds light activities in ways that undermine on how stigma is embedded in the fabric of health and social Section Two, Substance Use in their health and safety. Across all services in a way that undermines Context, considers substance use policing jurisdictions, we found public health, perpetuates from an intersectional perspective that participants share an extreme criminalization, and in some that centres the aspirations, distrust of police, and are reluctant cases, leads to human rights self-determination, and liberation to call upon them when their violations. Decades of de-funding of people who use substances safety is at risk or when they are and the resulting privatization and are experiencing poverty. a victim of a crime. This section of services for people who This perspective amplifies the also considers the shortcomings live in poverty have created a experiences of people who of current police oversight mechanisms and the concerns patchwork system of service
PROJECT INCLUSION 5 delivery across BC. The number beliefs and attitudes, and examines the stigma that continues to and types of services available, the systemic processes through endanger the lives of people who use rules for clients, and oversight which stigma can shape legislative substances. BC’s opioid crisis and the standards vary arbitrarily from agendas and become embedded stigma underpinning it highlight the location to location. Although in laws and policies. A case study urgency of Project Inclusion. there are many excellent service in this section is designed to help providers in the province, there readers identify stigma in the political Pivot’s team of researchers and are too few safe drop-in services, process. lawyers travelled across BC between shelter spaces, health services, March and October 2017 to conduct and advocacy services that meet ABOUT PIVOT LEGAL SOCIETY interviews and gather data for Project the most basic needs of people Inclusion. The team conducted Pivot Legal Society is a human living in poverty. The design of one-on-one interviews with 76 rights organization headquartered in services often fails to reflect people living at the intersection of Vancouver’s Downtown Eastside. Its the realities and complexities a province-wide housing crisis and mandate is to use the law to address of living in poverty and using public health emergency. They also the root causes of poverty and social substances. In this section, Project convened six focus groups with exclusion. By making the most Inclusion study participants people who use substances and live tangible violations of human rights describe pronounced barriers to in poverty, in addition to conducting the focal point of our efforts, we exert accessing income assistance and interviews and surveys with over 100 maximum pressure in order to shift to accessing shelters. They also service providers working across BC. society toward greater equality and share experiences of racism and inclusivity. Participants’ stories brought the stigmatization when accessing human toll of these crises to light hospitals, experiences that and helped Pivot’s team better harm and hurt them while they ABOUT PROJECT INCLUSION understand where laws, policies, and are seeking safety and health Project Inclusion looks at law and collective belief systems are failing supports. The section examines policy barriers to overdose, Human people experiencing homelessness the critical role that peer-run Immunodeficiency Virus (HIV), and and people who use substances. services and peer advocates can Hepatitis C Virus (HCV) prevention Participants also illuminated those play in improving inclusion and among people across the province rays of hope where a particular access to essential services, and who are struggling with the impacts program, policy change, or service the need for more such services of poverty and homelessness. The provider is making a tangible across BC. work started in 2016, the same year difference. that BC’s Provincial Health Officer Part three, the final section of the declared a public health emergency Most importantly, the people we report, is Making Stigma Visible. in response to a mounting opioid heard from provided critical insight This closing section considers crisis. The next year, while interviews into how we might chart a path the path forward, which includes for this project were underway, towards healthier, more inclusive Project Inclusion’s overarching BC’s annual death toll from drug communities, where a toxic drug recommendation to introduce a new overdoses hit 1,450. At the time of supply is no longer claiming lives and tool to audit for stigma in BC’s laws, writing, there had already been 878 where everyone has a place to call policies, and provision of services. drug overdose deaths in the first home. Stigma is the unifying phenomenon seven months of 2018.1 These deaths that underlies all of the issues raised illustrate the need for a new approach Project Inclusion is the culmination in this report. Making stigma visible to policy and legal intervention of Pivot’s research and, most renders it possible to change the led by the experiences of people importantly, an account of the systemic processes that hold up impacted by the crisis. It requires the insights and experiences of the and entrench it. This section brings implementation of evidence-based people most affected by the laws and forward an analysis of stigma that solutions that will be made possible policies that need to change. goes beyond confronting personal only by simultaneously addressing
1 British Columbia Coroners Service, “Illicit Drug Overdose Deaths in BC January 1, 2008 – July 31, 2018”, (22 August 2018), online: https://www2. gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/deaths/coroners-service/statistical/illicit-drug.pdf.
6 Pivot Legal Society Introduction and Methods
WHAT SHAPED THIS WORK In the spring of 2016, BC’s Provincial Health Officer declared a public health emergency in response to a province-wide opioid crisis that killed 993 British Columbians that year.2,3 That same year, Pivot Legal Society, a human rights organization located in Vancouver’s Downtown Eastside, undertook a research project looking at law and policy barriers to overdose prevention and other harm reduction initiatives among people across the province who are struggling with the impacts of poverty and homelessness.
Between March and October 2017, Pivot lawyers and researchers travelled to ten communities across BC’s five regional health authorities. Participants’ stories brought the towards healthier, more inclusive We conducted one-on-one interviews human toll of these crises to light communities, where a toxic drug with 76 people impacted by the and helped us better understand supply is no longer claiming lives, and intersection of BC’s housing crisis4 where our laws, policies, and where everyone has a place to call with the public health emergency. We collective belief systems are failing home. also conducted six focus groups with us. Participants also illuminated rays people who use substances and live of hope, where a particular program, Project Inclusion is the culmination in poverty, as well as interviews and policy change, or service provider is of Pivot’s research. While it does not surveys with well over 100 service making a tangible difference. do justice to all of the insights and providers working in every corner of experiences that participants shared the province. Most importantly, the people we with us, it does provide a glimpse of spoke to provided critical insights their vision for a more just and more into how we might chart a path inclusive province and offers concrete
2 Throughout this report we use the terms “opioid-related deaths” and “opioid crisis” recognizing that people who rely on illicit markets for stimu- lants are also at risk in this crisis due to a contaminated supply. 3 British Columbia Coroners Service, “Illicit Drug Overdose Deaths in BC January 1, 2008 – July 31, 2018”, (22 August 2018), online: ttps://www2. gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/deaths/coroners-service/statistical/illicit-drug.pdf. 4 BC Non-Profit Housing Association and M. Thomson Consulting, “2017 Homeless Count in Metro Vancouver”, (2017), online: http://www.metro- vancouver.org/services/regional-planning/homelessness/HomelessnessPublications/2017MetroVancouverHomelessCount.pdf.
PROJECT INCLUSION 7 ways that law- and policymakers in Business Improvement Association be used to identify an individual BC can begin the hard but critical contracts the security guard or that participant. The names of community work required to bring that vision to the industry is regulated through the service providers, police officers, and life. provincial Security Services Act.6 medical professionals have also been redacted. Since some participants PIVOT’S RESEARCH APPROACH Our intention is to present an come from communities of less than analysis that begins to bridge the 10,000 people, we also decided to Pivot approaches all of its work from gap between the experiences of keep the names of the communities the perspective that poverty and individuals in their everyday lives that we visited confidential and social exclusion are not inevitable. and the broader legal and regulatory redacted place names and other Pivot is committed to building systems in which those experiences information that could be used to partnerships with marginalized are embedded. identify communities. people and grassroots organizations to challenge legislation, policies, ETHICAL AND PRIVACY Stipends and practices that undermine CONSIDERATIONS human rights, intensify poverty, and At Pivot, we believe that people perpetuate stigma. All individuals and focus-group with lived experience are experts members who took part in Project with valuable insight and knowledge We believe that people are experts Inclusion were walked through to share. We, as researchers, were in their own lives and hold powerful an informed consent process. paid for our time. In most cases, visions for change. By placing the Participants were given the option the service providers and other stories, experiences, and vision of of signing the consent form with professionals we met with for people who have been marginalized a pseudonym and were also given the project were also being paid. and excluded in their communities the option of providing contact Therefore, we always compensate at the centre of this research, we information if they were interested study participants for their time with endeavour to amplify their voices in getting updates on the project. a stipend. We make it very clear that and perspectives. We also have Participants were all informed the stipend is in no way contingent a second goal in centring these that signing the consent form did on answering specific questions or voices in this analysis: working from not obligate them to answer any spending any specified amount of the perspective that all knowledge particular questions and that they time with the interviewer. We also is socially situated, we take the could withdraw their consent at any provide a snack and other comfort position that marginalized groups time prior to the report going to print. items, such as cigarettes and coffee. are positioned in ways that allow them to see contradictions and raise Confidentiality Use of Data questions that might not otherwise As part of our data generation for emerge.5 Therefore, we believe that Participants were informed that data this project, we asked people we research aimed at developing law and gathered would: were meeting for the first time to policy reform recommendations to share highly personal and sensitive • form the basis of law and policy solve complex social and economic information with us. It was a priority recommendations; challenges must begin with the for us to maintain their confidentiality • be published in a report, and in perspective of those most directly through every step of Project policy briefings; impacted. Inclusion. All data collected for this • be used in Pivot communications The spectrum of laws and policies project is stored separately from to the public and our supporters; shaping a person’s experience is not participant contact information. • possibly be published in always fully visible from where they Raw data generated through this academic literature; stand. For example, when a person project is restricted to project experiencing homelessness describes staff, contractors, and volunteers • inform government advocacy a negative interaction with a private who require access for project initiatives; purposes and who are subject to security guard who insists they move • be used as the basis for a confidentiality agreement not to along with their belongings, that community education resources; disclose information gathered in the participant has important knowledge and about the impact of security patrols course of their work on this project. on people’s daily lives, and on • inform Pivot’s work planning. Throughout this report, quotes will potential alternatives to current be attributed using an interview Any future use of the data collected practices. In some cases, however, number. We have also redacted will be subject to the same that person may not know that a local any ancillary information that could confidentiality requirements outlined
5 See e.g., Dorothy Smith, Institutional Ethnography: A Sociology for People (Lanham: Rowman Altamira, 2005) for a full discussion. 6 SBC 2007, c 30.
8 Pivot Legal Society above and will be used only for the of time in each municipality and the the ages of 30 and 49. Opioids purposes outlined in this document. reality that the people we hoped and amphetamines were the most to speak with have busy, often commonly used substances in the STUDY POPULATION unpredictable lives, we had to be 30 days preceding the interview, and flexible in our sampling process and the majority of respondents had used In the broadest terms, we wanted to adapt to the reality that presented more than one substance during that hear from people over the age of 18 in each community on the day we time period. Less than eight percent who are marginalized based on “social arrived in town. We also recognized of participants had housing at the condition,”7 especially where social that setting up interviews for a time of the interview. condition intersects with criminalized specific time slot would not work well substance use. Beyond that, the for many of the potential participants question of who participated in our Limitations and Gaps in Study in this study, nor would it allow for study was informed by our interest Demographics adequate flexibility in the length of in understanding HIV, HCV, and We missed many groups of people interviews. overdose risk. It was also informed who would likely have had specific by our discussions with local service Our recruitment method varied and valuable information to share in providers about the unique issues, across municipalities. In some this study. dynamics, and demographics in their municipalities, we arrived in town and By design, we did not speak to people community. there was a lineup of people ready whose mental health precluded them to speak with us. In those cases, A predetermined set of inclusion from giving fully informed consent we worked with service providers and exclusion criteria for study on the days we were in town. well acquainted with their local participants would have done this However, we spoke to many people community to do rough, purposive project a disservice. For example, who identified as having mental sampling, a qualitative research during the study design phase, we health issues, either diagnosed or method that helped us researchers might have created criteria that undiagnosed. quickly assemble a targeted sample would have excluded people who that reflected our research goals by do not use illicit substances. An We set our minimum age for intentionally selecting participants important thing we learned from participation at 18 because of with the aim of reflecting local this study is that using a substance ethical concerns related to informed demographic diversity. In other that is illicit is not the same thing as consent and confidentiality in light communities, however, we had to criminalized substance use. In some of the duty to report a child in need seek people out in public space, communities, people who drink of protection under section 14 of which impacted our ability to ensure alcohol and live in public space have the Child, Family, and Community that there was a representative 9 experiences that closely mirror those Service Act (CFCSA). The majority demographic mix in our sample. of study participants who use illicit of our participants were well over 18. opiates and stimulants. This example We believe there is a need for further illustrates that alcohol use can be Demographic Picture examination of specific experiences, criminalized as a result of intersecting We conducted 76 one-on-one perspectives, and needs of youth and barriers impacting the user’s life, interviews8 and collected basic young adults who are criminalized even though alcohol itself is not an demographic information as well and marginalized based on social illicit substance. It was important as information about current condition and substance use. for us to capture this nuance in our housing status and substance use. We did not offer interpretation for work because the criminalization of Thirty-eight percent of participants interviews. As a result, all interviews substance use very much informs self-identified as Indigenous. Fifty- were conducted in English, with the lived experiences of study one percent of participants self- the exception of one that was participants. identified as men, and forty-six conducted partially in French percent self-identified as women because the interviewer was able to (the remaining participants did not Connecting with Participants accommodate that request. We did identify their gender). Participants We worked with local service not attempt to recruit non-English were between 20 and 61 years of providers to determine the best days speaking or deaf participants because age at the time of the interview, with and times to visit their municipality. we would have been unable to offer 63% of participants falling between Even so, given our limited amount interpretation services. We know that
7 Social condition is defined in various ways in provincial and territorial human rights legislation throughout Canada. For the purpose of this study, we define social condition as: Inclusion in a socially identifiable group that suffers from social or economic disadvantage on the basis of poverty, source of income, occupation, housing status, level of education, or any other similar circumstance. 8 Three interviews were conducted with couples because they were more comfortable being interviewed together. The interviews were coded separately by speaker and are referenced as #a and #b throughout the text rather than simply by number. 9 RSBC 1996, c 46.
PROJECT INCLUSION 9 DEMOGRAPHIC PICTURE we missed people as a result of lack of interpretation. One person who spoke very little English expressed AGE RANGE OF PARTICIPANTS Unreported: 2 a desire to participate, and we 25 were unable to accommodate that request. 20 We also recognize that none of our 15 participants identified as trans, non- binary, genderqueer, or Two-Spirit. COUNT 10 24 24 This is a gap in our study sample and we believe that further specific 5 research is required to explore 16 the intersection between poverty, 4 3 3 0 substance use, and gender identity. 18–25 26–29 30–39 40–49 50–59 60–69 Study Locations PARTICIPANT GENDER At Pivot, geography has always been core to our identity. Our organization was born and raised Self-Identified Women (35) in Vancouver’s Downtown Eastside (DTES) in the midst of the public Unreported (2) health emergency that was ravaging the neighbourhood in the 1990s and Self-Identified Men (39) early 2000s, when the widespread use of intravenous cocaine fueled a fatal HIV epidemic that swept the neighbourhood.10 Over the years, we have increasingly received calls from communities outside of our home neighbourhoods, because while the SUBSTANCES USED IN PAST 30 DAYS DTES is linked with poverty, illicit substance use, and homelessness Amphetamines 41 in BC’s popular imagination, none of those issues are bound by geography. Opioids 41 However, geography does have a Alcohol 26 profound impact on how people experience those issues, and how Cocaine 26 they are integrated in the broader community in which they live. Opioid Substitution Treatment 19 Whenever Pivot has taken on work outside of Vancouver, we have 0 5 10 15 20 25 30 35 40 45 seen these local particularities at play. However, until we embarked HOUSING STATUS on this project, we had not had the opportunity to replicate the kind of structured deep listening that informed our DTES work in other communities around the province.
As we began this project, a crucial Shelter (29) Outside/Car (26) fact quickly emerged: BC is a large Unassigned (8)
Couchsurfing (7) province. As a result, deciding which
10 For an overview of the situation, see e.g., Housed (6) Travis Lupick, Fighting for Space: How a Group of Drug Users Transformed One City’s Struggle with Addiction (Vancouver: Arsenal Pulp Press, 2018).
10 Pivot Legal Society contacts. The results of the survey Our systems for securing the basic necessities of helped us surface issues for further life—income, food, shelter, health care, psychological investigation, highlighted similarities and differences across regions and support—are not equitably distributed nor consistently service provision contexts, and administered across the province. allowed us to develop a network of allies in municipalities around the province who were interested in the municipalities to visit became one of is a real shortcoming. As you read project. We also conducted reviews the most important decisions we had this report, you will see just how of bylaws and demographics in 62 to make early in the research design big a difference one innovative BC municipalities. Those processes phase of the project. organization, dedicated service helped us identify thematic issues for provider, or highly knowledgeable inquiry, and to locate communities Because we produced this report legal advocate can make in people’s to visit to conduct one-on-one with a focus on public health— lives. interviews and focus groups. specifically HIV, HCV, and overdose risk—the province’s five regional It also drives home an important Once communities had been health authorities offered a point: our systems for securing selected, we interviewed 76 individual fitting framework for selecting the basic necessities of life— participants. When we set off around municipalities to visit. However, income, food, shelter, health care, the province for this project, we were choosing two municipalities in each psychological support—are not apprehensive about asking people to health authority still meant that equitably distributed nor consistently tell their stories and to share intimate huge swaths of the province would administered across the province. details of their lives with strangers inevitably be left uncovered. We had who had just parachuted into their to set some criteria for determining DATA GENERATION municipality. which municipalities to visit. Working across BC, we: People did have a lot of questions We decided to choose a larger • sourced input from 119 service about who we were and what our and smaller municipality in each providers; business was. The vast majority region. From there, to begin to of respondents had never heard • reviewed bylaws and ground ourselves in local realities, of Pivot Legal Society. But in most demographics in 62 we conducted an audit of HIV and communities, people were eager to municipalities; HCV rates, overdose death rates, share their stories. Aside from a few homelessness rates, and local • interviewed 76 study participants; exceptional local service providers, bylaws. We also reached out to • convened six focus groups; no one had ever really asked. Some service providers through an online respondents told us that even though • conducted 12 municipal media survey to determine where there talking about the hardships in their scans; were local service providers who lives was painful, it was also cathartic. would be willing and able to work • conducted nine Freedom of More importantly, participants with us on setting up a community Information requests; wanted their experiences and visit. • gathered data from BC’s five expertise to be heard and understood regional health authorities; and by people beyond their local setting. • travelled to ten communities Participants were free to spend as In most communities, across the province. little or as much time with us as they wanted. As expected, there were people were eager to As noted above, this is an exploratory share their stories. Aside a couple of rushed interviews, but study. We began by collecting most people sat with us for at least from a few exceptional preliminary data from a variety an hour and many spent several local service providers, of sources before we identified hours sharing their histories, their no one had ever really research sites and developed perspectives, and their expertise. our interview template. Over the asked. We wish we had the time and space course of the preliminary research to share everything that we learned phase of the project, 119 service through those interviews, and we providers from across the province recognize that anonymized snippets That leads us to another limitation provided input by way of online on a page cannot fully capture the of this study: we didn’t get the survey. The online survey was wisdom that participants in this opportunity to talk to people in distributed through provincial project shared. some of the most under-resourced umbrella organizations, existing communities in the province. That online networks, and our internal
PROJECT INCLUSION 11 What we can do is ensure that we relevant quantitative data sets, policy we got back to Vancouver and began honour the generosity, openness, documents, social scientific literature, to review aggregated data, we found and vulnerability that participants expert interviews, and legislation. so much overlap that we often could brought to this project by privileging not tell which municipality a specific their firsthand accounts of their A key goal in producing this report story came from, despite having experiences living in public space, is to share stories and unique expert been the ones who conducted the interacting with police and the knowledge that is often ignored, interviews in the first place. criminal justice system, and while connecting those stories attempting to access health care and to broader policy objectives. This other services in the limited space analysis seeks to lay out a path to we have available. In this report, cross the chasm between our vision We found an we privilege participants’ firsthand (preventing HIV and HCV infections, unprecedented level accounts over in-depth legal and reducing stigma against people who of commonality across policy analysis. use drugs and live in public space, and preventing overdose deaths) participants’ narratives, and the lived experiences of study despite the fact that participants. people often believed their experiences to be A key goal in producing Pivot will use the resulting road this report is to share map to illuminate laws, policies, and the result of something stories and unique practices that are structural drivers of unique and intrinsic to expert knowledge HIV and HCV, opioid-related deaths, their community. that is often ignored, and stigma. while connecting those This report is not a complete account of everything we heard stories to broader policy Some of the issues that floated to from participants; the sheer objectives. the surface during the analysis phase volume of data collected made that of this project fell squarely within impossible. It is important to note our collective areas of expertise that the issues and stories that at Pivot and dovetailed with our have made it into this report are We also conducted six focus groups existing policy work. In those cases, not necessarily the ones we found where the number of people wanting it was reasonably simple for us to most shocking or sensational. The to participate, the desires of the “trace up” to the laws, policies, and issues covered in this report are the participants, or specificity of an issue institutional practices that are leading ones that came up again and again, we wanted to learn more about to the negative outcomes people no matter where we went or who warranted a group discussion. On top described and we were able to be we spoke to. In some cases, local of that, we completed 12 municipal quite specific and prescriptive in our governments, policing bodies, or media scans looking at community recommendations. service providers have developed narratives related to people who idiosyncratic responses to commonly are homeless and people who use Other issues took us into new perceived “social problems” that substances. We also conducted territory, but, based on the warrant mention. There are also policy reviews, including an analysis preponderance of data, they were cultural and demographic differences of data collected through nine impossible to ignore. In those cases, among the provincial health regions Freedom of Information requests.11 we have done our best to draw that informed the experiences and on outside expertise. In some of perspectives of participants. ANALYSIS AND those cases, our recommendations begin with a call for the responsible RECOMMENDATIONS We found an unprecedented government body to undertake a level of commonality across Our analysis aims to link people’s review or an audit of their own so participants’ narratives, despite everyday experiences to the laws and they can get a clearer picture of what the fact that people often believed policies that shape them. Developing is going on in the province and move their experiences to be the result the findings and recommendations toward positive change. in this report involved several stages of something unique and intrinsic of structured analysis of interview, to their community. Often a single In crafting our recommendations, survey, and focus group data. police officer, service provider, or we operated from the perspective Analysis of primary source data local politician was held out as the that the government actors and was supplemented with reviews of source of the challenges people were professional bodies we call upon to facing in their lives. However, when
11 FOIs were sent to several police forces, several municipalities, the College of Physicians and Surgeons, the College of Pharmacists, and BC Court Services.
12 Pivot Legal Society take action share most, if not all, of REPORT OVERVIEW bylaw officers and private security our project goals: guards. This section examines the Part One: Lived Realities • eradicating HIV and HCV in BC; impact of policing institutions, Part One of this report provides bodies, and practices on the health, • preventing opioid-related deaths contextual information about the safety, and human rights of people and eliminating the toxic drug lived experiences of people who took who took part in this study. We also supply; part in this study. The first section, look at access to police protection • improving public safety for Homelessness in Context, explores and the shortcomings of current everyone in our communities; the issue of homelessness. It sheds oversight mechanisms. light on the everyday experiences of • ensuring that everyone has equal The second section, Everything access to police protection; people sleeping in public space, in vehicles, or in emergency shelters in Becomes Illegal: Behavioural • ending the over-incarceration of municipalities across BC. Conditions and the Court System, Indigenous people, people aging examines the role of police- and out of the child welfare system, The second section of Part One, court-imposed behavioural people who use substances, Substance Use in Context, explores conditions on the health and people living in poverty or the daily experiences of people in safety of project participants. We homelessness, and people living poverty who use substances, with a pay particular attention to area with mental illnesses; particular focus on contextual factors restrictions (generally known as “red zones”), abstinence conditions, and • ensuring that people who are that impact substance use. conditions that prevent people from currently living in public space are Part One helps set the stage for Part carrying harm reduction supplies. as safe as possible, while moving Two, which explores the systems that quickly to end homelessness; impact the health and human rights The third section, No Access, • upholding Charter12 values and of study participants. No Support: Service Gaps and BC’s Human Rights Code; and Barriers, examines some of the most pronounced service barriers • ensuring that evidence—not Part Two: Change the System experienced by people who took part stigma—is driving law and policy Part Two of this report analyzes some in this study. While there were many in BC. of the social service and criminal places where people felt excluded justice systems that are negatively We feel compelled to mention that from access to the basic necessities impacting the health, safety, and of life, three areas rose to the top: we have no illusions that any report, human rights of project participants. on its own, will lead to social change. income assistance, shelters, and This report is a starting point for our In some cases, our analysis allowed hospitals. We also look at the critical work, not its culmination. us to look at how systems played out role that peer-run services and peer on the ground in people’s everyday advocates can play in improving Pivot will use the resulting road lives and trace them up to the laws, inclusion and access to essential map to continue to shine a light on policies, and institutional practices services. laws, policies, and practices that are that are shaping those experiences structural drivers of HIV and HCV and impacting people’s health, safety, Part Three: Making Stigma Visible infections, opioid-related deaths, and and human rights on a grand scale. Part three of this report considers other harms. We will invite people Each section of Part Two includes the path forward. We begin with across BC to listen to the voices of a series of law and policy reform a summary of the substantive project participants in an effort to recommendations. recommendations coming out of combat stigma. We will share our each of the three focus areas from findings with the professionals and The first section of Part Two,Impacts Part Two. Then, we provide a global decision-makers who have power to of Police and Policing, explores police recommendation: the development make change. We invite everyone as an institution, as well as policing of a tool to audit for stigma in our who reads the stories contained in practices, including those carried laws and policies. this report to join us in this work. out by quasi-policing bodies such as
12 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c 11.
PROJECT INCLUSION 13 PART ONE: LIVED REALITIES Section One Homelessness in Context
It’s trial and error and a lot of lonely nights. I’ve slept in the dog kennel with a tarp over it, and had locked myself in with two dogs in a shitty little kennel with a garbage bag over it, because that’s all I had. I didn’t have a tent. I didn’t have anywhere. – 362
A couple of years ago, this we might be arrested for leaving our fall on her head. To her, that’s safer participant—a Métis woman in her laundry on the floor. than worrying about being robbed or thirties—had a house, three jobs, assaulted while sleeping somewhere custody of her children, and some This woman spoke of a time she was more exposed. Some nights, that’s pet fish. Now, save for a handful of released from jail into a driving winter what safety and a place to sleep essentials, “I have nothing,” she says. rain with “no shoes, bare feet, a tank look like for her, but all the while she “Maybe a suitcase of clothing and top, and jeans.” Cold and wet, her worries about keeping herself and her a tent.” She is relatively new to life options were slim. She told us how dog quiet, afraid she’ll be arrested. on the streets, and we learned a lot she weighed her options in a sea of Jail is no treat either. from her about what it means to be a tough choices. woman without housing. Even so, she admits sometimes That is when you make an she wonders if being in jail might We all make choices to keep educated decision to break be better than being on the streets ourselves safe every day. Some the lesser of two evils and go some nights. of us do so with the privilege and and change your clothes in the advantages of money, family, a door thrift store and leave your old It starts to look actually good. to lock, and police who will believe us ones behind. It’s technically an At least when I was sitting in if we call for help. This woman makes exchange. And really if that’s the city cells, I could go to sleep. I her safety choices starting with only choice you have, I mean if know I’m going to have coffee completely different resources. there’s one of those blue or red and breakfast in the morning no donation bins, we will all take matter how shitty it is. I know no When our research team woke up that over going into a store. And I one is coming to get me. I’m safe. the morning of our trip to meet her, mean, like I said, I’ve slept in them – 362 we both rolled out of bed in our [a clothing donation bin] with my respective homes, petted a cat (or dog. It’s safe. – 362 This woman, like many others dog as the case may be), and went experiencing homelessness across about the business of dressing in dry, “It’s safe.” Crawling into a clothing BC, makes difficult choices every clean clothes, making a coffee, and donation bin meant her biggest day to protect her safety. She does preparing for the day. Neither of us worries were someone cutting open so in all kinds of weather, regardless spared a thought for our personal the bin with bolt cutters to access of how she’s feeling, and with few safety, worried that our belongings the clothing inside or, more often, alternatives. She knows it can be hard were stolen while we slept, or feared someone donating books that will
14 Pivot Legal Society for people who’ve never been in her simple and complex. They are ostracize people who are homeless situation to know what that feels like. simple because homelessness while accomplishing little in working can be traced to a lack of housing towards systemic changes necessary Another day, in another town, options for people who need them. for producing solutions. stepping past a sandbag, one of us They are complex because we have sat on a curb with an elderly man built our cities and systems in ways Blaming people who experience who told us how flooding had cleared that exclude housing for people homelessness for their choices some homeless camps close to the who are homeless.13 Additionally, and circumstances is nothing new. water and made it hard even to find and importantly, we as a society Doing so, however, ignores the ways a dry doorway to take refuge in. We weave powerful narratives about that the experience is systemically had considered canceling our trip who these people are and why they and societally driven. It reduces because of flooding. We did cancel are homeless. Those stories are the experience of homelessness one trip due to forest fires. The fact often rooted in stigma, shame, and to a story of personal choices and that we had the choice to opt out, moral judgements that do much to circumstances rather than as the while others lived through the fires result of socio-economic forces and floods of 2017 with no housing and few options to find safety is haunting.
By placing the lived experiences of the people who participated in this study into the larger legal and social context that shapes their experiences, our goals for this chapter are to shed light on the daily life, struggles, and aspirations of people experiencing homelessness in BC. Their realities demonstrate the ways in which public policy, the law, and systemic discrimination rooted in harmful stigma and popular misconceptions about what it means to be homeless, degrade the humanity and dignity of some of BC’s most vulnerable community members.
Through exploring the realities of people living homeless alongside an analysis of the way homelessness shows up in public conversation and public imagination, we challenge the ways in which our society has come to view homelessness and, in so doing, call for bolder action on solutions and policy interventions that meaningfully meet the needs of those who are most impacted by them.
PATHWAYS TO HOMELESSNESS AND THE STORIES WE TELL The pathways that lead to homelessness are simultaneously
13 There are many ways in which cities systemically exclude or marginalize housing for people experiencing homelessness. Examples include: an over-reliance on market-driven housing developments; failing to proactively zone for social and supportive housing and shelter; allowing not-in- my-backyard groups to delay or oppose shelter and housing developments through rezoning processes and public hearings.
PROJECT INCLUSION 15 and political decision-making.14 This suburban and rural communities, In combination with the commonly approach propagates stigmatizing additional pressures can lead to held fallacy that we all experience the myths that people who are homeless and perpetuate homelessness, same or similar risk of homelessness, are incapable, unworthy, a drain on including fewer services, insufficient our society has systematically society, or embody the stereotype of critical mass to create social perpetuated the lie that people a “tramp” or “hobo.”15 housing projects, a lack of other need only to try hard enough or appropriate housing options,20 lack remedy that one wound in order to The socio-economic and political of transportation options and, in find themselves on equal footing forces impacting the lives of some communities, trends towards with Canada’s predominantly people experiencing poverty and greater levels of poverty than in white, cis, able-bodied, middle homelessness, including participants urban areas.21 Homelessness in class. Our society fosters this belief in Project Inclusion, are well smaller communities may be less systemically, through its policies, documented. In Canada and many visible and harder to ascertain than laws, and institutional practices. other wealthy countries, there has in larger urban centres because of The results of a 2011 Salvation Army been a decades-long shift away people’s reliance on couch surfing or study called the “Dignity Project” from state-provided social services tendencies to live in natural areas as exposes just how deep these and benefits towards individualistic opposed to on city streets.22 These prejudices run. and market-driven initiatives. This findings, noted in various studies on phenomenon, often referred to homelessness and poverty, were also The “Dignity Project” found that as “Neoliberalism,” is defined as exemplified in the areas we traveled many Canadians hold opinions that a movement prioritizing capitalist while conducting our research. perpetuate the idea that “the poor profitability and a return to market- are the problem” and that “their based social structures and service In BC, we see the outcomes decisions and choices led them to provision.16 Such policies significantly of neoliberalism in the lack of a life of poverty.” Nearly half of all affect housing and homelessness: meaningful government supports respondents agreed with the notion The creation of a cheaper labour available for people in need, such as that if poor people really want to force means many workers have rates of income assistance and social work, they can always find a job; 43% less of a buffer in times of need,17 housing stock that would otherwise agreed that “a good work ethic is all less social housing has been built or prevent people from experiencing you need to escape poverty”; 41% sustained to advantage market-based homelessness. These government believed that the poor would “take and commodified housing,18 and policies and decisions comprise the advantage” of any assistance given corporations exercise more control true pathway to homelessness more and “do nothing”; 28% believed the over publicly accessible spaces.19 In than any individual’s choices.23 poor have lower moral values than
14 See Peter Marcuse, “Neutralizing the homeless” (1988) 18:1 Socialist Review 69; Tony Sparks “Neutralizing Homelessness, 2015: Tent cities and ten year plans.” 38: 3 Urban Geography 348; David J. Hulchanski et al, “Homelessness: What’s in a word?” in David Hulchanski et al, eds, Find- ing Home: Policy Options for Addressing Homelessness in Canada (Toronto: Cities Centre, University of Toronto, 2009). 15 V.J. Del Casino & C.L. Jocoy, “Neoliberal Subjectivities, the “New” Homelessness, and Struggles over Spaces of/in the City” (2008) 40 Antipode 192. 16 David Harvey, A Brief History of Neoliberalism (Oxford University Press, 2005); Jamie Peck, Constructions of Neoliberal Reason (Oxford Universi- ty Press, 2012). 17 Todd Gordon, “Understanding the Role of Law-and-Order Policies in Canadian Cities” in Diane Crocker, Val Marie Johnson, eds, Poverty, Regula- tion & Social Justice: Readings on the Criminalization of Poverty (Black Point, Nova Scotia: Fernwood Publishing, 2010) at 34-35. 18 Hulchanski (2009). 19 See e.g. Marina Peterson, “Patrolling The Plaza: Privatized Public Space And The Neoliberal State In Downtown Los Angeles” (2006) 35:4 Urban Anthropology and Studies of Cultural Systems and World Economic Development 355. 20 See David Bruce, “Homelessness in rural and small town Canada” in Paul Cloke & Paul Milbourne (eds) International Perspectives on Rural Homelessness (London: Routledge, 2006); Jeanette Waegemakers Schiff & Alina Turner, “Housing First in Rural Canada: Rural Homelessness and Housing First Feasibility across 22 Canadian Communities” (University of Calgary, 2014) at 17. Housing in much of rural and small-town Canada is predominantly owner-occupied, mortgage-free and single detached dwellings. The supply of rental housing is quite limited in rural communities (unincorporated places of less than 1,000 population), and mostly in the form of single detached homes (about 61 per cent of all rural rental supply). Most rural areas and small towns suffer from a lack of new rental housing construction. The result is very little rental housing choice, characterized by low vacancies, poorer conditions, and higher operating cost. We did not visit any locations with populations as small as 1,000, however, in the mid-sized and smaller communities we visited, we encountered similar housing stock issues. 21 Researchers’ calculations, based on unemployment rates and proportions of population in low income, Statistics Canada, “Focus on Geography Series, 2011 Census” online: https://www12.statcan.gc.ca/census-recensement/2011/as-sa/fogs-spg/Index-eng.cfm. 22 Bruce; Paul Milbourne & Paul Cloke, “The hidden faces of rural homelessness” in Paul Milbourne & Paul Cloke (eds) International perspectives on rural homelessness. (London: Routledge, 2006) at 2; see also, for further analysis on statistical problems, Paul Cloke, Paul Milbourne & Rebekah Widdowfield, “The geographies of homelessness in rural England” (2001) 35:1 Regional Studies 23. 23 Stephen Gaetz, “The Struggle to End Homelessness in Canada: How we Created the Crisis, and How We Can End It” (2010) 3 The Open Health Services and Policy Journal 21.
16 Pivot Legal Society average; and nearly a quarter believed homeless, many of us are reluctant with losing a job, becoming ill, or that “people are poor because they to let go of the idea that anyone getting injured on the job. Many are lazy.”24 who is homeless must have made participants told us of a lifetime of so-called “bad decisions.” As we sat work that preceded them losing These commonly held views with people during interviews, we their homes. One man, who has disregard the thousands of people in thought about how we wouldn’t want experienced homelessness off and our country who continuously exist anyone judging us for our actions on, told us about his long history of on the precipice of homelessness. as teenagers or judging our current manual labour, workplace injuries They arrive in their circumstances actions through the memory of the that have caused him brain damage not by choice, but because of the worst moment in our lives. But as a and temporary paralysis, and, finally, scarcity of resources available to privileged public, we often refuse to illness that led him out of work and them and the discrimination that we extend that understanding to people onto disability income. as a society systemically tolerate and who are homeless; instead, we hold perpetuate against them. people frozen in time, in one of the I worked most of my life ‘til worst moments of their lives. This I got sick from the Human In the subsections that follow, we kind of thinking allows our society Immunodeficiency Virus (HIV) and unpack the conventional wisdom to stand in judgment, holding dear Hepatitis C Virus (HCV). And it was that shapes the stories we tell about to the notion that homelessness is weird; I didn’t even know why I was how people become homeless. the result of an egregious personal getting tired all the time and stuff We examine popular narratives misstep for which the person must and then I was missing work and about homelessness alongside the then repent for the rest of their life. stuff. And then I’d be on disability lived experiences shared by Project Such thinking can foster bigotry. for a bit and then I feel better and I Inclusion study participants. go back to work. – 63 For many of us, an illness in the “One step away” family or losing a loved one would not Another man found himself homeless after a lifetime of work in the forestry People talk about being one result in homelessness, but it does industry. paycheque, decision, or tragedy for some, including people we heard from. For a person with fixed income away from homelessness. But I’m in a motorhome. My daughters left to pay rent on their own, losing few stop to examine how that one helped me get it. I’m a retired a family member can mean losing incident affects people differently forest industry worker. I had to housing. “Me and my husband always based on the range of social and retire early because I got anxiety had a place before he passed. Now economic resources they have to and depression problems. But I’m on my own (40),” one woman told draw from. Our identities—including anyways, I’d taken, at 55, a us. She is in her 50s, living in a hotel, race, ethnicity, ability, social status, reduced pension. So, I found and looking for affordable housing—a gender, and family status—affect the myself homeless a number of problem she says she never had resources we have and the ways in times. What I get on my pension before her husband died. which we interact with the systems is minimal for the years of service that affect us. One decision or crisis Another participant explained how because I took it early; well, I had may have drastically different effects she and her partner ended up to take it early—they encouraged depending on the resources a person homeless after her partner’s mother me to. – 281 has to fall back on. died and they could no longer secure Once people are living on the streets, financing for their trailer. “We were One woman explained it to us this getting a job is not so simple. Being in recovery for 13 years (181),” she way: displaced daily by police, bylaws, said. “I’ve been with him for 17. And or private security, or trying to keep It’s hardcore on us here, hardcore his mom died so we had to sell our oneself safe from people who might and for the fucking money that trailer.” do you harm can mean only sleeping they have here, they should lay “probably three times a week (181).” the fuck off us and realize, hey, A woman struggling with cancer, who had always lived with her mother, you know what, not everybody We heard from many participants found herself homeless “Since my here has like backup plans and that not having an alarm clock, a mum passed away, actually (397).” savings and accounts and school bed, clean clothing, or ready access and work…shit has happened to a shower or toilet also makes since day one. – 416 “Just get a job” the experience of homelessness For many, including those we highly incompatible with regular Despite this reality when trying spoke with, homelessness started employment. to understand why someone is
24 Cited in Stephen Gaetz & Bill O’Grady “Why Don’t You Just Get a Job? Homeless Youth, Social Exclusion and Employment Training” in Stephen Gaetz et al, eds, Youth Homelessness in Canada: Implications for Policy and Practice (Canadian Observatory on Homelessness, 2013), online: http://homelesshub.ca/sites/default/files/15GAETZOGRADYweb.pdf.
PROJECT INCLUSION 17 People we spoke with expressed dangerous neighbours, or lack of earning rent money, lack of housing a keen desire to return to the power, the fact that our governments stock, discrimination by landlords, workforce, to volunteer, or to access do not enforce proper maintenance unsafe neighbours or roommates, or job training. But they experienced in much of our social and low-income lack of references, securing housing barriers every step of the way. housing is itself driving people to the is a struggle for many people we streets. spoke to. I would love to go volunteer, do whatever, but like nobody is going There’s bed bugs in the place. to let them volunteer when they I can’t stay there, there’s a rash have got no address to put on the all over my neck, my body, and application, you got no proper I stayed there for a week or two references. You have got no this or weeks and I was out of there. I that, then it’s a no-win situation. was living at the shelter and then – 252 we moved to the tent when it was nicer. – 289a As one participant explained, the harrowing experience of seeking both Precarity shows up in many forms, housing and employment was like including in close relationships. walking into a series of dead ends. Those relationships are sometimes “I fell into the old can’t-get-a-job- the only thing standing between without-an-address, cant-get-an- a person being housed or living address-without-a-job (74),” he said. on the street, and relationship breakdown can mean the onset Despite the obstacles they faced, of homelessness. Additionally, in many people told us of their communities of people experiencing determination to make what seemed homelessness, when one member of like an impossible situation work. a family or friend group gets housed, it can be common to let homeless They are like ‘you really should friends and family stay in their new not come to see us [for job home. This can lead to complaints of training] until you have a stable overcrowding or breaches of a rental accommodation’ I was like ‘Why? agreement. I will come, I won’t miss my In Vancouver, many local residents appointments.’ I will be there, hell The fact of getting housed doesn’t believe that housing is more I will sleep like beside the place. – change who you know and love. affordable elsewhere in BC, outside 278 It can mean that, “Oh, I just had the most expensive city in the everybody and their mother coming Yet, again and again, they weren’t province. Through the course of our in and staying with me because they given the chance. research in communities well outside were homeless, and I know what it’s the Lower Mainland and South like, so I was like, ok you can stay here Vancouver Island, where we expected Standing Ever on the Verge of (256).” Homelessness to hear from people about housing unaffordability, we heard over and While some Project Inclusion For many participants, experiences over again that rents are often close participants shared their experiences with precarious housing and to $1,000 per month or more, and with chronic homelessness, homelessness made a deep impact that tourists, students, and people others told us of long stretches of on how they were—or weren’t— who present as ‘professionals’ are precariousness, in which they lived housed for subsequent years in their preferred by landlords.25 on the verge of homelessness for lives. Many continued to teeter on the verge of homelessness even if years. They told us of unscrupulous The task of securing housing can they were no longer living on the landlords who took their rent even if also mean that people, in particular streets. they weren’t living there, or took the women (including women we heard rent, evicted them, and re-rented the from) and trans people, turn to sex unit—all in the same month. “Just get housing” work to earn enough income for rent, The task of simply getting housing even when they don’t want to or feel Even when people can secure isn’t as straightforward as it may unsafe doing so. housing, the conditions can be worse seem. Whether due to the high than a tent. Whether it’s a lack of cost of housing, limited options for proper plumbing, bedbugs, rodents,
25 Waegemakers Schiff & Turner (2014, Housing First) made similar findings in 22 rural communities where rental markets were very strained, rents were reported as comparable to large urban centres, and landlords could give preference to ‘professional’ and other privileged tenants.
18 Pivot Legal Society We heard from women that affordable housing options may be unsafe due to unpredictable The harms done to Indigenous Elders, were identified as roommates, volatile neighbours a unique concern . For example, we heard: or violent spouses. Many people • There are elders living on the streets. “Yeah, yeah lots of them, lots of them… reported being evicted for the actions Some of them just sit on the street and fall asleep there. [What about in winter?] of their roommates. And some Double up on clothes, whatever, start stealing blankets or whatever to be warm people, especially women, reported or some shelter over them (13).” feeling unsafe being housed with • Shelters aren’t always available. “Well how can you [access the shelter] when roommates they didn’t know. it’s closed, some [people] are not allowed, or they’re threatened…or they are banned from it…trying to speak up to help the others…they say ‘mind your They [the landlord] stuck me in business take care of your own selves’ (13).” with this one guy and then I’m • Indigenous people who are homeless have to hide in the bushes or else they “get sleeping with my money in my thrown in the drunk tank (108).” underwear…the guy was trying to steal off me. Then I’m complaining to the landlord and the landlord didn’t do nothing because he don’t give a shit. Yeah. So, I’m stashing everything I can in my underwear, the streets. In some communities, we purport to. Among the 38% of so that he doesn’t steal it off me. shelters and transitional housing have participants who self-identified as – 312 limits on the number of nights people Indigenous, however, the harms done Added to that are the challenges can stay during a given time period to Indigenous Elders was identified as 27 people face in re-entering the until they must move on. a unique concern. housing market once there is a gap Based on the number of beds There is no doubt that homelessness in their housing history. They lack available, getting into a homeless in Canada is driven in part by landlord references due to time on shelter is not always possible. For colonization and racism, and that the the street, they don’t have a credit example, our recent assessment grossly disproportionate number of history, or their last address was the of shelter bed availability across Indigenous people who experience 26 local shelter. BC found 2,144 year-round beds homelessness is a significant barrier 30 It’s like once you’re—once you’ve across the province, with many small to reconciliation and decolonization. 28 become homeless, it’s a [stigma] communities having zero beds. The generational harms of that you just can’t get rid of…Once Yet at last count, there were more colonization will remain ongoing and we’re there, we’re marked. And I than 2,181 people living homeless Indigenous justice will be impossible 29 mean, I’m very truthful about my in Vancouver alone. The barriers to as long as Indigenous people, and in past with people if they asked— accessing shelter are also numerous particular Indigenous Elders, continue really, okay, let’s grab a coffee. It’s and well documented, which is to be disproportionately impacted by going to take a bit. – 318 discussed in Part 2.3: No Access, No homelessness. Support: Service Gaps and Barriers. “Just go to the shelter” RATIONAL RESPONSES TO Elders on the Street IRRATIONAL CIRCUMSTANCES: An often-heard complaint about This report cannot do justice to MOVING BEYOND THE people sleeping rough is that they STEREOTYPES should simply go to a shelter. The the racial and colonial drivers of shelter system itself, however, is the homelessness, nor the unique Three false notions of what reason some people must live on experiences of homelessness homelessness looks and feels like amongst Indigenous people; nor do dominate the public imagination: A
26 See e.g. Ontario Human Rights Commission “Housing discrimination and the individual: 4.2 Tenant Screening Practices”, online at http://www. ohrc.on.ca/en/right-home-report-consultation-human-rights-and-rental-housing-ontario/housing-discrimination-and-individual. 27 Some shelters limit the number of days a person can stay overnight (we’ve heard between 5 and 30 days in some locations), then they must leave for a period of time even if they do not have housing or other options. 28 Researcher communication with Scott McApline March 1, 2017, based on BC Housing shelter data as of January 17, 2017, online: https://www. bchousing.org/housing-assistance/homelessness-services. 29 Prepared for the City of Vancouver by Urban Matters CCC & BC Non-Profit Housing Association, Vancouver Homeless Count 2018 (July 26, 2018), online: https://vancouver.ca/files/cov/vancouver-homeless-count-2018-final-report.pdf. The point-in-time methodology of these counts does not allow for all people experiencing homelessness at a given time to be counted and are widely recognized as an under-estimation of the extent of homelessness in a community. 30 See Jesse Thistle, Definition of Indigenous Homelessness in Canada (Canadian Observatory on Homelessness Press, 2017). See also: Homeless Hub, “Indigenous Peoples”, online: http://homelesshub.ca/about-homelessness/population-specific/indigenous-peoples.
PROJECT INCLUSION 19 person experiencing homelessness is everything—it was just no luck, In almost every community, we often thought of as either a hapless nowhere to go but back to the heard about barriers to accessing victim of terrible circumstance to be street. So getting out from having health care. In particular, people pitied, a nuisance or danger to be bronchopneumonia to going right living outside must risk losing all avoided, or a “happy hobo” free of back out there and getting sick their belongings when going to see a care to be judged.31 None of those again. So it’s a losing battle. – 165 doctor or to the hospital. stereotypes ring true for people actually experiencing homelessness. While every individual’s experiences Whether it’s the risk of your camp The image of the wanderer or the of homelessness are unique, study flooding while you’re in hospital, 34 “hobo,” for example is not without participants across geography and getting ‘farmed,’ or having your consequence. It has led to a legal demographics shared a similar set of belongings confiscated by city and societal system that forcibly challenges they faced from life on the officials or police while you’re at displaces people every day. It’s part of street. a doctor’s appointment for a few a state-driven attempt to erase visible hours, people are taking a calculated Those challenges include: poverty from our streets without risk every time they leave their grappling with the causes of that • violence; belongings to try to access services. poverty.32 • fear; Even when people do access The harm of daily displacement • lack of access to basics like food, health services, many expressed is real; it causes physical and health care, and sanitation; experiencing stigma by care providers, which is addressed in Part psychological harm. It pushes • hopelessness; and people away from the services they 2.3: No Access, No Support: Service rely upon. It means people shelter • fear for friends and family. Gaps and Barriers. in more remote, more dangerous Despite pervasive popular It’s understandable that experiencing locations that put them farther assumptions that people are well- such pervasive barriers at every away from emergency assistance.33 served by social services in Canada, turn can drive people to utter “For me, [tenting is] absolute hell particularly compared to the US, hopelessness. When a man tells us (252),” one participant told us. “I acquiring the bare essentials for daily he’s thinking of robbing a bank for don’t like camping. I don’t like the survival when living homeless is no rent money, or someone says, “It is displacement.” easy task. In some BC communities like there is no light at the end of the Having no safe space to shelter and we heard that water is hard to come tunnel (252),” the stereotype of the rest erodes physical, mental, and by, leaving people dehydrated in the “happy hobo” falls away. spiritual health. summer heat. In others, we were told the food bank won’t hand out food to We found that daily anxiety, however, Bouncing around and not people without a home address and is often not self-directed based on sleeping for days, not eating finding free food can be “ridiculously the conversations we had. It’s often right, not looking after myself, hard (25).” about caring for a loved one. that takes a toll. Then I got “Most of my anxiety comes from pneumonia and that turned into One man described to us the worrying about my common-law bronchopneumonia, where I just situation facing him on weekends, girlfriend (266),” one man told us. about died. I had a priest and when “we starve,” as he put it. “I don’t care about me. I am more everything—I was bedridden…was On Saturday only we have lunch. worried about her, trying to take care not doing well at all. And then I That’s it. One lunch on the of her, just want to get us a place and got released from hospital to go weekend, yeah, the rest of the get her off the street and then she back on the street…there was time we starve. And most of the can…help herself with her addiction. nothing [shelter beds] available, time we don’t make it up the hill But I can’t really do much when we’re they tried to get me in a motel and [to the meal on Saturday]. – 140 homeless.”
31 See e.g. V.J. Del Casino & C.L. Jocoy, “Neoliberal Subjectivities, the “New” Homelessness, and Struggles over Spaces of/in the City” (2008) 40 Antipode 192; Bill O’Grady, Stephen Gaetz, & Kristy Buccieri, Can I See Your ID? The Policing of Youth Homelessness in Toronto, (Toronto: Cana- dian Observatory on Homelessness, 2011). 32 Don Mitchell, “The Annihilation of Space by Law: The Roots and Implications of Anti-Homelessness Laws in the United States” (1997) 29:3 Anti- pode 303; Don Mitchell “Anti-homeless laws and public space: begging and the First Amendment” 19:1 Urban Geography 6; Nicholas Blomley, “How to Turn a Beggar into a Bus Stop: Law, Traffic and the ‘Function of the Place’” (2007) 44:9 Urban Studies 1697; Randall Amster, Lost in Space: The Criminalization, Globalization, and Urban Ecology of Homelessness (El Paso: LFB Scholarly Publishing LLC,, 2008); Nicholas Blomley, “The Right to Pass Freely: Circulation, Begging, and The Bounded Self” (2010) 19:3 Social & Legal Studies 331. 33 Abbotsford (City) v Shantz, 2015 BCSC 1909 at paras 209, 213, 219. 34 A verb used among people experiencing homelessness that describes the event of having one’s belongings stolen from an encampment, usual- ly by another person experiencing homelessness. “We came back from our doctor’s appointment and our tent and stove were gone. We’d been farmed.”
20 Pivot Legal Society While some people This is but one example of the Some evidence suggests that the experiencing complex relationships of care overall number of crimes committed homelessness do commit and familial duty that people are by people who are homeless occur at navigating while living on the streets. the same rate as housed individuals, crimes—just as some The popular assumption that people though people who are homeless housed people do—there experiencing homelessness have are far more likely to be arrested is no clear indication no family or loved ones is a major when they do offend. This is often that they pose a misconception that only serves to because people relying on public disproportionate risk to dehumanize people’s experiences space and appearing poor are more and create more cognitive distance likely to attract complaints and public safety, that they between people who are homeless police attention for behaviours that are necessarily more and people who are housed. go unnoticed or unreported except likely to be criminals when they are conducted in public or than housed people, or The Realities of Criminality and in low-income communities where that they are more likely Victimization they may offend more privileged community members or garner When housed community members to be prolific or violent heightened police suspicion.36 offenders. imagine the archetype of a homeless person as a danger to them, their Regardless of whether the rates are families, their property, or as a so- exactly the same, studies show that called “criminal,” they do so without involvement in the justice system for a full understanding of evidence people experiencing homelessness is relating to the interplay between more likely to be for minor offences, homelessness and criminal acts. such as intoxication or nuisance, or for poverty related crimes like While some people experiencing burglary (mostly for breaking into homelessness do commit crimes— warehouses and abandoned buildings just as some housed people do— as a means to secure a place to there is no clear indication that they sleep), shoplifting small items to sell pose a disproportionate risk to public or pawn, or selling small quantities of safety, that they are necessarily more drugs.37 likely to be criminals than housed people, or that they are more likely to There is good evidence, however, be prolific or violent offenders. that people living homeless are far more likely to be victimized by violent A number of studies have found that crime. Numerous studies have found people who are homeless are no that anywhere from one-quarter more likely to commit violent crime, to over half of individuals living such as murder or sexual assault, homeless have been victimized since than those who are housed.35
35 David Snow, Susan Baker & Leon Anderson, “Criminality and Homeless Men: An Empirical Assessment” (1989) 36:5 Social Problems 532; Tammy S. Garland, Tara Richards & Mikaela Cooney, “Victims hidden in plain sight: the reality of victimization among the homeless” (2010) 23:4 Criminal Justice Studies 285; Kevin Fitzpatrick & Brad Myrstol, “The Jailing of America’s Homeless: Evaluating the Rabble Management Thesis” (2011) 57:2 Crime & Delinquency 271. Jack Tsai & Robert Rosenheck, “Homeless veterans in supported housing: Exploring the impact of criminal history” (2013) 10 Psychological Services 445. 36 National Council on Welfare, Justice and the Poor (Ottawa: Minister of Public Works and Government Services Canada, 2000) at 13, 15, 16, 23. 37 See footnote 23, above. See also Stephen Metraux, Caterina Roman & Richard Cho, “Incar- ceration and Homelessness” (Toward Understanding Homelessness: The 2007 National Symposium on Homelessness Research, March 1-2, 2007), online: https://www.huduser.gov/ portal/publications/homeless/homeless_symp_07.html; Sahoo Saddichha et al, “Homeless and incarcerated: An epidemiological study from Canada” (2014) 60:8 International Journal of Social Psychiatry 795. Looking at youth in particular, hunger and the need to access shel- ter are key drivers of criminal justice involvement, leading young people into a system that can be difficult to exit. See Stephen Baron, “Why Street Youth Become Involved in Crime” in Stephen Gaetz et al, eds, Youth Homelessness in Canada: Implications for Policy and Practice (Toronto: Canadian Homelessness Research Network Press, 2013); Tessa Cheng et al, “High prevalence of risky income generation among street-involved youth in a Canadian setting” (2016) 28 International Journal of Drug Policy 91.
PROJECT INCLUSION 21 A woman in her 40s told us about the anxiety she lives with because of the threats she has experienced at the hands of people who are housed. “I get nervous sometimes if there is a group of people coming towards me, because I was in a bin one time and these two guys with their two dates decided to show how impressive they were and intimidate me out of the area, right? So they were banging on the bin and I was inside it and stuff and I didn’t know how many people were outside and it was kind of freaky.” – 439 When we asked if the people outside the bin were threatening her verbally, she remembers them saying, “Get the fuck out, we’ll beat your fucking head in!”
becoming homeless.38 A woman in Rates of rape and robbery times more likely to be murdered her 40s told us about the anxiety perpetrated against homeless than the general population.43 she lives with because of the threats people have been assessed as being she has experienced at the hands of 20 times higher than the general Criminality in popular imagination people who are housed. population.39 Being homeless is in and public conversation continues fact an independent risk factor for to stigmatize people who experience “I get nervous sometimes if there is a being victimized because people poverty and homelessness as group of people coming towards me, have to carry all their possessions perpetrators of violence and crime. because I was in a bin one time and with them or hide them in unsecured Our interviews with participants and these two guys with their two dates camps, leaving them vulnerable to a large body of existing research decided to show how impressive theft.40 overwhelmingly suggest that people they were and intimidate me out of experiencing homelessness are too the area, right? So they were banging Between 2006 and 2014, people often the victims of violence, crime, on the bin and I was inside it and who were homeless in BC died at and unnecessary, untimely death. stuff and I didn’t know how many a median age of 40–49 years old, people were outside and it was kind as compared to 76.4 years of age People experiencing homelessness of freaky,” she told us. When we within the general population.41 They do not need to be feared. The myths asked if the people outside the bin are three times more likely to die an that we have created about them were threatening her verbally, she “accidental” death, and die by either serve to perpetuate inequity and remembers them saying, ‘Get the homicide or suicide at approximately endanger lives. fuck out, we’ll beat your fucking head double the rate of housed people.42 in (439)!’” Another study out of Ontario found that homeless men are about nine
38 Tammy S. Garland et al, “Victims hidden in plain sight: the reality of victimization among the homeless” (2010) 23:4 Criminal Justice Studies 285, reviewing D.G. Anderson “Homeless women’s perceptions about their families of origin” (1996) 18:1 Western Journal of Nursing Research 29; K.M. Fitzpatrick, et al. “Criminal victimization among the homeless” (1993) 10:3 Justice Quarterly 353; B.A. Lee and C.J. Schreck “Danger on the streets: Marginality and victimization among homeless people” (2005) 48:8 American Behavior Scientist 1055; R.L. Simons et al, “Life on the streets: Victimization and psychological distress among the adult homeless” (1994) 4:4 Journal of Interpersonal Violence 483. 39 Deborah Padgett & E.L. Struening, “Victimization and traumatic injuries among the homeless: Associations with alcohol, drug, and mental problems” (1992) 62:4 American Journal of Orthopsychiatry 525. 40 Tammy S. Garland, “Victims hidden in plain sight: the reality of victimization among the homeless” (2010) 23:4 Criminal Justice Studies 285. 41 Sean Condon, Still Dying in the Streets: Homeless Deaths in British Columbia, 2006-2014, 2nd ed (Vancouver: Street Corner Media Foundation, 2016) at 4-5, 8-9. 42 Condon at 4-5, 8-9. 43 Stephen Hwang, “Mortality among men using homeless shelters in Toronto, Ontario” (2000) 283 The Journal of the American Medical Associa- tion 2152.
22 Pivot Legal Society Gendered Violence on the Streets • 43% of homeless women and this, the harder they try to keep us The stereotype of the dangerous 14% of homeless men reported where we are (153),” one woman homeless person also erases the being sexually assaulted; and told us. She was describing a simple experience of homeless women, • 21% of women reported being urgent need and attending to it felt trans people, and Two-Spirit people raped.44 impossible: “Just trying to get a roof who are at an elevated risk of physical over our [her and another person and sexual violence. One woman told The idea that people experiencing battling cancer] head before our next us about the safety issues she faces homelessness are dangerous round of chemo.” on the street. threats to society erases and silences the experience of sexual When you think of waking up on I’ve been woken up to being raped, violence and gendered violence hard, cold pavement day after day, like more than half the time I fall against people who are homeless. using drugs or alcohol to numb the asleep, which is why I don’t sleep. Our data from Project Inclusion pain that we would all feel in that My belongings being stolen—I’ve captures experiences of women, situation seems a rational response woken up probably more than half but not members of the LGBTQ2S to an irrational life circumstance. the time I fall asleep to nothing community—a community whose “When you are in a tent in the winter, being there, or my clothes taken members who are experiencing well, you use [substances] to stay off my body and my shoes, my homelessness are also facing sometimes…to stay warm (239),” one cell phone. So you just give up the very worst effects of violent person explained. “Just to kill, you having a cell phone altogether homophobia, transphobia, and know, kill the pain, kill the pain.” because there’s no point. I don’t systemic discrimination related Another person described it simply have anywhere to [go], I don’t have to gender expression and sexual as “trying to kill that feeling—being four walls and a door. So basically identity. There is significant literature outside (343).” I’m exposed to people coming up reflecting the increased threat of and taking whatever they want. violence and harassment experienced Quite a few people we heard from So there’s no point. So you just by people in the LGBTQ2S homeless turn to substances to make life walk here around with nothing, community.45 We were unable to more bearable. A woman in her 30s, basically. – 313 capture that in this study, which already living with arthritis, told us: we acknowledge as a shortcoming When asked who had assaulted her, as it merits in-depth exploration, You’re living outside in the cold she told us: particularly in suburban and rural and everything. And heroin communities. or alcohol, like warms you up Sometimes I’m not even too and keeps you alive so you sure who it was. You can just tell don’t freeze to death. And your when you like wake up, when “Trying to kill that feeling”: Health, Humanity, and Homelessness arthritis, you get sore, exposed your, like, your pants, or if you’re to the elements. A lot of people wearing jeans are unbuttoned and The labels and assumptions get arthritic, so it helps with the unzipped and like down around we collectively apply to people pain. Yeah, it’s just really hard to your ankles and there’s like, yeah, experiencing homelessness function and go about your day you can tell. Because I think I was cast them as “other,” rather than and do what you have to do in the drugged or something…because recognizing our commonalities of day, without something to help you’d think you’d wake up. – 313 human experiences such as health you get up and go because you’re issues, pain, normal bodily functions, This woman is not alone in her just worn down and sore all the and our need for protection from the time. – 313 experiences. A study conducted with elements. people experiencing homelessness We explore intersections between in Toronto in the 1990s found that, in Some of the people we heard from substance use and homelessness in the past year: were young people already struggling greater detail in Part 1.2: Substance • 46% of homeless women and with arthritis. Others were facing Use in Context. 39% of homeless men reported potentially fatal illnesses while being assaulted; homeless. “It’s like, the harder we People who are homeless in BC have try to set up so that we can survive approximately half the life expectancy
44 Eileen Ambrosio et al, The Street Health Report: A study of the health status and barriers to health care of homeless women and men in the City of Toronto (Toronto: Street Health, 1992) at 51. 45 See e.g. Ilona Alex Abromovich, “No Safe Place to Go: LGBTQ Youth Homelessness in Canada: Reviewing the literature” (2012) 4:1 Canadian Journal of Family and Youth 29; Bryan Cochran et al, “Challenges Faced by Homeless Sexual Minorities: Comparison of Gay, Lesbian, Bisexual, and Transgender Homeless Adolescents With Their Heterosexual Counterparts” (2011) 92:5 American Journal of Public Health 773; Andrew Cray, Katie Miller & Laura E. Durso, Seeking Shelter: the experiences and unmet needs to LGBT Homeless Youth, (Washington, DC: Center for Ameri- can Progress, 2013) at 16.
PROJECT INCLUSION 23 of housed people.46 Mortality rates They [city staff] bulldozed that people, where people can go. It is amongst people who are homeless camp three days after I had done bullshit. – 165 are disproportionately high across my last dose of chemotherapy. I Canada.47 Accessing health care, couldn’t even walk…They called One man explained that he couldn’t however, especially through an ambulance for me and the leave his tent out to dry because it hospitals, can be a daunting task. ambulance attendants come and would either be destroyed or law help me out of the tent and took enforcement would take it. me up the hospital, I spent the I set up my tent…it was just next three days up there while getting into winter so it would they destroyed our camp and “I had pneumonia this rain, and once the tent and gear everything we owned. I got out spring. And I’m worried and whatnot absorbs water, you of the hospital to two changes of now have to, in the morning, pack I’m going to get it again. clothes. – 153 I don’t want to go back that up…when you go to bed now, When it comes to treating illnesses, everything is already wet. So when to the hospital. You I set up again, when all my stuff know what I mean? repeated displacement and having belongings taken can also mean was [already] soaked through, Like, I don’t want to losing prescription medication. For I went to bed with everything miss a day down here medications like antiretrovirals for wet and it was uncomfortable… because I’m afraid HIV, this can negatively impact a Luckily, I woke up in the morning person’s ability to control their viral and I didn’t freeze that night, and they’re [city staff] going when I woke up I was surrounded to take my stuff. So a load, putting both them and possibly those close to them at risk. by water, like puddles. And so I week in hospital is not packed up and biked to town, and going to do.” – 49 For some people with Hepatitis C I knew that day that, when I go (HCV), homelessness can mean not home tonight I am going to die… being treated at all. not because I want to. And my only option was to leave my things They don’t want to give While the experience inside hospitals set up, wasn’t an acceptable one [medication] to you unless you is covered in Part 2.3: No Access, No either because if people see it, are housed…You can’t, you are not Support: Service Gaps and Barriers, they’ll destroy it [or take it]. – 412 stable to take your meds. And you we also heard that people are got to be housed, you know in Fortunately, a friend helped him find unwilling to even go to a hospital for case you do get sick so you rest, a temporary bed that next night, he fear of coming back to nothing: you can’t rest when you are out told us, “So I didn’t die that day.” I had pneumonia this spring. there. Just going to make it worse, The life-threatening dimensions of And I’m worried I’m going to get because your immune system is 48 homelessness are already too much it again. I don’t want to go back already down right? – 165 to bear. But living homeless can also to the hospital. You know what I Faced with grinding cold and rain, and be humiliating. It can be impossible mean? Like, I don’t want to miss a managing chronic illnesses, people to attend to the facts of one’s biology day down here because I’m afraid go to bed fearing that they might with the dignity of privacy, space, and they’re [city staff] going to take my die. Homelessness can be a deadly access. We are ever mindful of the stuff. So a week in hospital is not prospect. importance of teaching our children going to do. – 49 that “everyone poops,” partially People are, you know, getting Another woman explained that because it’s biologically true, but also sick to the point where they are her hospital stay meant losing because urinating and defecating in the hospital to the point where everything. are private matters that can feel they die, all because there is no embarrassing, and even shameful housing and there is nothing for when we don’t have access to private
46 Condon at 9. 47 Stephen Hwang, “Mortality among men using homeless Shelter in Toronto, Ontario” (2000) 283 Journal of the American Medical Association 2152; Angela M. Cheung & Stephen W. Hwang, “Risk of death among homeless women: a cohort study and review of the literature” (2004) 170: 8 Canadian Medical Association Journal 1243; James C. Frankish, Stephen W. Hwang & Darryl Quantz. “Homelessness and health in Canada: research lessons and priorities” (2005) 96:2 Canadian Journal of Public Health/Revue Canadienne de Sante’e Publique S23; Stephen Hwang et al, “Mortality among residents of shelters, rooming houses, and hotels in Canada: 11 year follow-up study” (2009) 339 BMJ b4036. 48 It is in fact not the case that being homeless is necessarily a full barrier to accessing treatment for HCV (Hepatitis C Virus), but we certainly heard from people who were either turned away as “not treatment ready” or discouraged from accessing care due to their housing situation. For more information on HCV treatment access see: http://www.hepctip.ca/home/.
24 Pivot Legal Society hygienic places to go.49 How, then, do toilet. Many people rely on a purchase. Societal stigma leads us we remember this reality in relation businesses where patrons are to judge homeless people for the to a two-year-old, but forget that fact expected to purchase something conditions they are forced to live in. when a 30-year-old asks to use the in order to use the bathroom. “You bathroom in a McDonald’s, or when got to have money (278),” one But these are simply the result of we see someone peeing in an alley? person explained. “You have to buy living without the resources we something to use the washroom.” all need in order to take care of We’ve all woken up with the flu. But ourselves. few of us will ever wake up sick to All of this forces people to plan ahead our stomachs, having to pack up before every bodily function, hoping STRATEGIC THINKING, STAYING everything we own, and run across to be allowed to use the facilities SAFE downtown to the nearest toilet. somewhere like a Tim Horton’s or While we heard much about McDonald’s. Other times, it means the complex, grinding nature of This is super embarrassing, but having no choice but to go to the homelessness, we also heard about like years ago, sleeping in that bathroom outside in an alley or park. doorway I was talking about over strategies for surviving life on the there, and I just woke up and I Showering, especially in streets that are equally complex and guess I had stomach issues. I municipalities lacking drop-in cunning. didn’t realize it, and I’m like oh, resources, means relying on friends There are a lot of really intelligent whoa, grab all my stuff, run…I just and waiting for opportunities. As one people, I don’t know anybody made it in the stall and I’m like that woman explained it to us, taking a more hard-working and ambitious did not just happen. Oh my God!… shower is always a matter of advance than, like, a homeless person. I Luckily I had like lots of clean planning. “When I’m at my friend’s definitely don’t think these people clothes and stuff so I discarded the house, I try to get in there and are lazy because they have to take clothing, cleaned myself up but I sometimes it’s a week before we can down their house and carry it on was so embarrassed and there is [shower again] (343),” she told us. your back and walk miles and set this guy in the stall next to me just “But whatever, at least we do it.” it up again. And, like, every little coming out who I kind of knew… thing that people take for granted, he’s like ‘Don’t worry, it’s happened We blame people who are homeless like jumping in their shower or to me too.’ I got so embarrassed for the way they look, for that smell cooking—making something to man. That’s awfully gross. – 278 in the alley, and for how they might arrive in a moment of desperation eat is, like, such a process…when And that’s a situation in which at the door of a fast-food restaurant you don’t have access to…proper someone has access to a public without having the capacity to make housing. – 313
49 Taro Gomi, Everyone Poops (Kane Miller, 1993).
PROJECT INCLUSION 25 Proper housing makes life’s a participant how she stays warm. even move. I remember I can simple acts—the pieces that make “We cuddle up (343),” she told us. barely even lift my arms…But I’m it bearable, and that mark the That’s simple, but challenging. Laws telling you, the next day [name] difference between surviving and prohibiting structures can make it died from the elements. – 49 thriving—infinitely more feasible and hard to find a place where two people manageable than when one is living can set up a tent without getting What is clear from our findings is homeless. “The simple things are caught. Going to an emergency that people need warmth. They just a chore, right (313),” a participant shelter where there may only be will find a way to obtain it, even if it explained. “If you were in a house, room for one person is untenable means taking a risk. Using law and and had an alarm clock to wake you because it means leaving a loved one policy to limit access to safe heating up get out of bed—these little things to freeze. In some communities, we increases people’s risk of frostbite, you take for granted—you jump in the heard about people piling into trailers hypothermia, fire-related injury, or shower and go to work.” or vans to shelter overnight because death. “too many people were freezing to The interviews we conducted for this death outside (312).” Seeking Shelter, Seeking Safety study demonstrate the multi-faceted, The deep stigma against people complex, and deeply human nature The alternative can be to use experiencing homelessness gives of living homeless in BC. The real-life candles or heaters. Without support rise to a system of laws and policies experiences people shared with us from officials such as BC Housing that cause harm to their livelihood, dismantle the popular archetypes staff or fire officials to provide safe health, and personal safety; but it of the homeless person as a “happy heating devices, fire safety training, can also give rise to direct violence hobo,” a scary monster, or a hapless fire extinguishers, safer tarps, or and assaults against people who victim to be pitied. The complex array warming centres, this can create a are homeless, which we detailed of systems and tactics that people risk of fires. In most cases, instead earlier in this chapter. Given that employ to stay safe, warm, fed, and of providing necessary supports, daily life presents a minefield of cared for is at once necessary and officials confiscate tarps, heaters, threats to personal safety for people relatively effective, but also time and candles, leaving people at risk experiencing homelessness, their consuming and often at odds with of hypothermia, frostbite, and other decisions on where and how to local laws that stand in the way cold-related harms. shelter are often rooted in attempts of survival and safety. Everyone to stay safe. we heard from is simply someone Some people build makeshift structures to better protect making decisions that are best for For some, especially women, themselves from the elements.50 them, in circumstances that are staying close to services in the However, we heard that can land you unimaginable to most people. downtown core and not being alone in the crosshairs for displacement are important safety measures. “I We asked a participant—an outwardly and attention from law enforcement. stayed close to the shelter so that… strong, typically abled man—about “Solid structure will get you into shit if I had any trouble, because I was by what he did to feel comfortable and (318),” one participant told us. “If you myself. I stayed close to where I could safe. His response shows us just can keep it to a tent and tarp, you can scream if I needed help [chuckle] how naïve a question that is given stay hidden.” (312),” one woman told us. “Or get up the baseline that people are working fast and move and emergency press from as they navigate daily life. From the comfort of a house, it can be hard to remember the bitter their button.” I don’t know what you’re really cold of a northern BC winter, or Likewise, avoiding isolated locations asking. What do you mean, to realize that even relatively mild can be essential for personal safety. comfortable and safe? I’m in the temperatures can be deadly for When asked about why she doesn’t bush. I mean like I’m vulnerable people who have no way to get warm stay in any of the camps in the in every direction. So I don’t really or dry. woods, another woman told us, “Girls feel comfortable and safe. That’s getting raped, guy getting raped, guy why I don’t sleep that much. – 102 I almost died this year from the elements. [name] got it [died] getting murdered, people getting overdosed, people—college kids go Staying Warm the next day, from the elements there…It was really cold where I in there and like hurting you and shit We are sitting in a northern was. And it got colder and colder (416).” community; it’s late August, but a and your body just goes beyond chill is already in the air. We asked cold, to numb, to just it can barely
50 For example, a homeless camp in Maple Ridge, “Anita Place,” was established in May 2017 and is still in place as of the writing of this report. Because they have not been displaced, several people have been able to construct makeshift shelters to better protect themselves from wind, rain, snow, and sun. Outside of the encampment context, we have observed that establishing this level of protection from the elements is rarely possible.
26 Pivot Legal Society For others, it means finding creative being far from services, hard to the needs of people experiencing places to hide, like in clothing bins find, and disconnected from both homelessness because they (362). Still, others do what they outreach and medical care. perpetuate daily displacement, can to secure a roof overnight. “I’m leave people open to the elements always packing a pack because you “Personally I feel safer where the during the day, do nothing to protect never know if the shelters are too bears and the cougars are than I do people’s belongings, and prohibit full or if I have nowhere to stay (96),” where the people are (304),” one man people from establishing safer one woman told us. “And usually if I told us. “I wouldn’t [sleep downtown] structures and communities. They don’t have anywhere to stay, I’ll see if because I wouldn’t feel safe (294),” have, however, thus far been the only someone will pick me up and I will do another told us. “I know that I’m move towards recognizing people’s a date and I’ll make some money to going to be harassed by cops.” right to shelter in public spaces. get some beer, maybe get a room.”51 The threat of police harassment kept Choosing between proximity to Despite the risks, many people told many participants in isolation. “Got downtown amenities and evading us about hiding and trying to avoid to be isolated (318),” one person said, detection can also mean going detection. Being publicly, visibly “or else then they [cops] will start without necessary income that homeless can so often lead to come in, start harassing.” may get stolen or confiscated by displacement and losing property authorities. For some people experiencing due to ubiquitous local and provincial homelessness, there’s no good laws that prohibit people from safely I usually try to stay close to the solution. There’s often no way to sheltering on public lands.52 downtown area because that’s safely avoid being hassled by law where I take my empties and my For some, this can mean heading into enforcement or housed members of scrap metal. I always try to find a the wilderness, “because they’re so the community, “not unless you’re place to hide everything, but then afraid of having their stuff torn apart way out in the bush, but then the other people would find it and and thrown in the dumpster, that bears will get you, right (343)?” one steal it or the city would come and they are making sure that there’s no woman said. She described it as [take] it. – 63 damn way anybody can get any way being trapped with bad options on all near them (358).” sides. “So it’s pretty scary either way Some BC municipalities are actively you go, right?” working to criminalize income Being found can mean losing generation, robbing homeless people everything you own, including your In a great number of cities, there of their livelihoods and driving people makeshift home. are bylaws prohibiting sheltering on further into hiding. For example, in sidewalks and in parks, leading some March 2018, Kelowna City Council It [a camp] got destroyed because to find shelter on privately owned proposed a bylaw amendment people would hike up to the top land, which comes with its own fears prohibiting people from donating and saw [the] camp and just and risks. “People might kill you recyclables to people within the totally destroyed it, cutting a lot of (412),” one participant said simply. vicinity of a recycling depot. This city tarps up and with knives and stuff “Or have dogs or whatever, right?” already places a $150 fine on people like that. We’ve been vandalized Exceptions to such prohibitions are “scavenging” for recyclables.53 Many camping. – 269 both rare and far too limited. Some municipalities across the province municipalities such as Victoria, strictly control other forms of income For others, usually men we heard Kamloops, Mission, Chilliwack and generation like panhandling.54 Some from, the risks posed by being caught Abbotsford, for example, allow go so far as to prohibit shopping carts by people and harassed by police sheltering on a temporary, and on public sidewalks.55 Cities across meant that braving the wilderness strictly limited, overnight basis. Such BC use apparently neutral bylaws could be the safer option, despite exceptions are inadequate to meet to confiscate people’s belongings
51 “Date” is a noun used in the sex worker community to describe clients paying for services. The phrase “do a date” refers to engaging in sex work to generate income. 52 These include prohibitions on setting up shelter in parks or on other public lands, bans on sitting or lying down in public, overnight park closures, prohibitions on sleeping in cars, restrictions on placing belongings on sidewalks or other public places, trespassing laws, etc. 53 City of Kelowna, Revised By-law No. 10475, Bylaw Enforcement Notice Bylaw (27 August 2018), Schedule A. See also Megan Trudeau, “Changes to the Good Neighbour bylaw on the table at city council” Kelowna Now (26 March 2018), online: https://www.kelownanow.com/watercooler/ news/news/Kelowna/Changes_to_the_Good_Neighbour_bylaw_on_the_table_at_city_council/. 54 See e.g. Colwood, Coquitlam, Langford, Mission, Nanaimo, New Westminster, City of North Vancouver, Penticton, Pitt Meadows, Quesnel, Sidney, Vancouver, Vernon, Victoria, West Kelowna, Williams Lake. 55 For e.g. Corporation of The District Of Maple Ridge Bylaw No. 6704 – 2009, Highway and traffic Bylaw (26 January 2010) section 20.1 states that “No person shall place shopping carts in any manner upon a highway or upon any structure on a highway”, online: https://www.mapleridge.ca/ DocumentCenter/View/540/Highway-and-Traffic. See also district of North Vancouver. At the time of writing the City of Vernon is considering similarly banning shopping carts in public spaces.
PROJECT INCLUSION 27 “I’m at the mercy of from parks and sidewalks. Laws like find land to put them on because whenever my friends are these mean that merely being visibly they are too old. “All’s I need is just done work, whenever homeless, or having a shopping like a—a spot— but there is no spots. cart—a necessity for many people And then all the spots are all taken somebody could possibly facing daily displacement—can make up and then I did have one spot, they squeeze it in to drag one a target for enforcement of other [trailer park manager] kind of said me to where, I don’t laws. well, my trailer was one year too old know anymore, because (82),” one man in his sixties told us. the campsite wouldn’t No Safe Haven in Mobile Homes “Yeah, they said they could be only from 1990, my trailer’s 1989.” accept my money, Many people spoke to us about because there was no alternatives they’ve tried to sleeping Where trailer owners are able to in tents, and the risks of trying to insurance. I had the secure a plot of land for their trailer, create or find a safer shelter. For they are often renting that land. In money to pay the site some, vehicles are safer options communities near cities or elsewhere fee, but he wouldn’t than tents or makeshift shelters. “I’m with rising land values, gentrification accept it because there working on getting a van again (294),” has led to these trailer parks being was no insurance on the one person told us. “I feel a lot safer sold and trailer owners being forced sleeping in a van right rather in a 57 trailer and I couldn’t get to leave. In addition, a trailer parked tent…you lock it, secure.” on public land is not considered insurance without [an housing and so people cannot We heard repeatedly about people additional] $300.” – 362 access the shelter portion of income trying to make relatively safe homes assistance to pay for insurance, for themselves in trailers and upkeep, or gas.58 vehicles, often with little success due to local laws prohibiting parking, lack Instead of supporting people who of access to affordable insurance, find relatively safe and comfortable or displacement from mobile home housing alternatives, we heard how parks. people are chased out of their towns or homes due to prohibitions on The widespread use of mobile homes parking or being ticketed, towed, or in trailer parks in and around many impounded multiple times. small communities and outlying areas throughout Canada began Well, it is illegal to stay in [the in the 1970s. Many have become vehicle]. I’ve heard now a friend long-term dwellings even though of mine that’s doing the same they were not intended for that thing as me. He said, ‘[name]’, purpose and, coupled with lack of basically it’s illegal to sleep in maintenance, are now falling into your motorhome.’ And I said, disrepair. Many of these units are at ‘How can that be?’ Because, you high risk for becoming uninhabitable know, if you own it, how can it 56 in the next five years. There is no be illegal to sleep in your home? mechanism—loans, mortgages, Well, it is, because you’re on city government programs—to help these streets, or you’re on city property, owners and renters repair or replace or everything. I mean, unless their homes. We heard about how you know for sure that the city some people have trailers but cannot has no jurisdiction over it, you’re
56 Jeanette Waegemakers Schiff & Alina Turner, Rural Alberta Homelessness (Calgary: Universi- ty of Calgary & Alberta Centre for Child, Family & Community Research, 2014) at 27, online: http://homelesshub.ca/resource/rural-alberta-homelessness. 57 Waegemakers Schiff & Turner (2014, Rural Homelessness) at 27. 58 See e.g. The Vancouver Homeless Count includes vehicles in the definition of “home- less.” See Urban Matters CCC & BC Non-Profit Housing Association, Vancouver Homeless Count 2018 (July 26, 2018), online: https://vancouver.ca/files/cov/vancouver-home- less-count-2018-final-report.pdf. Further, the Ministry of Social Development and Poverty Reduction policy on Income Assistance shelter Rates (Effective 24 April, 2018) specifies that only rent for a family unit and associated costs like fuel for cooking and heating are eligible for shelter allowance. Vehicles and related costs are not included, online: Ministry of Social Development and Poverty Reduction https://www2.gov.bc.ca/gov/content/governments/ policies-for-government/bcea-policy-and-procedure-manual/support-and-shelter/sup- port-shelter-and-special-care-facilities.
28 Pivot Legal Society taking a huge chance of being know guys in my position. They’re focus on home ownership, a lack there overnight because they forest workers, whatever, and of rental housing stock, greater can just pull the hook on you any they’re about my age, doing the distances to access food and health time. They don’t have to ask any same thing, just trying to stay out services, lack of local capacity to questions. They just come and of shelters and out of the hair of meet housing need, and unreliable or take it. – 281 cities. I don’t want to be a cause. non-existent public transportation.59 I don’t want to be in a shelter. No, Low incomes and repeated fines it’s not [my scene]. I was a family People in smaller communities also leave people without money for man. I was divorced and I retired face the risk of being recognized and insurance, meaning they can’t avail and I got sick and there’re all sorts “black listed” by the limited number themselves of off-season parking at of things that went on. – 281 of landlords providing affordable campsites where vehicle insurance is housing, or are squeezed out to mandatory. Having a vehicle—one’s home— accommodate seasonal workers impounded can also mean losing or tourists.60 For example, during I’m at the mercy of whenever my access to all belongings, and our research, we stayed in motels friends are done work, whenever with that, losing the ability to sell without much thought as to how we somebody could possibly squeeze belongings in order to pay insurance, might be impacting local housing it in to drag me to where, I don’t fines, or impound fees to get back supply, only to learn that in some know anymore, because the one’s home. communities motels are rented on a campsite wouldn’t accept my monthly basis to low-income people money, because there was no Maybe if I hadn’t had to drag my during tourist off-seasons. Long- insurance. I had the money to motor home that got impounded term tenants are then evicted during pay the site fee, but he wouldn’t with all of my stuff that could summer months to accommodate accept it because there was no have potentially been sold, like my tourists and other higher-paying insurance on the trailer and I paintings, or clothing, or pawned, guests—including us. couldn’t get insurance without [an or whatever. All of my resources additional] $300. – 362 are sitting locked in a motorhome This is how we are treating people that I don’t know where it is or I who find safe, relatively affordable Several people talked about saving up probably would have taken bolt alternatives within the context of a what money they could or relying on cutters and broken in and taken grinding housing crisis. family to help finance the purchase my stuff back. Because I had been of a trailer, or sometimes having left with no choice but to resort OUR LAWS MAKE IT WORSE one donated to them, only to find to some form of criminal activity If homeless people can only live themselves being “chased” from to live. I don’t want to live like this in public, and if the things one place to place by law enforcement. and I don’t want to sell my body, must do to live are not allowed in but I’m kind of rammed in the A senior citizen with no criminal public space, then homelessness corner with nothing left. What am involvement told us this was the last is not just criminalized; life I supposed to do? – 362 thing he expected when he set out for homeless people is made 61 to live out his days independently While we heard about trailer living impossible. in the form of housing he was able mostly in smaller communities, – Don Mitchell to afford. The catch-22 was that one Project Inclusion researcher bylaw enforcement would tell him participated in the 2018 Vancouver he couldn’t park his vehicle in town Homeless Count in March. Through Laws because it had no insurance, but they that, we were privy to a first-hand As noted above, cities across BC (and would also report him to the police glimpse at the staggering number of across North America) employ public if he moved the vehicle without people who appeared to be living in space bylaws that control the lives, insurance. He knows he needs vehicles throughout Vancouver alone. bodies, and movements of people insurance, but he can’t afford it. experiencing homelessness.62 Trailers seem to be an important I can’t even afford to be in it, option for people in smaller Hearing from a couple that has really. That’s what it boils down communities where there is a greater been repeatedly moved along for to. And I’m in the community. I
59 Bruce; Waegemakers Schiff &Turner (2014 Housing First) at 17; Julia Christensen, “They want a different life”: Rural northern settlement dy- namics and pathways to homelessness in Yellowknife and Inuvik, Northwest Territories” (2012) 56:4 The Canadian Geographer/Le Géographe canadien at 419. 60 Authors’ personal observations. See also Waegemakers Schiff & Turner (2014 Rural Homelessness). 61 Don Mitchell, “Anti-homeless laws and public space: begging and the First Amendment” (1998) 1:19 Urban Geography at 6-10. 62 See extensive review in Catherine T. Chesnay et al, “Taming disorderly people one ticket at a time: The penalization of homelessness in Ontario and British Columbia” (2013) 55:2 Canadian Journal of Criminology and Criminal Justice at 161.
PROJECT INCLUSION 29 for people. I’m not only saying this just for me, I’m saying for everybody, because it does need to happen here…because that’s a big struggle, really big, and if we didn’t have—if we had low income housing, we wouldn’t have [homelessness]. Simple, but they don’t put that little dot together. – 269 • A place where you can camp all day, you could leave your house, and be dressed nice and look like and feel like a normal citizen, walking around throughout the day, instead of having to lug your carts and bags, and everybody is looking at you, and they are breaching public space bylaws For one couple, it meant coming already pre-judging you, and you and who can’t access the shelter back to their camp to find “our tent feel like ‘what is the point.’ – 252 because it is often full and doesn’t was all slashed up and stuff was in • Basically, if I had housing and a accept couples, one can see how the river, just thrown there. We could home to go to, I know I can do these laws wipe out all spaces that see it, it was not gone but all soaking my best to try [and] keep myself could be open to them. “You can’t wet.” For others, having no claim to busy in the sense of staying be anywhere around here (343),” space which is theirs means a state away from the drugs, it’s just not they told us, echoing what they’ve of constant, grinding placelessness. having a fucking home to go to is heard said to them from just about “You can’t stay in one spot, you know, what’s really stopping me. – 427 everyone. “You guys have to go to they will be kicking you wherever the shelter if you don’t have a place you go (165),” he told us. “So you got • There should be a hotel opened to live.” no choice but to walk around all day up…That is what I was thinking long.” about doing. – 165 Annihilating spaces accessed by people experiencing homelessness When a person who has been Complex Problems, Simple homeless is finally housed the effectively seeks to annihilate them Solutions—but We Need Political 63 benefits are obvious. “So a lot of as people. For as long as a person Will continues to be alive, they will do so things have changed (165),” one in a human body, and will continue— Most people creating the policies that person said, of his recent experience in every moment—to need access both cause homelessness and render with securing housing. “My health, I to a physical space in which to be. it more dangerous and grueling will just got done doing Hep C treatment These laws, as we explore in Part never know the feeling of waking up and now I don’t have no Hep C. So 3: Why a Stigma-Auditing Process wet in a doorway with a police officer that is awesome, right. That is big. Matters for BC, are based in stigma. standing over them—something That is really big. My health is really which was not lost on the people we good now, so when I’m tired I can go They are fundamentally rooted in heard from. “I would love, like, the sleep.” ideological concerns about who is higher-ups to have to live the way we “deviant”, “uncivilized,” or a “menace” do, for even a weekend (362),” one All of us crave sleep when we are (homeless people) and who is woman said. tired, rest when we are sick, comfort “deserving” (people with land and when we are down, and warmth money).64 They seek to extinguish For many people we heard from, when we are cold. the existence of homeless people the solutions to homelessness are frustratingly simple: Laws, policy, and stigma are leaving without providing alternatives and people out in the cold. without consideration of the impact • No bells and whistles, just a they have on those lives. low-income housing section
63 Don Mitchell, “The Annihilation of Space by Law: The Roots and Implications of Anti-homelessness Laws in the United States” (1997) 29:3 Anti- pode at 303; see also Don Mitchell, The Right to the City – Social Justice and Fight for Public Space (New York: Guilford Press, 2003). 64 Nicholas Fyfe et al, “(In) civility and the city” (2006) 43: 5 Urban Studies at 853; Celine Bellot et al, Judiciarisation et criminalisation des popu- lations itinérantes à Montréal (Montréal : Rapport de recherche pour le Secrétariat National des Sans-abri rédigé, 2005); Marie-Eve Sylvestre, “Disorder and Public Spaces in Montreal: Repression (And Resistance) Through Law, Politics, and Police Discretion” (2010) 31:6 Urban Geography at 803.
30 Pivot Legal Society PART ONE: LIVED REALITIES Section Two Substance Use in Context
APPROACHES TO UNDERSTANDING SUBSTANCE USE—AND WHY WE NEED ALTERNATIVES Over the past century, theories about substance use have been polarized between a model of “addiction as a moral failing” and a model of “addiction as brain disease.”65 As we continue to learn more about the nature of substance use and addiction, it is easy to see why the “moral failing” theory, equipped with its absolute and punitive responses, is both untenable and harmful.
The medical model, which holds that people who use substances are suffering from a disease, has been endorsed by the federal and provincial governments. However, the over-medicalization (sometimes Substance use is a complex issue and analyses of peer-driven initiatives accompanied by institutionalization) there are myriad facets of drug policy such as Overdose Prevention Sites of people who use drugs can be just that deserve attention. This section (OPSs) and drug-user led groups as stigmatizing and disempowering does not offer a comprehensive centring the aspirations, self- as moralization and criminalization: analysis of drug policy frameworks determination, and liberation of The notion that people who use or treatment models. It does offer a people who use drugs. drugs are physically and cognitively brief introduction to the perspectives deficient and are therefore and lived experiences of participants The goal of this chapter is to incapable—or unworthy—of self- in this study who use substances. It provide some context, based determination can underpin both is complemented by other chapters on the experiences of people views. including Part 2.1: The Impacts of living in poverty while using While physical phenomena such as Police and Policing and Part 2.3: No substances, to ground the analysis dope sickness are real, it is important Access, No Support: Service Gap and and recommendations related to to understand that many of the Barriers, which provide more detailed service barriers, policing, and court conditions. harms associated with substance
65 Hanna Pickard, Serge H Ahamed & Bennett Foddy, “Alternative Models of Addiction” (2015) 6:20 Front Psychiatry, online: https://www.ncbi.nlm. nih.gov/pmc/articles/PMC4327176/.
PROJECT INCLUSION 31 A public health approach to addressing the health and safety harms associated with substance use must promote self-determination for people who use drugs and look at the role of stigma and prohibition in creating those harms. This lies at the heart of a growing drug user liberation movement.
use have to do with the legal context Several people explained that the DOPE SICKNESS KEEPS PEOPLE in which substance use occurs constant hustle to acquire the DOWN and social factors such as income substances they need to stay well has In one of the larger municipalities inequality, lack of housing, and a detrimental effect on every aspect we visited, people had so much to stigma, rather than anything intrinsic of their lives, including housing, share that we were forced to set to the substance. employment, education, mental and limits on the number of people we physical health, and interpersonal A public health approach to could speak to while we were in relationships. One participant town. Service providers and people addressing the health and safety described it this way: harms associated with substance use in the community kept making a must promote self-determination for The addiction thing is so point of telling us we needed to hear people who use drugs66 and look at prominent. My reason for living is from one man in particular, who we’ll the role of stigma and prohibition in to get more dope. And it doesn’t refer to as Participant 74. He had creating those harms. This approach leave a lot of extra time. Like, I a lot of relevant information, they lies at the heart of a growing drug don’t get my shelter portion of my explained. He was also well-spoken, user liberation movement. money unless I have an address… knowledgeable, and insightful. it’s very difficult for me to go to an He was the person they trusted A 2013 survey of 10 peer-run interview or to seek out a place to to effectively communicate their organizations for people who use go and rent it…I’m always waiting collective experience. drugs across Canada surfaced core for dope…It’s hard to understand When we sat down with Participant issues that impact the health and that, but, it’s stupid, but my life safety of drug users. The primary 74 on our second day in town, it is about dope right now—my was clear that his reputation was issues were all related to stigma, addiction. – 208 economic inequality, and the impacts well-earned. Up to date on local of criminal law: The prohibition model, informed by and federal politics, he had well- the notion that drugs are inherently informed opinions on a variety of • lack of access to affordable models for harm reduction, addiction housing; bad, is inextricably linked to stigma against people who use drugs. The treatment, and low-income housing • stigma and discrimination when social context of substance use provision, including peer-driven accessing housing and health under prohibition means that people models that empower people who care services; who use substances, particularly use substances to determine what types of services or interventions • police harassment, those who are marginalized based they need to make autonomous, criminalization, and the need for on their housing status, income, and informed decisions about their own drug policy reform; and other factors, are disproportionately subject to a range of harms such health and safety. He also explained • lack of harm reduction services, as criminal sanctions, fines and that on that particular morning, particularly in rural areas.67 tickets, and loss of employment he was extremely dope sick, the colloquial term for Opioid Withdrawal In the current regulatory context, opportunities. The threat of these consequences drives drug use further Syndrome. Although he answered all acquiring substances is a constant of our questions thoughtfully, it was struggle that can come to dominate underground, exacerbating illness and overdose amid a toxic drug clear he was in a great deal of pain people’s lives in a way that it would and discomfort. not if alternative avenues were supply. available.
66 Canadian Association of People Who use Drugs, Collective Voices, Effecting Change: Final Report of National Meeting of Peer-Run Organiza- tions of People Who Use Drugs, (Victoria, BC: Centre for Addictions Research of British Columbia, 2014). 67 Canadian Association of People Who use Drugs.
32 Pivot Legal Society From a purely clinical standpoint, every bit of liquid has already been GETTING TO NORMAL the symptoms of opioid withdrawal forced out of your body; the dull As he sat in agony, it was clear are considered to be among the ache as you wait for the next wave of Participant 74 had more to say, but most powerful factors driving opioid nausea to wash over you. Even lying we couldn’t continue peppering him dependence and addictive behaviors, in a comfortable bed, most people with questions for another hour. We causing symptoms like extreme would do anything to get well in that cut our interview with him shorter muscle cramps and diarrhea in people moment and this, we are told, is than we would have liked, but have 68 who have developed tolerance. only a fraction of what many people to admit that we considered asking While such medical accounts help to experience when going through him to come back to talk some explain the physiological processes withdrawal. more after he got well. The idea that underway during opioid withdrawal, injecting some combination of illicit it was in sitting with people as In addition to the biological characteristics of withdrawal, study heroin and fentanyl would result in they described dope sickness or a person being more engaged and experienced it in front of us that participants explained its social component, which is all too often attentive may seem counterintuitive, brought the physical and social reality but a number of participants spoke of the experience to life. omitted from clinical descriptions of the experience. Being homeless and about using drugs or alcohol just having no access to privacy means to maintain baseline functioning. “I experiencing your symptoms in hardly do drugs actually to tell you The prohibition public and facing a constant threat the truth now, I just do very little bit of law enforcement simply because (416),” one person told us, “just to model, informed by maintain.” the notion that drugs you are visible. The extent to which stigma, law enforcement, and lack Another person explained it this way: are inherently bad, is of services for people who use drugs inextricably linked to “I just use once a day. I just maintain, create and exacerbate symptoms of I’m not getting high. Like when you stigma against people withdrawal cannot be overlooked. see me, I’ve used today…Yeah, I’m who use drugs. I just have a hard time being dope just purely maintaining (239).” sick out there on the streets…I Over years of working alongside mean seven o’clock in the morning people who use drugs and alcohol, One man who desperately wanted when you’re being booted awake, we appreciate that substances to have a healthy and successful dope sick, in pain, and having can play a critical role in people’s relationship with his wife and stepson to deal with their faces, their wellbeing. Whether it’s conducting explained how the withdrawal uniform…I don’t like it, you know? an interview while driving someone symptoms he experienced affected – 74 to the liquor store so they don’t get his relationship. While it may be difficult for members sick or hearing from someone while of law enforcement to relate to that they inject drugs, using substances It feels like there is electricity can be the way people stay well and running just like very much under kind of illness while living outside— lying on a damp sidewalk without participate socially and politically. my skin, so whenever she touches This is an important counterpoint to it makes me cringe, and she is access to water or a bathroom— this gap in experience cannot popular but misguided perceptions of loving and so it’s hard on her, it’s drug use and its motivations. hard on everybody. She’s about justify routine enforcement and ready to give up…She said, “It displacement of homeless people by Participants’ descriptions of using [heroin] is more important to you police officers and private security. powerful drugs just to maintain than me.” I said right now, no it’s For those enforcing laws against or “get to normal” has a basis in not. But when I’m dope sick, I’m in those without homes, and for those neuroscience. As people continue the throes of it, and it’s the worst, providing services to the same to use opioids in larger dosages, I said yeah, unfortunately, it is the demographic, a more compassionate scientists believe the brain is altered most important thing in my world. and comprehensive understanding of so that function is impaired when – 239 the cross-section between addiction drugs are not present, rather than the 69 and homelessness is critical. other way around. That is the reality Imagine living through the most for many of the people who took part terrible stomach flu: the cold sweat in this study. that comes right before you throw up; the pain of dry heaving after
68 Thomas R Kosten & Tony P. George, “The Neurobiology of Opioid Dependence: Implications for Treatment” (2002) 1:1 Science & Practice Per- spectives at 13. 69 Kosten & George.
PROJECT INCLUSION 33 PATHWAYS TO SUBSTANCE USE his whole life, people in authority Many participants cited trauma, Study participants are aware of the have blamed him for his alcohol use anxiety, or depression as the problematic and harmful public and punished him as though he was reason they began or continue to narrative about substance use, which being deliberately defiant. use substances. For others, illicit dictates that people who use drugs drug use began following a critical Many others who talked about illness or injury; drug use is a way face challenges because they made early initiation into drug use have so-called “bad choices.” of dealing with physical pain. For since suffered additional trauma, example, Participant 74 explained I think they think it’s their own the cumulative effects of which that his opioid addiction began with fault or it’s our own choice and may lead people to increase their prescription hydromorphone. “It’s the if we wanted help we would do substance use. A participant who classic story,” he said. “Your doctor something about it, so they think was introduced to alcohol as a pre- gets you hooked on the prescription we did it ourselves, which initially, teen and who was using substances opiates, then they label you as a I guess is true in a way. We made regularly by the age of 13 is just one junkie and cut you off.” our choice to use, but like, at the example. When asked if he has physical pain, same time, it’s a complicated I haven’t seen my kids for years issue, and I don’t think somebody he replied, “Uh-huh. All the time, I’m and I suffered a lot of pain from treating pain, it’s my addiction…Yeah, should be punished for their whole that. And I don’t feel that I get life because of a substance. – 313 I think I’m labeled as an addict. Any sensitivity relative to, you know, time I go to the hospital it’s ‘drug- There was no single path to what is the underlying problem seeking behavior,’ even if I haven’t substance use among participants, with me. You know, I’m not doing gone in two years.” He is only one but some common themes emerged. dope because I think it’s fun of several participants who either because it’s not. It kills the pain, began or significantly increased illicit In a few cases, participants talked you know, and occupies my mind, drug use when they were cut off of about very extreme and deliberate so I’m not wondering about my prescription pain medication. abuse in early childhood. One man kids. – 208 (349) recalled his father shooting One man we interviewed who had him up with heroin when he was six Another woman currently seen his life fall apart in the months years old, after severely beating both experiencing homelessness shared leading up to his interview explained him and his mother. However, most her story of increased substance that he was first prescribed painkillers participants who spoke about early use after the apprehension of her in 2001, after a debilitating car 70 childhood trauma recognized that the children: “I’m trying to deal with the accident left him in chronic pain. He people raising them were themselves loss of having my two kids taken and explained his trajectory from patient dealing with the effects of poverty, just want to drink more, and then to criminal: “My wife was stealing my violence, and the intergenerational when you try to quit, there are just painkillers and the pharmacy called impacts of colonization. lots of stuff that sets you off again my doctor and said I was abusing my (96).” pain meds and they cut me off…a Several participants explained that week later I was shooting heroin For many people who shared stories they were exposed to substances (396).” in utero, and that they are now with us, mental health challenges living with the impact. “When I was played a major role in their substance He reflected on his health care younger, I was born an alcoholic use. Anxiety and depression, both provider’s decision to cut him off of baby, so, started drinking when I was diagnosed and undiagnosed, were this pain medication. six (165),” one person said. “Yeah, it common features in many participant started young.” narratives. Like they say it’s just because I was on too many painkillers and stuff Another person put it this way: I wanted to go on medication and that my tolerance is too high, “When I was born my mom was because maybe that’s why I do so they need me to, I don’t know— drinking, and so I got this alcohol drugs and stuff because maybe they are worried about my long- addiction (12).” I need medication…when I was term health. But it’s like, fuck, I younger I was already diagnosed don’t want to live in all that kind of When one Indigenous man was with depression and ADHD pain and not be able to be around asked whether he felt that people (Attention Deficit Hyperactivity my kids and enjoy them and stuff understood the context of his alcohol Disorder). And now I know I have and just be stuck there on a couch use, he explained that he doesn’t anxiety and stuff like that. – 226 like a fucking vegetable. You think they do. He believes that for know, like, yeah, I’d much rather
70 This story mirrors Pivot’s 2008 study “Broken Promises: Parents Speak about BC’s Child Welfare System” which found that child apprehen- sion was often a catalyst to increased substance use or return to substance use after a sustained period of abstinence, online: Online: http:// d3n8a8pro7vhmx.cloudfront.net/pivotlegal/legacy_url/310/BrokenPromises.pdf?1345765642.
34 Pivot Legal Society be on opioids and have my pain When asked if his doctor has would know the dose you’re getting… managed, so I can enjoy activities anything to say about the fact that he have a job again.” and stuff like that. – 396 is now using illicit drugs and involved with the criminal justice system, he Participant 74 only became reliant This man started using illicit replied, “Not much…That I’m a junkie on street opioids after he was substances nine months before he now, and I can’t take opioids (396).” prescribed pain medication. However, took part in this study. Now, he is he recognizes that substance use using street opioids daily to manage The patient-to-criminal trajectory is has been a chronic issue in his life. his pain and stave off withdrawal a common one, shining a light on Even before he got sick, he describes symptoms. Before turning to the the desperate need for improved himself as dealing with alcoholism. illicit drug market, he had not been access to prescription-grade opiates He is, however, extremely frustrated in trouble with the law for 16 years. and substitution therapies for people that as a result of his combined Now, after less than a year, he has managing complex pain that will substance use issues and chronic picked up four possession charges not dissipate upon being cut off illness, he has suffered approximately and nine breaches. He was first prescriptions. We asked one man a dozen near-fatal overdoses, charged with possession after being whether he would try prescription continues to live in constant pain, found injecting in a public park. It was heroin if it were made available. and cannot access appropriate not lost on him that if his community He had been working for years medical care, disability benefits, or had a supervised consumption site, while taking prescription opiates, housing. not only would he and other people and explained, “I would prefer that using the park have been safer, he because it would be covered under would never have been arrested. medical or something hopefully…you
Cutting People off Prescriptions is Causing Harm
While the goal of preventing people from becoming addicted to prescribed opioids is understandable, cutting people off prescriptions is causing immense harm. Many study participants were unable to access appropriate pain management despite struggling with very serious medical concerns. This in turn led to the use of illicit opioids. A woman who was living with advanced cancer and other secondary health issues was one example:
Interviewee: I had a doctor but he moved to Vancouver, so, but to find another one after that was really hard, that would write a triple script71 or whatever. No one wants to do that.
Interviewer: Did they tell you why they didn’t want to do it?
Interviewee: Just because they don’t have the means to doing it. Like they don’t have the triple script or whatever.
Interviewer: And was it painkillers that they’re not wanting to give?
Interviewee: Yeah, I’m on oxycodone because of cancer, right? It’s a pretty strong drug they consider.
Interviewer: So, the triple script, that’s?
Interviewee: That’s a painkiller. So, they can’t write it. Most walk-in clinics don’t have the rights to do it or whatever. They give you Advil or whatever, but good luck with that.
Interviewer: So what do you do when you can’t get it?
Interviewee: Use fentanyl. – 397
71 This respondent is referring to BC’s Controlled Prescription Program whereby prescriptions for specific controlled medications must be written on the duplicate prescription pad specially developed for this purpose.
PROJECT INCLUSION 35 Freedom of Information Request to the College of Physicians and Surgeons
Because the inter-related issues of opioid 3. All policies (e.g. guidelines, memos, In 2017, the College emailed members prescriptions and pain management handbooks) and training materials to solicit feedback on the Standards were top of mind for so many (e.g. seminar resources, PowerPoint and Guidelines though an online survey participants in this study, Pivot submitted presentations) relating to pain which closed in December 4, 2017. a Freedom of Information request to the management alternatives to opioid It is beyond the scope of this analysis College of Physicians and Surgeons (“the prescriptions. and of Pivot’s expertise to comment on College”) in October 2017 to try to get 4. All correspondence (whether in the appropriateness of the Standards a better understanding of the policies email, letter, memo or text message and Guidelines. However, it is clear that governing opioid prescriptions. format) discussing potential or actual the unique pain management needs We requested the following for the date changes to pain management policy. of people dealing with the intersection range January 2016 to October 2017. of opioid dependence, chronic pain It was clear from the volume of or illness, trauma, and homelessness 1. All policies (e.g. guidelines, memos, information we received—despite the require special consideration from the handbooks) and training materials short time window captured by the College, particularly in the context of a (e.g. seminar resources, PowerPoint request—that the College is grappling toxic drug supply upon which people presentations) relating to opioid with these issues. In June of 2016 the with addictions will necessarily rely if prescriptions. College released new Professional denied appropriate alternatives and Standards and Guidelines for Safe 2. All correspondence (whether in supports. Prescribing of Drugs with Potential for email, letter, memo or text message Misuse/Diversion (“the Standards and format) discussing potential or actual Guidelines”) and updated the standards changes to opioid prescription policy. twice later in 2016.
In the course of our HARM REDUCTION: WE NEED TO reduction supplies, such as clean interviews, it became WALK THE TALK syringes. clear that inadequate Despite the BC Ministry of Health’s In the course of our interviews, it access to health care longstanding commitment to became clear that inadequate access evidence-based harm reduction and to health care for people who use for people who use leadership in declaring a public health substances runs much substances runs much deeper than emergency in April 2016, illicit drug access to overdose prevention and deeper than access to overdoses claimed 1,450 lives in BC response. In some communities, 72 overdose prevention and in 2017. A toxic drug supply is of something as simple as a clean response. course a key determinant of these syringe is not accessible. fatalities, but so too is the social context in which this supply exists. One man in a northern community explained it this way: Many of these deaths are preventable, for instance, stemming Interviewer: from a lack of appropriate health Are you always able to get needles services for people who use and things if you need them? drugs. While BC—and Vancouver’s Downtown Eastside, especially— Interviewee: has received international acclaim Yeah, except for after 7 pm, like for embracing a harm reduction they got a van goes around when approach to substance use, an but if it’s on a weekend, there approach that prioritizes the agency, is nowhere to get needles or humanity, and health of a person anything unless we stock up for using drugs over their perceived the weekend, Sunday. Yeah, it’s a criminality, our research shows that little bit messed up that way. people who use drugs continue to face barriers to accessing harm Interviewer: So, do you know a lot of people
72 British Columbia Coroners Service, “Illicit Drug Overdose Deaths in BC January 1, 2008 – July 31, 2018”, (22 August 2018), online: https://www2.gov.bc.ca/assets/gov/birth-adoption- death-marriage-and-divorce/deaths/coroners-service/statistical/illicit-drug.pdf.
36 Pivot Legal Society who end up sharing or using used needles?
Interviewee: Oh yeah, absolutely. I have seen people picking up needles and using wherever they go in the street, fucked up, when I try to explain, you know, drug addicts don’t have holidays and you know, we don’t close our doors and go home, kind of the same thing fucking 24/7 all the time. They should be easier to get. – 266
Another participant explained that he had witnessed his girlfriend picking up used syringes because the inconsistency of harm reduction services in her community left her no other option.
I’ve seen [her] pick syringes up off the ground and use them because we couldn’t find nothing. If it’s after 11 o’clock, you cannot get a hold of them. So, you either know somebody that’s got some or you don’t use it. So, people with all this—they’ll just walk downtown and looking in the flower things and they’ll see one sticking out of the dirt—they’ll grab it and they’ll use it…The percentage of people that have endocarditis stuff up at the hospital here are big. – 90
Despite the fact that distributing sterile needles to people who use drugs without requiring the return of used needles is the established best practice,73 in his community, needle mean that they can be sent to jail for But you know, I know they need distribution operates on an outdated carrying new or used harm reduction funding for that, and you know, one-for-one exchange model. He supplies. volunteers and stuff, right. – 256 explained that this leads his girlfriend to disengage from the service In other communities, people’s For her, access to a seven-day-a- provider and forces her to engage access to harm reduction is limited week OPS is actually a matter of life in unsafe practices, such as reusing because services are not open often and death. When asked where she injection equipment. enough. One woman in her 50s told goes when the site isn’t open, she us of how the weekday operating explained that she goes to the railway In addition, Part 2.1 shows that police hours of harm reduction services tracks to use, where she has already are interfering with access to harm in her community do not meet her experienced an overdose (256). reduction equipment by seizing or needs. destroying injection equipment. Several study participants reported In Part 2.2, courts are limiting I would like the [local overdose that they had suffered overdoses access to harm reduction supplies prevention site] to be open more, while smoking illicit substances by giving people on bail “no carry you know, like Saturday, Sunday (including stimulants), and many paraphernalia” conditions, which instead of just Monday to Friday… more non-injection drug users
73 Carol Strike and Tara Marie Watson, “New best practice guidelines for harm reduction programs promote needle distribution”, CATIE (2014), online: http://www.catie.ca/en/pif/spring-2014/new-best-practice-guidelines-harm-reduction-programs-promote-needle-distribution.
PROJECT INCLUSION 37 reported that they are afraid of substantial health improvements for an opioid currently used to treat overdosing. However, there are few participants as well as remarkably moderate to severe pain, more OPSs available for people who smoke high retention rates in the program. widely available as a form of addiction illicit drugs. Participants’ involvement in illegal treatment.76 activities were cut by nearly half. Overall, participants who did not have Rates of illegal heroin use dropped Evidently, the regulation of access access to supervised consumption dramatically, as did the amount of to prescription-grade heroin has services stated that they would money spent on illicit drugs.74 significantly improved in recent years, use them if there were available. particularly in BC, where the drug “Everybody probably would, instead Despite the overwhelming success can now theoretically be prescribed of hiding somewhere in the bush of such programs, prescription-grade and administered in much the same (266),” one person told us, capturing heroin has not yet been made readily manner as other narcotics. Despite the sentiment of many participants. available for those who need it across these legal improvements, access Canada. As the drug is not approved is still extremely limited, and only While these sites play an important for sale domestically, doctors have a pocket of individuals in North role in reducing harms, you will see been forced to apply for permission America (patients of Vancouver’s in Part 2.1: The Impacts of Police to prescribe it under the “Special Crosstown Clinic) currently access and Policing that policing practices, Access Program”—a costly and the drug by prescription. While this including surveillance around OPS, burdensome process that must be is in part owing to the fact that there continue to undermine access in carried out every three months on a are no manufacturers of the drug in some BC communities. patient-by-patient basis. Canada (thus limiting its distribution to the above-mentioned avenues Ending the Street Hustle: The current federal government has in exceptional circumstances), the Alternatives to an Illicit Drug Supply been chipping away at regulatory problem lies primarily at the level barriers to the drug. In April of Participants who use opiates were of prescription and dispensation. It 2017, Health Canada announced interested in alternatives to the appears that medical practitioners regulatory amendments to allow illicit toxic drug supply and reported are still highly reticent to prescribe for the importation and sale of that they would welcome the diacetylmorphine, even where a heroin through the Importation of possibility of accessing prescription failure to do so means that a patient Drugs for an Urgent Public Health hydromorphone or diacetylmorphine will rely on street heroin. The number Need process. Federal, provincial, (heroin) in their community. of pharmacies or locations that stock or territorial public health officials the drug is also minimal. One man explained that a program can notify the federal Minister of that provided prescription-grade Health of an urgent need to access While it is beyond the scope of heroin would be a good thing diacetylmorphine. Access is then this report to discuss prescription because “at least you know what’s permitted by notifying jurisdictions guidelines and stigma within the in it (175).” Another man said he (which, at the time of writing, only medical profession as they relate would participate if such a program includes BC) for a period of one to heroin, the success of heroin- were available, and saw it as an year, subject to a renewed request. assisted treatment in Vancouver and opportunity to get his life back and In March of 2018, the Federal internationally point to a desperate “have a job again (396).” Health Minister announced further need to integrate the drug within regulatory changes, making it the existing spectrum of prescription Heroin-assisted treatment is a possible for physicians and nurse narcotics. The toxicity of street well-tested, life-saving intervention. practitioners to prescribe and heroin and the extent to which it is Research trials carried out both locally administer prescription-grade heroin relied upon by people who use drugs (at Vancouver’s Crosstown Clinic) outside of a hospital setting at make clear that there is also intense and internationally (in Switzerland, other treatment facilities, such as urgency at a provincial level to scale Germany, the Netherlands, Spain, substance use disorder clinics.75 BC up access to prescription-grade and Denmark) have proven its also issued new guidelines in the fall heroin for those who need it through significant health and safety of 2017 on injectable therapies for both funding and education. benefits for long-term opioid users. opioid use disorder, with a focus on Vancouver’s studies demonstrated making injectable hydromorphone,
74 “Results of North America’s First Heroin Study (NAOMI)”, Providence Health Care, online: http://www.providencehealthcare.org/salome/nao- mi-study.html. 75 “The Honourable Ginette Petitpas Taylor, Minister of Health announces new measures to reduce barriers to treatment and $231 M to address the opioid crisis”, Health Canada, Government of Canada (2018 March 26), online: https://www.canada.ca/en/health-canada/news/2018/03/ the-honourable-ginette-petitpas-taylor-minister-of-health-announces-new-measures-to-reduce-barriers-to-treatment-and-231-m-to-address- the-o.html. 76 “Guidance for Injectable Opioid Agonist Treatment for Opioid Use Disorder”, BC Centre on Substance Use (2017), online: http://www.bccsu.ca/ wp-content/uploads/2017/10/BC-iOAT-Guidelines-10.2017.pdf.
38 Pivot Legal Society Substance Use and Social Condition While opiate addiction currently gets mine that have died—like girls my In examining public narratives about the most public attention, stimulant age. Not even due to overdoses, substance use, we saw that there use is a real and growing issue. This but due to…the cold. – 313 is a prevalent belief that people is particularly true in the case of should be abstinent before they methamphetamine, whether on its are offered housing. The reality is own or in combination with other “If I didn’t do speed I’d substances. Methamphetamine has that in some cases, substance use actually be hungry and can contribute to homelessness become easier to obtain (and at a 78 I would be starving. but in many cases, drug use starts, lower cost) than some opioids. resumes, or escalates as a by-product I have nowhere to Since 2005, there has been a sleep, so why would I of homelessness. 600% increase in the use of sleep? I have nothing Most respondents we spoke to were methamphetamine at Insite, one of clear that being homeless meant Vancouver’s supervised consumption to eat, so why would I they used more substances. One sites. Some addiction experts bother eating when I man explains the dynamics at play. report feeling challenged to treat can survive off of $10 a methamphetamine users because of day?” – 362 [I use drugs] to stay warm. Just to the lack of proven pharmacological you know, kill the pain…Thankfully treatments for stimulant addiction.79 I didn’t have to go through last winter but you know, there has Expanding the range of medical For people who are experiencing been several winters where I interventions to help people address over-policing as a result of their had slept outside and I just put methamphetamine use would be homelessness, contemplating blankets over top of a dome tent positive, but it is equally as important treatment can be out of reach and just try to keep as much heat as I to address the reality that living even the most basic harm reduction can. – 239 outside in deep poverty makes services, such as syringe distribution, stimulants attractive. can be obstructed.
Regardless of the particular There’s the needle exchange In some cases, substance substances they use, a number of and the doctors. It’s just hard to people we spoke to explained that use can contribute to access because you’ve got to find getting or staying abstinent while someone to watch your stuff. I’ve homelessness but in homeless is next to impossible. As got to find someone to watch many cases, drug use one woman explained, “I know I can’t my cat too because I don’t [want] starts, resumes, or kick it until I get housed. That is my anyone to get my tent and take escalates as a by-product main thing. There is no fucking way my cat too, right. You know what I can kick it without having my own of homelessness. I mean. I’ll be devastated if they housing, because you just you need took my cat. – 49 your own place to run to (427),” she said. Many of the harms that are generally For many people who shared associated with specific substances Another woman shared a similar could be alleviated through small their stories with us, using drugs, view. particularly methamphetamine,77 is improvements in the standard of living of people who use substances. an adaptive strategy in response to Housing…that’s the biggest thing… Not only would this make people’s crippling poverty, homelessness, and you can’t do anything without current level of substance use safer, the dangers of living in public space. housing. You can’t get clean. You in many cases it would likely lead to can’t go to work. You can’t do reduced substance use. If I didn’t do speed I’d actually be anything, you’re fighting off…the hungry and I would be starving. cops, bylaw, the elements, the fact On a financial level, many of the I have nowhere to sleep, so why that it’s raining ten months out of would I sleep? I have nothing to changes that would help improve the the year and you can’t even keep lives of people who use substances eat, so why would I bother eating dry, they are taking your tents and when I can survive off of $10 a are relatively cost-effective to your tarps and your clothes and implement in the short term, and day? – 362 you’re soaked…I know friends of
77 Participants use a variety of terms, such as meth, crystal, and speed to describe methamphetamine and similar stimulants. 78 Andrew Lupton, “Here’s a list of the drugs clients are using at London’s overdose prevention site”, CBC News (12 July 2018), online: https://www. cbc.ca/news/canada/london/drug-use-list-overdose-1.4743222. 79 Ferrah Merali, “Crystal methamphetamine: the ‘elephant in the room’ on Vancouver’s Downtown Eastside”, CBC News (21 November 2017), online: http://www.cbc.ca/news/canada/british-columbia/crystal-meth-increase-seven-fold-1.4404492.
PROJECT INCLUSION 39 One of the most effective ways to address some of the harms associated with prohibition and stigma is resourcing people who use substances to organize themselves. In the cities we visited where drug users had access to peer support and self-determination through collective organizing, participants were more keenly aware of the roles played by society and stigma in marginalizing people who use drugs. They were quick to point out the importance of community and peer support in combatting stigma, supporting one another, and upholding harm reduction principles. It is a critical tenet of our analysis that the financial and principled support of drug users to collectively organize is key to challenging the stigma that is at the core of their current marginalization.
likely to save money in the long and rejection, particularly where this day, right. I still carry that shit term.80 However, another factor substance use intersects with around too, right? – 59 stands in the way of evidence- other stigmatized identities such as based policies to improve the homelessness, reliance on income Those internalized feelings of shame, social condition of people who use assistance, or Indigeneity.82 Those which can hamper both harm substances: stigma. external experiences of stigma can reduction and recovery efforts, are lead to the type of internalized self- often preceded and reinforced by Public Stigma, Enacted Stigma, and stigma83 that is evidenced in the stigmatizing behavior and language Self Stigma narratives of some participants in this in the community, in the media, and project. when seeking health services. No matter where we went in the province, or what substances an Deep-seated feelings of shame One of the times I was in there individual was using, a clear theme can impact people’s ability to move overdosed, one of my friends that emerged was widespread forward even after getting help to started getting up and yelling at stigma—from police, health services, reduce or stop drug use. One young them because the nurses were and the public—which in turn leads man who began using crack when reading my medical chart in to the internalized feelings of he was 17 and who had recently front of a bunch of people and shame and self-blame. Based on completed a treatment program citizens and stuff and laughing our conversations, the internalized talked about the shame with which about it and stuff…overdoses and feelings of shame that substance he continues to live. mental health issues, anxiety, and users experience seemed to be depressions. – 396 directly tied to the high level of I was out of control with my public stigma directed toward them. crack addiction, right…actually The impact of ongoing experiences Where public stigma is present, stole off everybody, especially of diffuse public stigma and members of the broader society my dad. I stole everything that I discrimination drive people away generally ignore or actively support could, right…I stole so much from from services, exacerbating the discrimination against a particular my family, again, like so many harms associated with substance group.81 People who use substances different items that I have stolen, use and increasing social exclusion. may also experience enacted stigma I still feel like a piece of shit to At the same time, stigma underpins in the form of direct discrimination
80 “Cost Analysis of Homelessness”, Homeless Hub (2013), online: http://homelesshub.ca/about-homelessness/homelessness-101/cost-analy- sis-homelessness. 81 Kulesza Magdalena, Mary E. Larimer & Deepa Rao, “Substance Use Related Stigma: What we know and the Way Forward”, (2013) 2:2 J Addict Behav Ther Rehabil, online: 10.4172/2324-9005.1000106. 82 Magdalena, Larimer & Rao. 83 Magdalena, Larimer & Rao.
40 Pivot Legal Society our punitive drug laws, which create which is making it very much wine.’ They just dumped both on us further harms. harder to quit. – 239 (102).”
One of the most effective ways While many participants took steps He explained that having their liquor to address some of the harms to minimize the risks they faced poured out has no impact on the associated with prohibition and when using illicit drugs, there are amount that he and other people stigma is resourcing people who use limits to what they can do to protect who are homeless in his community substances to organize themselves. themselves amid an increasingly drink. Instead, police pouring out In the cities we visited where people toxic street supply. One man, who their liquor just means they have who use drugs had access to peer does not purposely use opioids, to “hustle” harder—or spend what support and self-determination described his experience with an minimal money they have—in order through collective organizing, opioid overdose while using what he to replace what was confiscated and participants were more keenly aware thought was a stimulant. to stave off alcohol withdrawal. This of the roles played by society and can have serious consequences for stigma in marginalizing people who They give me a smash, they mixed people’s health. use drugs. They were quick to point it all up everything, I stuck out out the importance of community my arm. And I said this: it’s got and peer support in combatting opioids in it or something…seven Narcan shots in the hospital and I stigma, supporting one another, and Using an illicit upholding harm reduction principles. threw up for like two or three days afterwards. It’s awful, man. So it substance is not the It is a critical tenet of our analysis that can happen, you know, even when only determinant of the financial and principled support of you’re vigilant. – 208 criminalization. In people who use drugs to collectively some communities, organize is key to challenging the Alcohol Use: Modern-Day stigma that is at the core of their Colonization and Criminalization homeless people who current marginalization. drink alcohol are heavily Prohibited substances under the Controlled Drugs and Substances policed, suggesting that Managing the Risks in an Act84 are affiliated with particular the criminalization of Unregulated Market harms flowing from forced reliance addiction has as much to Study participants generally on an unregulated supply and the do with social condition, understand the inherent risks constant threat of criminal sanctions. and in many cases associated with the drugs they use. As we travelled through the province, However, they also recognize that however, it became very clear that Indigeneity, as it does many of the harms they face have using an illicit substance is not the with the legal status of much more to do with stigma- and only determinant of criminalization. In the substance a person prohibition-based laws and policies some communities, homeless people ingests. than with the pharmacological who drink alcohol are heavily policed, properties of a given substance. suggesting that the criminalization of addiction has as much to do with Everywhere we went, participants social condition, and in many cases The fact that he is homeless, talked about the dangers of relying Indigeneity, as it does with the legal and therefore drinks in public— on an increasingly toxic, illicit drug status of the substance a person combined with the fact that the supply. ingests. courts frequently impose sobriety I’m using right now fentanyl… In one community where illicit drug conditions on people charged or well, I wish it was heroin, but use appeared to be relatively rare convicted of crimes—means that as unfortunately it is not…I was on but alcohol use was very prevalent, well as having spent countless nights methadone and then I transferred one Indigenous participant explained locked up in the drunk tank, he now to Suboxone about a year or two that he, his friends, and his family has a 13-page criminal record, mostly ago and was doing quite well, were constantly targeted by the as a result of having breached his until this just little slip-up and like police while drinking in public spaces. sobriety conditions. I just wasn’t. I wasn’t ready for—I He shared a recent story of losing If I was sober, I would never have wasn’t prepared for how strong his alcohol to police. “We had two a record. That’s what everybody the fentanyl was. And I’m going bottles of unopened wine…haven’t tells me. That’s what all the RCMP through all this stress too, you cracked it. The cops just roll up and (Royal Canadian Mounted Police) know all of this new stress too… then they’re like, ‘oh, let me see that tell me and the lawyers and the
84 SC 1996, c 19.
PROJECT INCLUSION 41 judge and everything because such as managed alcohol programs life stemming from the program, I’m a well-educated and smart and so-called “drinker’s lounges.” including health improvements, and respectful person, but yeah, These groups, which foster harm social connections, and a decrease in just the alcohol, that gets me. I’m reduction and safer consumption interaction with law enforcement. trying to get treatment. I want to practices, are also a critical source try to get better. I want to better of support and community. In the Addiction may have underlying my circumstances because I’m communities we visited where biochemical roots, but many of the tired of sleeping in a bush. – 102 such groups exist, participants negative impacts of substance use were able to identify social and are socially and legally constructed. The harms described by this man legal barriers to their well-being and Prohibition—combined with stigma, after police confiscated his alcohol oftentimes played an essential role criminalization of homelessness, can be contrasted with the benefits in law and policy reforms to ensure racism, and economic policies that described by participants in one of the protection of their rights. They keep people trapped in extreme our focus groups who were able to were also able to point to various poverty—intensify substance use and access potable alcohol without fear improvements in their quality of amplify harm to individual users and of police intervention through groups the communities in which they live.
MethaDose Treatment: Widely Available, Riddled with Barriers to Access
Currently, MethaDose85 (more Another woman noted that for people Like many participants in this study, commonly referred to by its former who consume fentanyl on a regular she was eventually kicked out of the name “methadone”) is one of the most basis, getting a high enough dose of methadone program completely widely available opioid treatments in BC. methadone is particularly important. because she missed appointments with However, there are still major barriers her prescribing doctor. As far as she is The addiction is really high and if it’s to accessing it. Stigma underpins every aware, there is only one doctor who fentanyl and they are doing a lot of point of the treatment delivery process. prescribes methadone in her community. it, most people aren’t going to make And in many communities, people who She spoke to the doctor because she was it, past their first week. They’re going need it still struggle with unavailability being threatened by a male patron at the to use again if they are not on a high and barriers to access. clinic and asked that her appointments enough dose of methadone. So it’s be scheduled at a different time. Many participants felt that their getting the methadone prescription However, her requests were ignored. methadone doctor was disregarding at the right dose, just so someone their rights and arbitrarily restricting stands a chance at getting off of the And it was a combination of my their access to the drug. One woman shit. – 313 fault and my doctor’s fault and my from a small community who was on doctor’s office because [name] was One of several participants who had methadone for 13 years, stopped using it threatening to kill me. And I told my to access methadone at a major retail because of how her doctor was treating doctor’s office…So I’d show up there drugstore explained being subjected to her, and then resumed taking it after and he’d be there and he was like special agreements with the pharmacy learning about her rights as a patient threatening to break my neck and so rather than being treated like other and a methadone user. “I’m back on it I had to leave the doctor’s office…So I patrons. because I don’t want to be sick every ended up getting kicked off and I was morning (181),” she said. Even though I’ve had to sign something from on it for like seven years…I just never she is technically in treatment as a my drugstore saying that I wasn’t went back on it. – 262b methadone user, her circumstances allowed to be in the drugstore like, For people who are homeless, are far from ideal. She explained that I could come in there and get my methadone treatment is particularly her dose was cut after she missed an methadone, but I had to immediately difficult to maintain because of strict appointment, meaning that her dose was leave after I took it…Because they rules around its administration. One not high enough to stave off withdrawal think you’re a thief if you’re on it, I woman explained the situation: “It’s hard symptoms. guess. – 262b to get my methadone if I have to camp It is beyond the scope of this study She explained that this had nothing to and I have to go and get it (439),” she and Pivot’s expertise to comment do with past arrests or any history with said. When asked what happens if she on appropriate methadone dosages. the store. “No, I think it’s…to do with the misses methadone appointments, she However, this woman was not the only drug scene (262b),” she said. “If you’re replied, “If I miss two of them, then they participant to mention challenges to on methadone, then there’s a lot of drug cut my dose down.” being prescribed a dose high enough stores that say you cannot be in the These barriers frustrate access for the to stave off withdrawal symptoms, drugstore.” very people methadone programs are especially at the beginning stages of meant to serve. treatment.
85 BC replaced Methadone with MethaDose in 2014, but many participants continue to refer to the treatment as Methadone. According to the BC College of Pharmacists, MethaDose was developed to reduce activities such as injecting it versus ingesting it orally. Many patients who were switched from Methadone to MethaDose find it less effective. For a full discussion of the impacts of the change see: http://www.cbc.ca/news/canada/british-columbia/drug-users-say-methadone-formula-switch-contributed-to-b-c-s-opioid-cri- sis-1.4274180.
42 Pivot Legal Society Treatment Myths and myself after. I had nowhere to go, after he completed treatment for Misconceptions nowhere to turn, there is a waitlist alcohol use. When we discuss the need for more for everything else that I needed low-barrier services, harm reduction to do to be able to stay clean and THE SOLUTIONS EXIST, BUT programs, and shifts in how police there just wasn’t anything out STIGMA STALLS PROGRESS there for me…No one to turn to, approach substance use, we are Notably, research on stigma as it no resources, no place to stay, it often met with the refrain, “they just relates to substance use is less was, it’s really, really fucking hard need treatment” or “force them into robust than research exploring you know. Like it fucking killed treatment.” The reality is much more stigma related to HIV or mental me, when I fucking did that first complex. health issues. Some researchers have shot. After that, I started bawling posited that the paucity of research because I knew that’s all I knew. All For people who make the decision to on stigma and substance use is I knew what to do was go back to stop using substances, immediate due to widespread acceptance that doing drugs, because I knew no detoxification services are often stigmatizing attitudes toward people one was going to help. – 427 required. However, these services are who use drugs are justified.86 In not readily available. One participant order to address public health issues experiencing homelessness had The concern about what happens after treatment was relatively related to substance use and to attempted to access detox and protect the health, safety, and human eventually gave up; she explained universal among participants of this study, regardless of their rights of people who use drugs, that that she was told there would be an needs to change. approximately six-week wait. “That’s housing stability or instability upon the thing: when an addict wants to entry. The fact is that treatment get clean, they want to get [in] right programs can disrupt and destabilize then (181),” she said. “Then, there regular routines and schedules, Some researchers have was no places to go.” and participants require adequate posited that the paucity supports both during and after of research on stigma A lack of detoxification beds is only treatment in order to maximize its one of the shortcomings of BC’s effect. This idea was captured by one and substance use is patchwork of addictions services. man in his late 50s. due to widespread As discussed earlier, there is also a acceptance that I decided to deal with my alcohol lack of access to injectable opiate stigmatizing attitudes replacement therapies. problem in the springtime of this year. I spent 10 weeks at a place toward people who use called [treatment centre]. And, to drugs are justified. For Treatment to Be a Success, go there I had to leave my job at People Need Wraparound Supports [store], which is also where my Several participants talked about wife works. I went to treatment how the lack of access to essential and since springtime I’ve been An analysis of 28 studies looking at supports like housing following doing quite well not drinking. I the relationship between substance treatment programs makes ongoing wrote an apologetic letter to the use and stigma identified one success almost impossible. One manager, but I was unable to get consistent finding in all of the participant who had actually quit my job back though because of a available literature: stigma has a opioids cold turkey in the past principle she had to uphold. Due detrimental effect on psychological 87 explained how the lack of housing to only one income between my well-being. Stigma is a barrier to and other support meant she went wife and I, we were repeatedly late seeking treatment where it is desired back to injecting illicit opioids. with our rent, which eventually and available. It also prevents people caused the eviction from that from disclosing information related to It was a 15-day struggle of place…I had to take time off to substance use that may be valuable excruciating pain that I went recover from addiction. I couldn’t for health care providers or other 88 through, but I did it and I did get work right away. – 148 service providers. Stigma related to it on my own and had to give substance use also keeps lawmakers myself a pat on the back when This man now lives on a mat on the trapped in a prohibition mindset, I was fucking done because it’s floor of the local homeless shelter and people who use substances not often you get it successful. I and is about to begin treatment for trapped in a cycle of criminalization did it on my own, unfortunately, cancer, with which he was diagnosed and poverty. All of this contributes to I didn’t know what to do with social exclusion and other harms.
86 Magdalena, Larimer & Rao. 87 Magdalena, Larimer & Rao. 88 Magdalena, Larimer & Rao.
PROJECT INCLUSION 43 PART TWO: CHANGE THE SYSTEM Section One The Impacts of Police and Policing
On the whole, study participants’ reactions to engagement with police ranged from exhaustion at constant experiences of displacement, to anger as a result of a lifetime of harassment, to absolute fear.
As we made our way around the toward them was connected to public they’re breaking your rights, but province, it became clear that safety. it’s your word against theirs, so regardless of demographics or good luck. You’re better off to just regions, both the police, as an A participant experiencing let them do what they’re going institution, and policing, as a set of homelessness summed it up when to do, otherwise they just kick practices, were top of mind for study she recounted a recent interaction the shit out of you and then do it participants. In every community we between her boyfriend and a local anyway. – 175 visited, we learned that there were Royal Canadian Mounted Police very high rates of interaction between (RCMP) officer: “Just about five days It is important to note that police and people who lived in public ago, they came to our camp and they particularly in smaller communities, space, with many people reporting called [name] a worthy target (181),” where people are known to one that police approached them more she said. “And he was like, ‘How am another and the police, a single than once a day. For the people we I a worthy target? I live in a fucking officer can have a profound impact on talked to, these interactions were tent.’” the lives of the individuals with whom only experienced as helpful in a they interact. In some communities, Despite the concerns people had small minority of circumstances. there were officers whose names with police behaviour, few had ever On the whole, study participants’ became familiar to us within hours made a formal complaint. Many reactions to engagement with police of arriving because participants and participants expressed that they ranged from exhaustion at constant service providers alike felt targeted are resigned to the fact that they experiences of displacement, to and harassed by these officers. are not considered credible when anger as a result of a lifetime of However, we need to place those they speak out against police due harassment, to absolute fear. individualized experiences in the to their homelessness, reliance on context of a set of institutional As they attempted to survive with government assistance, use of illicit policing practices in BC. The striking minimal access to resources, people substances, involvement in sex work, similarity and continuity of stories we who took part in this study found it and criminal histories. heard across the province attests to difficult to make sense of how the this idea. Most of the time they don’t even level of police attention directed ask, they just tell you to get up against the car. And I mean, yeah,
44 Pivot Legal Society In BC, “the police” comprise several FINDINGS RELATED TO POLICE RCMP officers are only one institutions. Eleven municipalities Current policing practices are element of an all-encompassing are policed by their own municipal not creating safety for people and oppressive network of police forces; the rest of the province experiencing homelessness, people policing that also includes bylaw is policed by the RCMP, the largest who use substances, people scraping officers and private security police body operating in BC. The by in the grey economy (the informal guards; Metro Vancouver Transit Police economy in which labour standards • Indigenous people living in also provide cross-jurisdictional do not apply and which serves as a deep poverty, particularly policing services on transit property crucial form of income generation those who live in public space throughout the Lower Mainland. As for many people experiencing or consume alcohol in public, part of this project, we visited two homelessness or using substances, are especially over-policed municipalities policed by municipal this includes things like collecting and routinely subjected to police forces and eight municipalities recyclables and panhandling), or the arbitrary punishment and policed by the RCMP. broader communities in which they detention, especially in northern Our sample size does not allow live. Specifically: communities; for a full, structured comparison • in the context of longstanding • people affected by over-policing, of policing experiences in different public health efforts to discrimination, harassment, jurisdictions within BC, and it is reduce rates of Human destruction or seizure of beyond the scope of this study to Immunodeficiency Virus (HIV) belongings, detention without offer a point-by-point comparison of and Hepatitis C Virus (HCV) charge, or use of force by police differences in practices between the among people who use drugs do not feel that there is recourse various police forces that operate and an unprecedented opioid available to them; and in BC. However, some key issues crisis, police are routinely • across BC, regardless of seem to be more prevalent in RCMP disrupting harm reduction jurisdiction, people who took jurisdictions, which are detailed in activities and contributing to less part in this study are extremely this chapter. safe substance use practices; distrustful of police and most • for participants living in public would be reluctant to call the space, municipal police and
PROJECT INCLUSION 45 police if they were in danger or The cops were going to [take my had been a victim of a crime. harm reduction supplies] and I said that I work with these guys [the POLICE INTERFERE WITH HARM street nurses], making sure that REDUCTION ACTIVITIES people have this shit, and then they left me alone after that. The Despite a strong commitment to street nurses tell folks to say that harm reduction at the provincial they’re working for them so they level,89 police in communities are harassed less by police and across BC continue to disrupt harm bylaw. – 105 (focus group) reduction activities. In many cases, policing practices misalign with local One woman explained that because health authority initiatives aimed at police search suspected substance reducing new HIV and HCV infections users for harm reduction supplies, and preventing overdose deaths. people often hide or discard supplies less safely. This leads to harms for We learned that in several “That is a hell of a lot of the individuals who are forced to communities, harm reduction money to put out harm use less safely. It also means harm supplies provided by health reduction supplies are more likely reduction supplies just authorities and local service providers to be left outdoors or improperly to have the cops take are being seized or destroyed by disposed of. Plus, health authorities them, it’s stupid because police. One man told us: have to purchase more supplies than health gives them out.” Police take all my supplies all the would otherwise be necessary. “That – 221 time. I was doing what I thought I is a hell of a lot of money to put out had to do and just because I had harm reduction supplies just to have supplies doesn’t necessarily mean the cops take them (221),” she said. that I had drugs on me all the “It’s stupid because health gives them time, either, because I didn’t. Once out.” in a while I had drugs on me, but In some cases, participants reported that is [neither] here [nor] there. that the police in their community are That is irrelevant. – 165 inconsistent in how they handle harm Police seizure of harm reduction reduction supplies. supplies points to a clear disconnect There are times where I’ve had between provincial health policy and a pocket full of dope, and crack policing practices. On the one hand, pipes, and speed pipes, and shit people who use substances are on me. And they ask me if I have actively encouraged to access clean any pipes on me and I tell them harm reduction supplies and on the yes. And you know, sometimes other hand, carrying those supplies is they smash them, sometimes resulting in punitive responses from they just put them on the ground police. and walk away and say, ‘When I’m One focus group participant gone around the corner, you pick explained that police seizure of harm it up.’ – 28 reduction supplies makes it difficult What is clear is that despite for people who use substances participants’ commitment to using to engage in peer outreach. He substances more safely, seizing harm explained that local health nurses reduction supplies does not deter must educate people who use substance use. drugs not only about effective harm reduction practices but also how to However, as one man explains, avoid having supplies taken by police. seizing these health care supplies does cause measurable harm,
89 The province supported Insite, North America’s first supervised consumption site, was the first province to declare a public health emergency in April 2016 in response to the mounting death toll from opioid overdoses, supported overdose prevention sites operating without S. 56.1 exemptions from the federal government, created a new Ministry of Mental Health and Addiction in 2017, and supported the introduction of a new Overdose Emergency Response Centre.
46 Pivot Legal Society regardless of the lengths that most Police Presence and Access to Safe In one RCMP jurisdiction, we had the participants will go to secure safe Consumption Services opportunity to witness the impact supplies. One participant revealed In some communities, people who of over-policing outside the OPS to us that he contracted HCV use drugs now have access to firsthand. The site in this community because he was forced to share harm Overdose Prevention Sites (OPSs) is only open a few hours each day. reduction supplies with his partner. where they are able to consume One weekday afternoon, we were “[The police] pulled us over, ran our illicit substances in the presence of having a conversation with a service names, searched us, and taken stuff someone trained to provide rapid provider who was explaining that like that before (459a),” he told us overdose intervention without fear the police often patrolled the area about police checks that resulted in of arrest. Not only does this mean around the nearby OPS, when a client having their harm reduction supplies that a person can get immediate chimed in and told us that the police confiscated. When asked about medical intervention in the event of were out front arresting someone whether he had to reuse or share an overdose, it also means that they right at that moment. We walked equipment because of such police can take steps to prevent overdose in over to the site expecting things to seizures, he replied, “Yeah. I ended the first place, including using more be wrapping up by the time we got up contracting Hep C because of— slowly, and in some cases, receiving there. Instead, we arrived on the we’ve had to share equipment and assistance from peers as needed. scene to find a police car, lights on, she had it and didn’t know.” Despite parked directly outside the OPS in their efforts to find and purchase The success of the OPS model the middle of the two-lane street. more supplies from local drug stores, in saving lives is undeniable. For There was an old car parked directly they were unable to secure sufficient instance, between December in front of the door to the site with all supplies to meet their needs. 2016 and March 2017, OPSs across four doors and the trunk open. Two the province saw approximately uniformed officers were searching Distribution of harm reduction 66,600 visits, 481 overdoses, and the vehicle. supplies is one of the most widely zero fatalities.91 Even more striking, accepted measures that public between December 25, 2016 and By the time we arrived the search was health officials can take to prevent October 9, 2017, the grassroots, well underway. Based on its contents, 90 blood borne infections. Choosing largely peer-run Overdose Prevention it seemed likely that someone lived to carry and use clean supplies is an Society running in Vancouver’s in the car. The officers worked slowly, important step that most people who Downtown Eastside alone had removing item after item, placing it use drugs are eager to take to protect 108,803 visits, 255 overdoses, on the street and sidewalk directly their health and that of other people. and zero fatalities.92 Despite the outside of the OPS. We watched life-saving feats carried out in the events unfold for nearly an hour. Police officers across BC should be During that time, we saw several actively promoting the use of harm OPSs throughout BC, heavy police presence in the vicinity of these sites people come around the corner reduction supplies and encouraging toward the site, see the police, and drug users to hold on to used can and does make people reluctant to use these life-saving services. turn and walk away. We also watched supplies until they can dispose of one woman leave the site in a state them safely. If we are to achieve One woman described the police of extreme distress because she saw the goal of minimizing harms, the presence around the OPS in her the police outside and was fearful types of police actions described community: “There is a safe injection that they were there for her. by participants, including actively site downtown and the cops are not obstructing the delivery, use, and allowed to arrest you on that site The negative impacts of heavy police proper disposal of harm reduction whatsoever…outside of there…the presence around OPSs and other equipment, cannot continue. These cops are still harassing people…they places where people access harm practices must be recognized as a just drive in the parking lot and harass reduction equipment and support clear threat to public health and to people (100).” An officer known to are compounded for the significant the health and safety of people who community members “likes to hang number of study participants who use drugs. out there,” she added. She told us have red zones imposed by either she has used the safe injection site— police or the courts. Red zones are designed to serve as a safe space geographic areas that people are and point of community support for prohibited from visiting by court or people who use drugs—only once. police order. People do not have to
90 “Harm Reduction Guidelines”, BC Centre for Disease Control (2018), online: http://www.bccdc.ca/health-professionals/clinical-resources/ harm-reduction/canadian-best-practices. 91 “The BC Public Health Opioid Overdose Emergency: March 2017 Update”, BC Centre for Disease Control (17 March 2017) at 14, online: http:// www.bccdc.ca/resource-gallery/Documents/Educational%20Materials/Epid/Other/Public%20Surveillance%20Report_2017_03_17.pdf. 92 Heather Mann et al, “Findings and Analysis for Overdose Prevention Society”, Data For Good (2018) at 12-13, online: https://vancouver.datafor- good.ca/wp-content/uploads/sites/4/2018/06/OPS-Report-Small.pdf.
PROJECT INCLUSION 47 “You’re avoiding them [the police] all the time, so it pushes you further into like—into hiding, basically, and you’re going to unsafe spaces or wherever, really.” – 313
have been convicted of a crime to One woman experiencing to reinstate an exemption for Insite, be subject to a red zone. If a harm homelessness described being North America’s first supervised reduction hub falls inside a person’s disrupted by police while using. injection site. Recognizing the red zone, they could be charged with circumstances of people who use a breach of a court order for being I…actually hadn’t had anything in drugs while entrenched in poverty, in the vicinity of these services.93 two days because I was sleeping. the Court affirmed that fear of police See Part 2.2 for a more complete So I woke up and I went to go can override everyday safety habits. discussion of the application of red get some—I need to get myself This can lead to needle-sharing, zones and their impact on health and unsick. I was so disgustingly sick, hurried injections in clandestine safety. like could barely move. And I was locations such as back alleys, and actually shooting up at that time the use of unsanitary injection One participant explained his ongoing and I had the rig and I had flagged equipment. All of this, the Court difficulty with accessing his local it, I was just about to push it in. acknowledged, can result in severe OPS because of how police enforce And it was like, ‘You are under red zones in his community, despite arrest’ and I looked over my describing a notably positive working shoulder and there’s two white relationship with his Probation Officer cops that came on to me. Two (PO). guys…just like tackled me with the rig in my arm. I was like, ‘I’ll I had to get special permission go in, I’ll go in— just like to get from my PO if I want to go to the myself better first,’ and they’re [local overdose prevention site like, ‘No.’ And so, I had my hand and harm reduction hub] there. on the rig, right. But then they—it So, between certain times Monday was already in my vein. And then through Friday…I had to carry that they bent it. And then pulled it piece of paper on me. So, if I did out. So it kind of turned into like get stopped while in my red zone a fish hook and ripped it out. And I had my papers saying this was it was disgusting. And I grabbed signed by my PO, saying it was it back and pulled the plunger out okay. But a lot of times that didn’t and drank it. And then they’re like matter. They arrested me, took me ‘You’re resisting arrest.’ – 313 in…then it would take me to get a hold of my PO for them to release That experience affects how she uses me out. Oh my God there were now: times when I went all the way back to jail, all the way down here to Keep it really hidden, definitely for [location of cells] and then they sure—like go somewhere where health and safety risks including would release me from [location there’s nobody around…you don’t infection, mismeasurement of of cells] to fucking nothing. – 165 want to do it in public, right. You’re avoiding them [the police] all the substances to be consumed, and Many communities do not have time, so it pushes you further into fatal overdose away from medical 94 an OPS at all, and several are only like—into hiding, basically, and aid. open limited hours each week. As you’re going to unsafe spaces or The relationship between policing a result, many people experiencing wherever, really. – 313 and harm reduction is a matter of life homelessness are still using illicit or death. It is therefore critical that substances in public space. This woman’s experience supports the evidence put before the Supreme police consider the circumstances of Court of Canada in its 2011 decision people who are using drugs and who
93 Marie-Eve Sylvestre et al, “Red Zones and other Spatial Conditions of Release Imposed on Marginalized People in Vancouver”, (2017), online: https://observatoireprofilages.files.wordpress.com/2017/10/vancouver-red-zones-report_2017-10-30.pdf. 94 Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 at para 10.
48 Pivot Legal Society do not have access to privacy before federal government has recognized • in some communities, the police reactively responding. that overdoses are medical are often the first responders at emergencies warranting unrestricted an overdose and do not always As one participant living in a access to emergency services and in intervene medically when they municipal police force jurisdiction May 2017, the Good Samaritan Drug arrive on scene; explained, police sometimes use their Overdose Act (GSDOA) became law.95 discretion in ways that build rapport • at times, police interfere with with people who use substances and The GSDOA has been characterized people trying to administer promote public health and safety: as a mechanism to “encourage and naloxone; and protect people who are witnessing • police are perceived to be using It was like 6 o’clock in the an overdose so they can seek help, overdose calls to monitor and morning…I just woke up basically and ultimately, save lives.” The investigate drug users. in the bush, and I had my sleeping law offers some legal protection bag and my dog with me and for people who find themselves One man described his experience all that…I woke up one morning at the scene of an overdose when with police attending an overdose and fixed my morning shot and emergency help arrives, including the incident at his building: the cops rolled up right as I was caller, the person who overdosed, My neighbour OD’d [overdosed] fighting to get it into me. And he and any other bystanders. However, about a year ago. She is now dead, came over and he’s like, ‘Stop.’ He these protections are not absolute. she actually had OD’d, not this was like, ‘Pull it out of your arm.’ Whereas the GSDOA provides time, but another time she OD’d. I Normally I would have just fired it immunity against charges of ran down the hallway, this was like anyway but for whatever reason I simple possession and breaches of three in the morning, I heard the stopped, and I have my dope out conditions where the underlying police kicking her door in and I ran and still I had about half a gram offense is simple possession, it does down the hallway once they got of powder sitting right there. And not protect against outstanding the door open, I said ‘You got it they rolled up and I said, ‘Listen, warrants or against charges and open, is she in there?’ and they are if you take that, I’m going to have breaches related to other offenses.96 to go do something fucked up to like, ‘Yes and she’s OD’d,’ so I ran get it because I’m going to be sick. and grabbed my Narcan kit and I Like I’m going to have to go steal ran down there. I tried to hand it to the officer and she almost like or rob or just do something to get The relationship my fix for the day, right?’ And he took a jump back and said, ‘I can’t understood that kind of, I guess, between policing and take that.’ And she’s like, ‘No, no, and just he said, ‘Okay, I’ll give you harm reduction is a no, no, you can’t administer that.’ 10 minutes to clear out of here, matter of life or death. I said ‘She is on opiate overdose. I we’re going to be back here again can see she is on opioid overdose. and whatever and don’t leave a She is not breathing. She needs mess, take your shit with you.’ So, this.’ And they are like, ‘We have to that was kind of cool actually, that Given that Project Inclusion wait for the ambulance.’ – 239 he didn’t take my dope or charge interviews began two months A respondent in another RCMP me. – 342 before the GSDOA became law jurisdiction also stated that, in and concluded five months after her experience, police actively This type of discretion is the bare it was enacted, it is too soon to prevent other people on scene minimum of what police can do determine the full impact of this from intervening in the event of to promote trust and rapport with legislative change. However, there is an overdose. “If cops are there, if people who use substances while evidence to suggest that the GSDOA anything, they’ll interfere (313),” concurrently protecting public health is misunderstood—both by police she explained, describing how she and safety. and individuals seeking protection and her friends now take it upon under the Act—or that police are themselves to carry and administer Police and Overdose Response deliberately applying it in a way that naloxone (also known by its brand undermines its intended public health In cases where a person does name Narcan), which reverse the purpose. overdose, especially outside of an effects of an opioid overdose. “We OPS or supervised consumption site There are three interrelated issues to don’t even call the ambulance where immediate medical help is on police attendance at overdoses that anymore, or cops, or anything like hand, it is imperative that people feel should be monitored: that…we’ll do the Narcan ourselves that they can call 911 to get help. The
95 SC 2017 c 4. 96 Melanie Webb, “Drug overdose act weakened by limited immunity from prosecution”, The Lawyer’s Daily (12 October 2017), online: https:// www.thelawyersdaily.ca/articles/4827/drug-overdose-act-weakened-by-limited-immunity-from-prosecution.
PROJECT INCLUSION 49 and help each other and bring each federally-sanctioned supervised uses drugs is living with an addiction other back.” consumption sites. Yet many policing and is therefore in need of support. agencies in BC appear to be working A person who deals drugs, on the They do this, she said, because police in misalignment with public health other hand, is a person who needs have “stood in the way and even agencies. One fundamental reason is to be criminally sanctioned. As is cuffed people trying to administer that, despite widespread recognition the case with how we conceptualize Narcan (313).” Asked why they of substance use as a public health what it means to be homeless in don’t call ambulances anymore, issue, the possession of illicit the popular imagination, the way she replied, “It takes a while to get substances remains criminalized. So we conceptualize people who use there. A couple of minutes, like does trafficking those substances, and deal drugs does not hold up usually you can just do it yourself despite the fact that for most users in the real-world, as the real-world right away. And…usually the cops there is no legal way to obtain them. experiences of study participants get there first…there’s cops [in the made clear. Several people who took area]…the cops will be there before This sets up a paradox for people part in this study sell, trade, or share the ambulance arrives…it’s…never who use drugs. A person can use small amounts of the drugs they use. helpful.” a substance safely and without Procuring drugs is a way of helping fear of arrest once they are inside out friends, of benefiting from With the introduction of the GSDOA, a supervised consumption facility, economies of scale, and of financing the government recognized that but it is impossible to secure one’s own substance use. police interference at the scene those substances and transport of an overdose, whether actual or them to the site without fear of In some cases, this informal economy perceived, can deter people from criminal sanctions. As described is exploited by police, resulting in seeking help. in participants’ stories earlier in the deliberate criminalization of this chapter, this situation is made the very people the public health Across the province, police need to even more precarious by the fact response to the opioid overdose embrace the spirit of the GSDOA that police appear to be lingering crisis is meant to protect. While so that fear of arrest no longer has outside of OPSs and monitoring their conducting research for this project, a chilling effect on calls to 911. This clientele. we were contacted by a service means treating overdoses as medical provider who let us know that several emergencies. In the event that police This contradiction is most obvious residents of the low-barrier shelter are the first emergency responders in relation to simple possession, but where he worked had been charged on scene, they should be intervening also points to the broader issue of with trafficking fentanyl. All of the in a medical capacity only (such as criminalizing supply while attempting residents identified as being addicted administering naloxone) and not to mitigate harms related to use. to fentanyl and were living in abject using the call as an opportunity to poverty in a homeless shelter. They investigate or interrogate individuals One woman who was chastised for had each been approached, over a who have called for help. asking if anyone had cocaine for sale period of months, by undercover inside the local OPS summed up the RCMP officers who asked them to In addition, police need to recognize disconnect. the experience and expertise of drug find them fentanyl. As a result of their users who medically intervene during I’m talked down to…at the needle own need to finance their substance overdoses. All police departments exchange down there. I said, use and/or willingness to help out should also be encouraged to what the fuck [are] you [service another drug user in need, these adopt policies of non-attendance providers]…doing here…[letting] people are now facing trafficking in the event that overdoses occur, people come in here and do charges including newly increased jail 97 intervening only at the explicit needles and I’m not allowed to ask time for fentanyl trafficking. request of Emergency Medical for something, I said what the fuck While conducting interviews, we Services (such as in the event of [is] this place open for, then? – 13 heard similar stories, including this violence or a fatality). In the popular conversation and one from another RCMP jurisdiction: public imagination about substance Prohibition and Harm Reduction: A The trafficking charge was, a girl use, our tendency to categorize Fundamental Conflict come up to me just like you, and people in binaries produces a false she said ‘can you help get some As a province, we have invested conceptual distinction between speed’…So I get the dope, I give in evidence-based programs that people who use drugs and people it to her, get the money, give it to approach substance use from a public who deal drugs. Even among people him, that’s it. If she had asked me health perspective, including the who believe that addiction is a to fix her bike, if she asked me to provision of harm reduction supplies, public health issue, conventional find her puppy, if she asked me grassroots OPSs, and supporting thinking goes that a person who
97 “BC Courts’ response to fentanyl”, Provincial Court of BC (15 August 2017), online: http://www.provincialcourt.bc.ca/enews/enews-15-08-2017.
50 Pivot Legal Society to paint her garage door I’d have factor for HIV and HCV infection,98 and which does not have negative done it for her and that’s what increases the risk of overdose upon consequences, intended or not, for she asked me to do and I did. Two release,99 and increases their risk of drug users and the community at weeks later they come up with a sustained homelessness.100 large. warrant and charged me with a trafficking. I fucking put up such a In some jurisdictions, police regularly Alcohol and Harm Reduction fuss all the way to the cop shop, confiscate illicit drugs and release Many of the ways in which policing I’m not a drug dealer…So I made a people without charge. On the undermines harm reduction flow big mistake about it and the cops surface, this appears to be a gentler from the legal status of those know I’m not a drug dealer and yet approach to drug law enforcement substances. However, in some I’m still charged with it because because people do not end up communities we visited, alcohol was there’s one indiscretion. – 208 facing criminal charges. The lack of documentation also means the most frequently used substance that official rates of drug-related among people who live in public enforcement can appear relatively space. low despite high levels of interaction Policing organizations Alcohol is a legal substance, but between police and people who use alcohol addiction is a serious medical and individual officers drugs. need to approach issue and alcohol withdrawal can interactions with people Along with putting people into a be life-threatening. In some cases, people whose alcohol is confiscated in possession of illicit desperate situation if they are in withdrawal, the confiscation of end up in withdrawal while living substances in a way that substances creates drug debts and outdoors. Alcohol withdrawal is a recognizes the chronic can increase danger and violence on medical condition that can have and relapsing nature of the streets. serious negative consequences addiction, and which when entered into without adequate I’ve gotten into debt, and I’ve supports, including medical does not have negative been beat up because police have intervention if necessary.101 When consequences, intended taken drugs that I had taken from police restrict consumption based or not, for drug users one person and was bringing to on the fact that it is occurring in and the community at another person. And I’ve even told public, they risk interfering with large. the cops, ‘You guys are going to measures people may be required to get me killed for this. And then take in order to stay well. The most it’s—I mean you’re not even going severe type of alcohol withdrawal, to do any paperwork, you’re going known as delirium tremens (DTs), is to throw it on the ground and a medical emergency. Symptoms Ultimately, criminalization and stomp it into dust and it’s going to for a person experiencing DTs harm reduction are incompatible get me killed.’ And they just laugh, include heart disturbances, seizures, approaches to addressing a complex they don’t care. I mean, I shouldn’t extreme agitation and confusion, issue. As long as the possession of say ‘they,’ because some of them and hallucinations—all of which are certain substances is illegal and there are good. – 175 dangerous in any context, and even are no legal avenues for securing more so when living in public space, the substances on which they are While the move toward not without supports.102 dependent, people who took part charging people with possession in this study will continue to face is positive, policing organizations The over-policing of people who unnecessary risks to their health as a and individual officers need to live in public space and use alcohol result of a toxic, unregulated supply, approach interactions with people is having devastating effects on and the threat of criminal sanctions. in possession of illicit substances in people’s well-being and their Criminalization then puts people at a way that recognizes the chronic relationships with police. One person risk of incarceration, which is a risk and relapsing nature of addiction, we interviewed told us that the
98 Canadian HIV/AIDS Legal Network, “HIV and Hepatitis C in Prisons”, (2008), online: http://librarypdf.catie.ca/PDF/P48/HIVandhepatitisCinpris- ons.pdf. 99 Fiona G. Kouyoumdjian et al, “Mortality over 12 years of follow-up in people admitted to provincial custody in Ontario: a retrospective cohort study” (2016) 4:2 CMAJ Open at 153, online: 10.9778/cmajo.20150098. 100 Stephen Gaetz & Bill O’Grady, “The Missing Link: Discharge Planning, Incarceration and Homelessness”, The John Howard Society of Ontario (2006), online: http://homelesshub.ca/sites/default/files/The_Missing_Link_-_Final_Report_June_2007.pdf. 101 The National Clinical Guideline Centre, “Alcohol Use Disorders: Diagnosis and Clinical Management of Alcohol-Related Physical Complica- tions”, The Royal College of Physicians (2010) at 15, online: https://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0047849/pdf/PubMedHealth_ PMH0047849.pdf. 102 The National Clinical Guideline Centre.
PROJECT INCLUSION 51 police frequently dump their liquor. because you dumped my shit…it’s are seemingly without meaningful “We want to cry when they do that a vicious cycle. – 102 oversight or management, that (108),” she said, particularly in cases is a departmental issue. In RCMP when the police are disposing of Given the level of alcohol jurisdictions the issue is bigger than the only bottle they have to stave dependence that an individual may any one detachment. Officers are off the debilitating effects of alcohol be experiencing, the confiscation of sometimes moved from community withdrawal.103 When we asked the alcohol may also lead to a situation to community, leading to a belief, interviewee if she felt the police where that person has no choice but justified or not, on the part of understood her circumstances, “I to resort to non-potable alcohol such participants in this study, that when doubt it,” she replied. as hand sanitizer or rubbing alcohol. an officer develops too adversarial a relationship with the local population Two of our focus groups included While it is illegal to drink in public, it or engages in misconduct, they participants in alcohol harm reduction is important to recognize that there are simply moved to another town, programs. Some belong to a drinker’s are harm reduction implications where the cycle begins again. when alcohol is seized from very co-op, wherein members pay a marginalized and dependent drinkers monthly deposit in exchange for a In a number of cases, people report who don’t have the option of drinking quantity of homebrewed alcohol. that they are often searched during inside a private home or licensed Participants reported that this frequent stops by police. They do not establishment. Some participants program had very positive impacts feel that they can say no. reported that even unopened alcohol on their lives. Others participated in is seized by police. Managed Alcohol Programs (MAPs), Interviewer: where participants receive a certain They search you? An Indigenous participant with a amount of safe alcohol at regular history of alcoholism going back to intervals. These programs have Interviewee: early childhood described a recent proven harm reduction benefits They ask me to empty my occurrence in his life. including increased access to pockets, if they can look in my housing, decreased non-beverage backpack. If you say no, you’re We had two bottles of unopened alcohol (NBA) use, reductions in obstructing justice. wine, we are waiting for hospital admissions, and reduced Interviewer: somebody…Yeah, haven’t cracked rates of police contacts.104 it. The cops just roll up and then Do they ever threaten you with that? they’re like ‘Oh, let me see that QUALITY OF LIFE POLICING AND wine.’ They just dumped both on TARGETING PEOPLE WHO LIVE IN Interviewee: us. I was like ‘What, it’s not even PUBLIC SPACE Oh, yes. Yes. And I think if you open.’ We’re not doing nothing. ask that question you find that’s We’re just waiting and they just A consistent theme among study a normal answer, or at least for a dumped the booze on us. – 102 participants who live in public space and rely on low-barrier services, like certain percentage of us. – 318 He explained that losing alcohol soup kitchens, is that every element Part of Pivot’s legal programming has serious effects on his life and of their lives in monitored. Meeting includes rights education. Our his relationships in the community. even their most basic needs such as organization produces wallet-sized People complain about panhandling, sleeping and eating is complicated by “know your rights” cards that include he told us. But the police “are the police presence. a written statement for police and are reason…we are doing the cycle all intended to be used during an arrest. over again,” he said, describing the In one RCMP jurisdiction, the majority When we arrived in one small town, tough hustle of asking for change of people who took part in this study we were excited to see that a local after police confiscate his alcohol: talked about a specific bicycle officer they felt was targeting them. The service provider was handing out the I try to be polite and courteous officer was even disrupting access card. That excitement faded when and stuff. And when people to food services, doing patrols in the we learned that the cards are not complain about [panhandling], soup kitchen (294). changing police practice in this RCMP the police—the reason why—like jurisdiction. you know, they dumped our shit. While specific officers came Interviewee: And now we’ve got to go back out up repeatedly as the source of Like I had that little paper thing, there, get caught stealing, or you harassment in some communities, But… know—why am I doing this? Oh, the issue is larger than any one “bad apple.” If problem officers
103 The National Clinical Guideline Centre. 104 “The Canadian Managed Alcohol Program Study (CMAPS)”, Canadian Institute for Substance Use Research, University of Victoria, online: https://www.uvic.ca/research/centres/cisur/projects/map/index.php.
52 Pivot Legal Society Interviewer: Your conditions paper?
Interviewee: No.
Interviewer: The statement for police?
Interviewee: Yeah…The [service provider] is giving them out. Nope, they took that too. – 102
In January 2017, Ontario released new rules restricting the practice of arbitrary police street checks, known as carding, in part due to the disproportionate negative impact on the Black community and other communities of colour in that province.105 “Know your rights” card
Among participants in this study, the there is no winning, there is no place It’s ridiculous. They were on us use of arbitrary stops was perceived for them to go.” this morning at 6 o’clock this as less formalized than “carding” morning. They were on us in camp operations in Ontario but no less Interviewer: this morning. Dead asleep, not damaging. Many participants in And have you ever been able to bugging anybody and they come smaller communities explained that use a tent or anything? and harassed us and told me that there was no need for the police it was because somebody was Interviewee: to ask them for ID during a stop causing a disturbance. Everybody No. because all of the local officers in the whole camp is asleep. The already knew their names, offering Interviewer: only one causing a disturbance them no privacy. For the people who No? Is there anywhere you feel was that cop. They say they don’t took part in this study, the reality of you could set up a tent if you want have protocol…they don’t have living in public space means that the to? to make a quota but you watch challenge of needing to find places to it in this town and you can tell sleep, store belongings, and simply Interviewee: that’s not true because come spend time is compounded by having Not here, no. the end of the month, they’re to constantly avoid police. writing everybody up for nothing, Interviewer: absolutely nothing. – 135 Several participants described the No, they would just…? effects of having nowhere to go that Participants described the process as is free from police engagement. Interviewee: an unending chase that completely “There’s no place that I can sleep Destroy it. wears them down without resulting during the day (74),” one person in any real change in their lives or in Interviewer: said. “Cops wake you up, people call the community at large. Yeah. So, nobody here sleeps in a the cops when they see somebody tent? sleeping. It’s just crazy.” It’s horrible, I mean people are off on a trail, where you would never Interviewee: Another participant explained the even see them, they are certainly No. – 395 police presence in her community not bothering anybody, why are this way: “You see them riding up and In some communities with a you using all those resources for down by the boulevards, harassing larger, more organized homeless police to go through the bush, the same people, ‘Take down your population, policing of people living search for them, find them, tarp (252),’” she said. “It seems like in public space is recognized as being ‘Okay you are two hours past the 106 more systematized. deadline, your tent should be
105 Akwasi Owusu-Bempah, “Ontario’s ‘ban’ on carding isn’t really a ban at all”, CBC News (18 January 2017), online: http://www.cbc.ca/news/opin- ion/ontario-carding-ban-1.3939558. 106 Many municipalities have bylaws that allow for camping during particular hours in some places.
PROJECT INCLUSION 53 taken down.’ Really? I don’t get it, it’s like a cat and mouse game and it doesn’t seem right. – 252
One participant explained how constant displacement feels as a person who is experiencing homelessness:
Like you don’t belong here, like you’re a second-class citizen that there’s no room for you even in a spot where there’s bugs and birds and thorns and it smells bad and nobody wants to come near the spot except I’m not allowed to be there. You know, like there’s a parking lot and you could park your car there and it could leak oil and antifreeze, drunk people can come there and piss or throw up, but I’m such a piece of garbage I am not allowed to sit there and that’s how it feels. – 208
The BC Supreme Court has recognized that the constant movement and displacement of people who are homeless exacerbates their already vulnerable positions and has a serious negative effect on their psychological and/or physical integrity.107
The Court noted that routine displacement also undermines the ability of service providers to locate and provide aid to their clients who are homeless. In light of these findings, the Court ruled that bylaws prohibiting the overnight camping of homeless people in public spaces are allowed to spend time anywhere, everything. Every time they see unconstitutional, while concluding most participants in this study me, ripping all my shit apart. Back that there is a legitimate need for described the regularity with which then I had a little bit more than a people to shelter and rest during the all of their belongings were taken backpack. I had a suitcase and a day. and destroyed by police and bylaw duffle bag and shit. I had some officers. stuff and they would go through Despite this, police continue to it all the time and take my meds… displace people on a daily, or even Routine confiscations contribute to You get everything back and as hourly, basis in municipalities across the frustration and sheer exhaustion soon as you do that, they are the province, with participants that people face when they do not taking everything again and you consistently confirming the harms have access to a home or consistent are back to square one and then identified in the aforementioned space in which they and their you got to fight to get everything case. belongings are welcome. back so it is like a losing battle. I was constantly angry and no My space was limited where I Seizure of Belongings wonder I had a fucking attitude could go so I always interacted against the cops, I wonder why Along with the challenge of being with them. It was a gong show. awoken, moved along, and not They are always searching me and
107 Abbotsford (City) v. Shantz, 2015 BCSC 1909 at paras 209 and 276.
54 Pivot Legal Society that is. They didn’t treat me very disposing of all their belongings, Disrupting Income Generation nicely. – 472 they began carrying medication People engage in a variety of with them at all times. She told us income generating activities to get One couple we met in an RCMP that they now carry their weekend jurisdiction described the devastating by, sometimes without access to methadone prescription with them at even meager rates of government loss of their camp and all of their all times because police officers have belongings earlier that week. The assistance. Participants reported that previously confiscated it. When the they are often heavily policed while woman, who is HIV-positive and prescription is taken from them, they identifies as having a significant attempting to generate income, go into withdrawal. Asked what she including activities such as collecting intellectual disability, told the story does in that situation, she replied, “I from her perspective. recyclables. “Every time you open will sit at emergency and hopefully your eyes you got to worry about the they’ll help you (343).” The next day we moved it up police, right (28),” one person told us there, and then we weren’t on Other participants in this study of his experiences collecting bottles his land anymore, and then [the raised the loss of prescription for cash. property owner] seen our tent go medication due to police searches Panhandlers also report being heavily up and he shook his head and he and confiscation as well. got the cops again that day. The policed in some communities: cops came again that day and said They went through everything all I’ve probably got like 300 or no, you can’t be here, you can’t be the time. Like they had no right 400 fines that I will never pay. anywhere around here, you guys doing that either but what are you Basically, I’m just waiting for the have to go to the shelter if you going to do? Me fight the law? warrant to go out and fucking put don’t have a place to live. And he They took all my meds all the me in jail for these unpaid fines, said you got to get out of here, so time…Then I would have to wait right? I probably have $4,000 or we started packing our stuff up a month because I wouldn’t get it $5,000 dollars in fines just for slowly and bringing it up the hill. replaced like I just got them taken panhandling…I haven’t even made It’s hard to move all that stuff, your by the cops. I come here and try that much in panhandling. – 58 house. to get a…like refill and they tell me I have to wait until my prescription The effects of police presence And so, we were getting half of it ran out. – 472 and harassment can be especially up there and then we came back, profound for people who make we were bringing our stuff to our money by engaging in sex work, even friends, and we came back, our though selling sex is not against the tent was all slashed up and stuff law. was in the river, just thrown there. “I probably have $4,000 We could see it, it was not gone or $5,000 dollars in fines Interviewer: but all soaking wet. just for panhandling…I Well, do the cops ever stop you from working in this area? So, we had some of our stuff haven’t even made that anyway, so we went even further much in panhandling.” Interviewee: down the river, hoping that they – 58 Yeah, they try. couldn’t see us, right, and that our cat would. We didn’t have a tent or Interviewer: anything, we just made something They try, what do they do? with a tarp and then they came People who took part in this study Interviewee: again that day. We were out are living with a host of medical getting our medicine and we had Well, they come and they tell you conditions including addiction, to get the fuck out or they say we groceries and we saw it all over chronic pain, mental health issues, the riverbank. They took whatever know what you are doing, here HIV, HCV, heart disease, and is a warning, we won’t be so nice else we had and got rid of it in the cancer. The confiscation or loss of garbage or whatever. They threw next time, or they just straight out prescription medication has serious grab you, put you in the back of out our cat food too…they threw health and safety implications. It may it out, he had to get food from the car and then basically they’ve seem obvious to point out that police been watching you or they have somewhere, and they got rid of all must be cognizant of the effect that that. – 343 someone who ratted out on you confiscations have on people who are or they just know, because they both ill and without access to storage Her partner explained that on know what you are doing, it’s a facilities or a home, but as many of past occasions, they had kept small town, right, it is what it is. – our participants affirmed, it bears prescriptions at their camp, but after 416 repeating. they were lost in the process of police
PROJECT INCLUSION 55 When asked if she continues to work rights to security of the person care if it’s day or night—you will even when she is harassed by police, under s. 7 of the Charter. The get ticketed. I’ve seen them walk she simply said “I have to.” Court recognized that the ability to past a guy that was just napping communicate is an essential tool for in the park, obviously he had a We also asked whether police sex workers that can decrease risks to house and parked his car there and presence affects her safety because their health and safety.109 was napping on his lunch break, she has to get into cars more quickly; and hassle and chase away the she said “Always.” Communication allows sex workers homeless that are sitting there. I to negotiate wages and terms get chased away, I get fined, I get In a larger RCMP jurisdiction with a (including the use of condoms or harassed. – 332 (focus group) well-known stroll, a woman explained safe houses) and screen clients who how police use their presence to might be intoxicated or prone to Another participant from the disperse women who are working violence. Police across the province same community explained that by scaring away their clients, who must honour the spirit of that holding onto possessions is almost are criminalized under Canada’s decision and refrain from impeding impossible because of bylaw 108 prostitution laws. the tools that sex workers rely on for enforcement activity: their own health and safety. Two nights ago, this is where all Sometimes they’ll just come the working girls go…the cops, Bylaw Officers and Private Security up, and if you are like, just over they’re just parked right here—like there, they’ll grab your shit and right where we are in this street. Participants noted that displacement, once it’s in the van, you’re done. And they just put their cherries disruption of income generation, Yeah, if you’re getting coffee [red emergency lights] on—like and seizure of belongings by police is or going to the bathroom or not pulling anybody over, but just amplified by local bylaw officers and anything it doesn’t matter… leave their cherries on just to kind private security. Anything and everything, like of disperse anything. – 313 bikes, work clothes, like my ex For years I slept outside one actually works at a day job, he is a This does not mean that women of the churches in town and a construction guy and they threw stop working. Instead, they are lot of other people that were away his boots, and his helmet dispersed to more isolated and less homeless would come sleep and everything. I couldn’t believe familiar areas. One woman explained outside there alongside me. They it. – 416 how police harassment forces her put up signs saying no sleeping to go back out to work in a more outside; bylaw [officers] would A third participant in the same desperate state. “They’ve taken my come and go through people’s municipality explained that along purse and dug through it you know, tents. They would destroy the with tickets, people are also forced to taking my rigs and…they just take it. tents, destroy the property. They pay to get their belongings returned No charges. They take my drugs, my could confiscate everything. They if they are seized by bylaw officers. money (395),” she explains. “It’s hard could chase people away. RCMP, “If we want to go somewhere and because I’ve worked all day for that the same as the bylaw, they keep warm, they are on us like flies… and I worked the streets.” would do the same thing, they and they’ll confiscate your shit. Each would destroy people’s property. belonging or thing is $40 [to get In the end, this approach is at odds They would harass anybody for back] (100).”110 with the goals of keeping sex workers whatever reason. – 332 (focus safe by ensuring they can take group) This same participant described precautions while working and reach being ticketed under the out to police if they need help or to In some communities, bylaw officers municipality’s anti-paraphernalia report suspicious activity. target and ticket people who live in bylaw less than a year before: public space on a regular basis: In 2013, the Supreme Court of One time in the park, get this: Canada found that laws prohibiting If I go into [Name] Park to use bylaw and the cops, they go sex workers from communicating the outhouse after 11 and I get around together on their bikes with clients in public are seen by bylaw, most of them and I am in the bathroom unconstitutional because they have no problem writing a ticket. changing and I have two black unjustifiably violate sex workers’ If you’re sleeping—they don’t sharps containers and she makes
108 For a full analysis of Canada’s prostitution laws and the impacts on sex workers, see Brenda Belak & Darcie Bennett, “Evaluating Canada’s Sex Work Laws: The Case For Repeal”, Pivot Legal Society (2016), online: http://www.pivotlegal.org/evaluating_canada_s_sex_work_laws_the_case_ for_repeal. 109 Canada (Attorney General) v. Bedford, 2013 SCC 72 at paras 158-159. 110 Authors were able to verify that local bylaws allow for this charge to be levied. We are not, however, able to cite to the specific bylaw in question in order to protect participant confidentiality.
56 Pivot Legal Society me open the fucking sharps security guards are employed by box and charges me for fucking private companies and contracted paraphernalia…It was in my purse by private citizens, corporations, and and I was literally changing. I public entities to provide security wasn’t shooting up. – 100 services on both public and private property, as well as on property that A fourth participant in the same most people experience as public, like community explained that despite shopping malls and libraries. provisions for getting seized items back, financial barriers can make Private security guards are not police reclamation impossible: officers, but as evidenced by the stories above, in many municipalities “They come to the park I have got very poor success in across BC, they often engage in work actually getting my stuff back. And that closely resembles that of public and say like you’re they want money before they— not allowed to have police. They wear uniforms and drive they want money first before they marked cars, which provide an air of a blanket down and even look into the matter…Yeah, presumed authority not afforded to sitting in the park and like I paid $40 and I didn’t get any other citizens. we were just having of my stuff back. There was no recourse for that. – 208 Some guards seem to restrict their lunch…he said, well, activities to private property. In other look at you. Look at the In other communities, people did not communities, it seems that private way you look…They’ll talk about fines or fees when dealing security guards are also operating literally follow you with bylaw officers. Instead, they on public sidewalks, greenways, and simply never see their belongings parks: around.” – 262a again. They come to the park and say Not very nice to the homeless. like you’re not allowed to have a They take their stuff and throw blanket down and sitting in the it in the garbage and everything park and we were just having else. And it’s like, people work lunch…he said, ‘well, look at you. hard to get the shit that they have Look at the way you look’…They’ll and it’s like all that they have. To literally follow you around. – 262a have someone take it away, it’s not right…They are supposed to In some cases, private security store it, but they don’t. They wreck guards are interrupting legal it. They’ll wreck it right in front of income-generating activity. One you. – 397 woman explained that most of her interactions with private security In some communities, the activities happen when she is trying to of police officers and bylaw officers find clothes or earn money by are supplemented by private security collecting items from recycling bins officers. and dumpsters. “Usually in a bin somewhere…they will find me and [Local security company] fucking tell me I can’t be there, I got to get waking me up when I’m sleeping… out,” she said. “Anywhere…you are anywhere, all over the town… settling in for a few minutes, they wake up and then if you don’t get want you out of there (439).” up and move they call the cops… make you go somewhere else, and then when you get there and RACISM get comfy, they make you move People who took part in this study again. – 396 were selected mainly on the basis of experiences living in public space and In BC, security businesses and the with substance use. However, 38% guards they employ are governed of participants who engaged in one- 111 by the Security Service Act (SSA) on-one interviews—also identified as and regulated through the Provincial Indigenous. Registrar of Security Services. Private
111 Security Services Act, SBC 2007, c. 30.
PROJECT INCLUSION 57 Many participants saw or experienced deserved. How many of us work racism either by police departments on or near reserves and are getting as whole, or by individual officers in fed up with the race card being their communities. used every time someone gets caught breaking the law? The CC [RCMP officer] was transferred [Criminal Code] is there to protect six months after he got there for the criminals and there’s a growing harassing the citizens, mostly wave of hard working people who Natives. Since he is targeting are sick of being victims of crime race, it’s most of us Natives that without real justice.112 have the worst problem with him. And I think he just has a problem These incidents are more than with Natives…And the thing is, examples of “a few bad apples.” he never even pulls out his book Individual actions are embedded when he does it. He is not writing within a larger organizational culture shit down. – 318 where racism has been allowed to persist. RCMP Commissioner Bob Individual actions are One non-Indigenous participant Paulson, speaking at an Assembly embedded within a from the same community, who of First Nations Meeting in 2016, is marginalized and uses drugs, larger organizational recognized that anti-Indigenous explained that despite his own racism is a problem within his culture where racism criminalization, he perceives a organization. has been allowed to difference in how he is treated by the persist. same RCMP officer: I understand that there are racists in my police force. I don’t I am not First Nations myself. But, want them to be in my police well…I do see that I get treated force. I would encourage you all, differently, my privilege. Yes, I do though, to have confidence in have white privilege. Even me… the processes that exist, up to just from my take of things, it and including calling me, if you seems to me that he treats Native are having a problem with a racist people a little differently than he in your jurisdiction, or any other treats white people. – 239 problem.113
The same week we were reviewing Despite Paulson’s formal this interview data, the Aboriginal acknowledgement that individual Peoples Television Network (APTN) police officers can be racist and his reported on racist comments on invitation to bring concerns forward, a private Facebook group used by participants in this study felt that police officers across Canada. police are always treated as more credible than low-income Indigenous One post by an RCMP officer claiming people. to police a First Nations community on the Prairies responded to the One woman described how police acquittal of Gerald Stanley in the racism plays out against people like killing of 22-year-old Colten Boushie her, Indigenous people experiencing in Saskatchewan: homelessness in her community:
This should never have been There are some cops out there allowed to be about race…crimes [who are] really racist. There are were committed and a jury found some of them that just do not like the man not guilty in protecting street people. They treat them his home and family. Too bad mean and nasty, say some nasty the kid died but he got what he
112 Kathleen Martens & Trina Roache, “RCMP Facebook group claims Colten Boushie ‘got what he deserved’”, APTN News (15 February 2018), online: http://aptnnews.ca/2018/02/15/rcmp- facebook-group-claims-colten-boushie-got-deserved/. 113 “Racism within RCMP stirs debate over bad apples or systemic problems”, CBC Radio (5 January 2016), online: http://www.cbc.ca/radio/thecurrent/the-current-for-janu- ary-5-2016-1.3389695/racism-within-rcmp-stirs-debate-over-bad-apples-or-systemic-prob- lems-1.3389736.
58 Pivot Legal Society stuff to them. And they say that of being moved along, and of thrown in the drunk tank a lot we try to resist arrest, which we personal items being seized. In a few here? don’t, where they rough us up a communities, an additional issue was little bit more. And then when it top of mind among participants: the Interviewee: Yes. comes to court, they have more frequency with which Indigenous Interviewer: power than we do. – 71 people are taken to the “drunk tank” Yeah? Do you mind me asking is it and their treatment once inside city the mainly Indigenous people who Another participant also expressed cells.114 the view that some officers may get put in the drunk tank or is it not even understand the biases and “This has got to stop…especially for that anybody who is…? stereotypes that are shaping their First Nations…It’s been happening Interviewee: interactions with Indigenous people. for years and I’ve seen it all (170),” First Nations. one participant told us of how police I think they target mostly the treat Indigenous people in the drunk Interviewer: Native because if it was a white tank. He expressed understanding First Nations people? person, they wouldn’t stop them for why police may be motivated to the way they do with us…They take a person who is intoxicated in a Interviewee: need to take classes on racism public space to the drunk tank, but Mm hmm [yes]. – 108 because they think they are being he takes issue with what police do to nice but they are racist. – 96 people in the drunk tank once they’re She explained the severity of the there. “They treat them like we’re situation in her town and her recent When we asked one participant fucking animals,” he said. “We’re experience spending 11 days in city whether there were any signs that human beings. Just because we have cells, during which time she was things were changing between the a different colour doesn’t mean we’re denied medical assistance: local Indigenous community and the fucking dogs…This has got to stop.” RCMP, she responded with a story: Interviewee: In law, a state of intoxication occurs Every other day there was Nope…About three months ago when a person is “stupefied from the somebody from town here that an old guy, he was brown just consumption of alcohol or drugs to was drunk and got thrown in. like us, [police] pepper sprayed such a marked degree that a person him and they whipped out their Interviewer: is a danger to himself or others or is batons, lot of people got that on So, they just sort of patrol around causing a disturbance.”115 The police recording. Like, they can’t do that and if they see people, they think can arrest a person without charge if to people. – 170 are drunk, they bring them in? they are intoxicated in public.116 This In order for our police forces to phenomenon was most prevalent in, Interviewee: uphold their responsibilities under but not exclusive to, the communities Mm hmm [yes]. the Charter and human rights we visited in the northern region, law, and before Canada can even where nearly all the participants in Interviewer: begin to uphold is commitment to this study identified as Indigenous. Do you, did you get to see a reconciliation, that has to change. Some people in these communities, doctor when they are in there, do like this Indigenous woman, talked you know? CITY CELLS AND THE DRUNK TANK matter-of-factly about the frequency with which they, their friends, and Interviewee: Acts of overt racism by law family members were taken into cells: No. Even if you are on meds. Like enforcement are often treated as for example, I have high blood isolated, attitudinal issues. However, Interviewer: pressure and I am supposed to even with our limited sample size, So what happens if people are take my pills every day. And even if some clear systemic trends related to sleeping inside the sort of city I have them on me, they won’t. the treatment of Indigenous people limit, not out in the bush? emerged over the course of this Interviewer: study. Interviewee: Okay, that’s really so—RCMP picks Get thrown in a drunk tank. you up? In every community we visited, participants told stories of harm Interviewer: Interviewee: reduction activities being disrupted, Just for sleeping? Do people get Mm hmm [yes]…
114 “Cells” refers to a jail cell in a police detachment. The cell may be a designated sobering cell, or a regular jail cell. The RCMP have an internal and national cell policy, and each municipal police department has an internal cell policy regarding duration, medical care and release. 115 Besse v. Thom (1979) D.L.R. (3d) 657 (BC Co. Crt). 116 See Criminal Code s. 175(1)(a)(ii), Liquor Control and Licensing Act RSBC 1996 c. 267 s. 74(1)(2), or Offence Act RSBC 1996 c. 338 s. 91(1).
PROJECT INCLUSION 59 Interviewer: Interviewee: So, when you were in cells for Yeah, they wrote it in the those 11 days, you didn’t get your newspaper…and I was like, oh, pills? they shouldn’t have even put my name in there. Interviewee: No. – 108 Interviewer: And they just wrote that they’d Participants told us that there were picked you up 200 and whatever few safe spaces for them to go times and put you in the drunk where they could be free of police tank? encounters. Even when they travelled outside of town to sleep in the Interviewee: bush, the police would arrive at their Yeah, I know, I know I’m an encampment to take them to the alcoholic and got no place to stay. drunk tank. – 12
“He dropped it onto One man who, like many project Another woman explained that drunk participants, is homeless and lives tanks are largely an issue for people the floor and crushed with alcoholism, shared with us his struggling with alcoholism and that it with his boot and experiences with police. He told us it can be dangerous both because of they were shoving chalk of instances of trying to sleep in his the risk of withdrawal and because down my throat until I tent in the bush, only to have police people aren’t receiving care for other puked and it still never “open it right up and they’re like, health conditions while there. okay, you’re coming with us (12),” as came up. And then he described it. They arrived at his They do that to mostly yeah—that was a pretty tent, opened it, and took him directly alcoholics…And when they see good beating.” – 90 to the drunk tank. While detained them, they take their booze and in city cells, the police didn’t let him they dump it, and then they just exercise, “didn’t let me out for a have a…bad attitude towards smoke, they let me shower once.” He them. And then if they don’t listen, stayed in city cells for 10 days. that’s when they [the RCMP] start roughing them up…and The experience of being held in city then some of these people [living cells while detoxing from alcohol with alcoholism], they’re just was particularly harrowing. “I got so—they get so sick [from alcohol hallucinations (12),” he said. When withdrawal]. At times, they get asked if he was given anything to help seizures. They don’t understand him, he replied, “No…I know they that, them RCMP… don’t understand what we’re going through, right, because they’re not My friend, her boyfriend. They alcoholics themselves.” threw him in the drunk tank…and he needed his medication. Then He went on to describe the frequency they found him dead the next with which he is taken into the drunk morning. They didn’t do nothing; tank and the public shaming he ‘It’s just another Native, they’re received in the community: just drunk.’ When they say they need medication, they should do Interviewer: something about that. That just How many times have you had to happened, not even a year ago or spend the night in the drunk tank? last year, this time of year I think… he had real bad seizures. I guess Interviewee: I actually made a he had a massive stroke too when record in the newspaper: 286 he had his seizure. So, he passed times. away of that… Interviewer: They don’t check on people Okay can you explain “in the enough—especially when people newspaper” to me? have alcoholic seizures and stuff like that, they can—one of my
60 Pivot Legal Society friends already passed away from The troubling responses of police to us out like 7:30 in the morning. She that. They should be charged matters of addiction and substance had no shoes, no jacket, anything for things like that if they don’t use are paralleled by a similar (96),” she remembers. “I had some check on…because they already disregard for the needs of people in clothes in my stuff. I gave her a pair know that they get seizures and moments of crisis and distress. of my clothes…I’m always packing everything…They should have a a pack because you never know if doctor or something there at the One woman described the the shelters are too full or if I have RCMP office 24/7. – 40 circumstances of a recent detention, nowhere to stay.” ostensibly because police believed One woman told a story about she was suicidal. This story is similar to another story being in withdrawal from opiates we were told by a woman who had while in city cells. She asked to go Interviewee: woken up, in the drunk tank, in her to the hospital, but the guard only [Service provider] called the cops underwear. She told us: threatened her with violence. “One on me once because I was talking guard says to me, ‘You fucking bitch, crazy and she just cared about I woke up with my clothes off in you better clean up that mess or I’m me, because she was worried [small nearby town]…And I came going to put some girls up to beat the about me because I was like really to, and my clothes, I just had my shit out of you.’ I was dope sick, I was drunk…The cop was real rude and shirt on and my underwear. So, I puking. I had my mattress right by the I was like I’m going to just sit here try not to end up in the city cells toilet (289a),” she remembers. “I said, and wait till they close and then here now because I don’t know if ‘I need a hospital.’ He [the guard] I’m gonna walk to [the shelter] but that would happen [again] down said, ‘You don’t need no hospital, I’m I ended up saying it out loud. I’m here. – 96 going to put a couple of girls to beat just going to take off when they These stories were not exceptional the shit out of you if you don’t shut go and they arrested me. And in the lives of participants from some the fuck up.’” they had my arms up like this and he kept pulling my arms up and communities. They were daily or It is important to note that being hurting me and they only held me weekly occurrences. Some of the released from cells after a period for four hours till I sobered up and stories we heard were happening in of withdrawal can leave people at they were asking me why I was real time while we were in town. elevated risk of overdose.117 Another talking about killing myself, hoping In one community, an Indigenous participant spoke to us about an to die and stuff…They just called participant arrived for his interview experience he had in cells after he because I was like, suicidal. They with a big swollen bump and a big cut swallowed a small amount of an illicit said I was. on his face. He explained that he had substance he was carrying. Interviewer: sustained the injuries the evening I swallowed a little bit of drugs in But then the police didn’t take you before, when the police took him to cells and they gave me a beating to the hospital, they took you to the drunk tank. He said there was and the sergeant came down cells? blood on the floor when he woke there they had me pinned down up that morning. He was released there, punching me in the gut, Interviewee: at 8 am, about two hours before trying to get me to, to get sick…So Yeah. And the second time they his interview started. “Yesterday, I I couldn’t—I wouldn’t get sick and took me to cells, I wasn’t even was trying to stop a fight, and then I said look, man it’s just a couple bothering, and I don’t even know somebody called the cops (102),” he joints. I just didn’t want the charge. how I got to town. I was just real told us, describing what happened. And he goes, you know, well puke intoxicated and they are real rough After one of the people in the fight it up. And I said, I can’t puke it up. with me then too…And they kept biked away, he had a drink with his So they hit me more until they me in. It was, yeah, it was the mother in a public space. “Then knocked me out. And then I woke same cop…So, I try not to get in the cops just swarmed us,” he said. up and the sergeant was holding trouble anymore because I don’t He said they made the assumption a piece of chalk like a chunk of want that same cop to bother me. that he had been violent: “They just chalk that you write on a board. – 96 assume stuff like that. And then I was And he dropped it onto the floor like, ‘I wasn’t doing nothing. I’m just She explained that she did not see and crushed it with his boot and going to the shelter.’ And I was just health care staff while she was in they were shoving chalk down my walking towards the shelter, they’re cells. She described helping out throat until I puked and it still never like, ‘Quit resisting.’” From there, he another woman who was released came up. And then yeah—that was said the cops threw him down, put without proper clothing. “One girl a pretty good beating. – 90 him into the police car, arrested him, was screaming her head off…They let took him to the police station, and
117 Fiona G. Kouyoumdjian et al, “Mortality over 12 years of follow-up in people admitted to provincial custody in Ontario: a retrospective cohort study” (2016) 4:2 CMAJ Open at 153, online: 10.9778/cmajo.20150098.
PROJECT INCLUSION 61 “One of the officers, I don’t know, I can’t remember everything, how everything went down, but had somehow cut me by slamming me…palm in the ground or something, he cut me, and another officer started saying, ‘Oh, watch out for that, he is a fag, you know you’ll get AIDS from him,’ and words to that effect.” – 239
then carried him into the drunk tank. issue. They interviewed Indigenous communities with almost no “They dragged me into the drunk women and girls, as well as service public transportation), while white tank and then they slammed my providers, who reported that the girls in the same situation are likely head on the ground, put their knees police appeared to target Indigenous to be driven home by the police.120 on my neck.” people for public intoxication arrests and even abused their discretion We did not talk to youth as part While there, he told us the police did by detaining people who were not of this project and therefore, we not allow him to wear more than one intoxicated.118 likely missed this important area layer of clothing to stay warm. When for inquiry. Human Rights Watch he asked them if he could wear his Participants in the Human Rights recommended that BC expand non- own sweater instead of the t-shirt Watch study raised a number of incarceration options for publicly he had on, they denied his request. issues that directly mirror what we intoxicated individuals, including When we asked if he saw a health heard in the course of research for sobering centres where medical professional about his injuries, he Project Inclusion, such as being held personnel can provide appropriate answered no and described how he for extended periods without food, care.121 A sobering unit is a short-term feels when interacting with police: being kept in cold temperatures facility where intoxicated people are “They don’t even care. If I like— if I without blankets, and being cared for until they become sober, died in there, they wouldn’t even released with inadequate clothing, typically within 4-24 hours. This is care. They would just like— oh, so— in grave danger of hypothermia and a recommendation that has been you know, just assume—just assume frostbite.119 heard before in BC, including in the because my history, because of my recommendations of the Davies alcoholism, they’re just going to— One victim services worker told Commission Inquiry into the death they’d just let me die. They won’t care Human Rights Watch that this issue of Frank Paul in Vancouver122 and (102).” disproportionately affects young multiple BC Coroner Inquests.123 Indigenous girls: There are six sobering units in BC: Concerns about the overuse of Vancouver, Surrey, Victoria, Duncan, Police routinely incarcerate drunk tanks and the treatment Nanaimo, and Port Alberni.124 In the Indigenous girls for intoxication of Indigenous people in city cells remainder of the province, the police if they are found to have have been documented by other may bring an intoxicated person to consumed alcohol and are in researchers. In 2012, Human Rights a jail cell or a hospital emergency need of transportation home (a Watch visited 10 communities in unit.125 Expanding non-incarceration particular challenge in northern northern BC to investigate this options for publicly intoxicated
118 Meghan Rhoad, “Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada”, Human Rights Watch (13 February 2013), online: https://www.hrw.org/report/2013/02/13/those-who-take-us-away/abu- sive-policing-and-failures-protection-indigenous-women. 119 Rhoad. 120 Rhoad. 121 Rhoad. 122 “Alone and Cold: Davies Commission – Inquiry into the Death of Paul Frank”, Davies Commission (12 February 2009), online: https://iiobc.ca/ wp-content/uploads/2016/03/davies_commission_report.pdf. 123 See for example BC Coroner files #2007-159-0012, 2008-0228-0303, 2008-0217-0158. 124 Vancouver (Vancouver Detox), Surrey (Quibble Creek Sober and Assessment Centre), Victoria (Island Health Withdrawal Management Services), Duncan (Canadian Mental Health Association Sober Assessment Centre), Nanaimo (Island Crisis Care Society Crescent House), Port Alberni (Alberni Valley Sobering Centre). 125 “Alone and Cold: Davies Commission – Inquiry into the Death of Paul Frank” (2009) at 176.
62 Pivot Legal Society individuals should be addressed Interviewer: Police Violence immediately in communities across And different RCMP officers? The prevalence of police violence BC. Interviewee: that participants described to us was extremely concerning. Use of force ABUSES OF AUTHORITY AND Yes, I don’t know how they can get away with that. – 395 appears to be targeted along racial EXPERIENCES OF VIOLENCE and other lines of marginalization, Beyond day-to-day harassment HIV/AIDS related stigma was raised including class, disability (including and problematic treatment in cells, by another person living in an RCMP addiction), and social condition. people who participated in this study jurisdiction, in a different region of Several participants in this study also told specific stories of verbal the province. described routine and repeated abuse, humiliation, and violence by episodes of violence being carried police. One of the officers, I don’t know, out by police in their communities. I can’t remember everything, One woman shared a story from the Humiliation how everything went down, but had somehow cut me by evening before we spoke with her. We heard several stories of slamming me…palm in the ground humiliation at the hands of police, or something, he cut me, and We had a young man show up but the story of one Indigenous another officer started saying, ‘Oh, in camp last night that was so woman’s regular humiliation during watch out for that, he is a fag, you beaten. I’ve known this kid his interactions with the RCMP had a know you’ll get AIDS from him,’ whole life. I used to babysit him profound impact on us. and words to that effect. – 239 when he was a kid. He was so badly beaten up. I didn’t even Interviewee: Humiliation can also take a more recognize him until he started to Well, they just run me in and the physical form, as one participant in talk to me…He was walking home next thing is—I don’t like this— a jurisdiction policed by a municipal from the bar and he was cutting When they run me in, they say I’m force described. through the park and they [the HIV positive over the radio and it police] come from behind him, goes everywhere and everybody Just last week I was sleeping…I felt right over here at the skate park, hears it and I want that to stop. the nudging of the foot and then and he tried to brush him off and It is so embarrassing. You know, a good hard boot in my leg. Then, keep going. They didn’t take that ‘Watch it, she’s HIV positive.’ all of the sudden, I was getting well. And he got handcuffed and wet. A cop was pissing on me. He a dirty beating and they released Interviewer: pissed on me to get me up. He him right there. – 153 Sorry, I just need to understand fucking pissed on me. I wish I had that. They are talking to you on his name. – 74 She explained that, for people the side of the road? experiencing homelessness in her The practice of police habitually community, an incident like this was Interviewee: waking people who are sleeping not isolated. Yes. on the street in the morning is so commonplace that it’s known as “the My husband has been beaten up Interviewer: seven o’clock wake-up call (74),” as many times by the police, many Then they go into the car and say one participant describes it. “They times. He was sleeping here in over the radio that ‘you’ve got to come around to boot people out the park…a cop kicked him in watch her’? of the doorways and clean out the the head, he was dead asleep Interviewee: streets. That’s what they say. That’s sitting there. Kicked him in the, Yeah, ‘She’s HIV positive.’ And the words they use,” he said. “They square kicked him in the head. I everybody that has one of those clean up the streets of the human was coming across the park with things can hear my name and filth, I guess, I don’t know, the human [name], she was our street nurse I’m HIV positive. And I want garbage.” at the time. We were coming that to stop. It’s so…It’s very looking for him because he was This type of humiliating behaviour, embarrassing. I don’t know how to sick and he had an abscess. when directed at very marginalized make that stop. Looking for him and she’s seen it people, does not make news happened. She watched that cop Interviewer: headlines. But it has a profound effect kick him in the head and she just And that’s happened to you on on the psychological well-being of freaked. – 153 multiple occasions? individuals and entire communities’ relationships with police. It fractures Despite the severity of police Interviewee: their willingness to reach out for help violence, she found no recourse for Yes, every time they stop me, it after a serious crime or when in the the violence her husband endured. goes like that. midst of an emergency. “And again, nothing came of it.
PROJECT INCLUSION 63 Nothing ever happened just because was lying, so they dragged him up too by the cops. It’s because we’re drug addicts (153),” she said. right out and were like, ‘Quit your they thought that she was stealing “They didn’t do anything.” bullshit,’ and now he’s in a cast. and then she didn’t have anything Now they probably look at him and she got pretty banged up… “No Way to Treat Somebody” and they can see he wasn’t [lying]. she uses a walker. – 84 – 170 The sense of injustice and the Despite these incidents, “most of striking power imbalance between Sustaining injuries as a result of a them are good,” this participant said citizens and police are widely felt police encounter is so common for of local RCMP officers, “But there’s a among the people we interviewed some participants that they grow few of them that are, like, racist.” for this study. Participants clearly felt to expect it. “I knew I had warrants that police should be working to a and I was going to get arrested Another participant told us about higher standard than they are in the anyway (313),” one participant how elders are particularly vulnerable community. told us, describing an incident in a to injury. McDonald’s restaurant where police Another participant, in the same Because they are elders they have burst through the bathroom door RCMP jurisdiction as the woman old injuries…they have to watch that she was in and demanded her whose husband was badly beaten how they do that. Sometimes name. “They jumped on me outside by police, told us about an incident they don’t know, so they [might]… there and basically kicked the shit out in which she tried to come to the aid rip their ligament or whatever of me,” she said. of her friend’s son while police were when they pull them back or when beating him up. But she was met with It wasn’t the first time something like they put them in the car they are even more violence. this has happened. hold[ing] you up this way and they are trying to pull this way…it’s like This guy is smaller…they got The time in the [location] over you are hurting their ligaments… him, and they beat his skull on there, they did too. Like, my face their old injuries. They make it the cement everywhere. They was all fucked up. In my pictures look like he is resisting [arrest] knocked him out. So I jumped. even, you can see like there’s like or whatever when they are not, I went underneath and I put my a big welt on my face, like on my and they put resisting on their knees underneath his head, my skin was like taken down—like paperwork…when the person hands were going through his taken—like hammer grinded off my isn’t…they still beat us anyways back, the cop caught my hands face. – 313 they will say, ‘No, that’s not how it twice, then he stopped, and then went.’ – 13 there was a bunch of other cops She was worried that she would lose and around and then they pepper three of her teeth as a result of the These instances of police violence sprayed me. – 289a injury. “When I was in jail, I went to go cause harm in their own right and see a dentist because I thought they create an antagonistic relationship The violence that the officers used were going to fall out. And she’s like, between police and entire on her friend seemed excessive. “I ‘Whatever you do, just resist the urge communities of people. didn’t know what he did, but that is to wiggle them if they go black, then no way to treat somebody,” she said. they’re dead, they’re going to fall out.’ INACCESSIBLE, INEFFECTIVE “No matter what they’ve done, you’re But I listened to her and didn’t wiggle COMPLAINT PROCESSES a cop; you’re supposed to protect them. And about a year later now, Despite the high level of negative them.” they’re all, like, actually reset.” interaction with police, most Made to Feel like Liars participants in this study had never Indigenous Elders Endure reported harassment or abuse. Most Many participants in other regions Mistreatment did not feel like a formal complaint shared stories of being injured by Several Indigenous participants was an avenue that was open to police. shared stories of mistreatment of them. Elders by police. Last week one of my buddies was Interviewer: trying to get back to the camp… I actually videotaped some elderly Have you or anyone you know from what I heard the RCMP guy getting dragged around by ever made a complaint about the went in there. I guess they heard one of the RCMPs here and I police officer? somebody screaming around in showed it to [service provider]. there and it was dark and he was There is actually another woman Interviewee: trying to go back to the tent, he too, this woman doesn’t even I did a couple of times, few years actually broke his leg and the cops drink. She was shopping in No back. were literally dragging him out Frills. She got accused of stealing by the collar and they thought he or something and she got roughed
64 Pivot Legal Society Interviewer: not require them to report directly to Did anything happen? police.
Interviewee: The CRCC and OPCC complaint No. Who would they believe: them processes are difficult to navigate, or me? – 170 both practically and legally, and there are few resources available to assist In communities policed by a a complainant with the complaint municipal police force, complaints process.128 Depending on the police can be made to the Office of the jurisdiction, each complaint process Police Complaint Commissioner is governed by different legislation (OPCC). The OPCC is an independent and requires different submission office of the BC Legislature and criteria, investigative, and review retains jurisdiction over complaints processes. The nuances of what against municipal police officers in police actions constitute misconduct, 126 accordance with the BC Police Act. which agencies are involved, avenues for submitting a complaint, and In RCMP jurisdictions, police the admission and investigative complaints are not covered by the processes that proceed are unlikely OPCC. Instead, pursuant to the to be clear or accessible to any Royal Canadian Mounted Police Act, complainant, let alone people who complaints related to the RCMP are are criminalized and struggling with handled by the Civilian Review and challenges such as homelessness. Complaints Commission for the 127 RCMP (CRCC). The CRCC is an The CRCC and OPCC present independent government agency several analogous technical and and, similar to the OPCC, it is limited logistical barriers for marginalized in its legislative authority to review complainants. However, there are complaint decisions made by the some added challenges in RCMP RCMP when the complainant is not jurisdictions, which constitute the satisfied with the handling of their majority of municipalities in BC. complaint. As outsiders looking in on the RCMP In both cases, in order to initiate a complaints process, it appears that complaint against the police, the the RCMP has a lot of latitude to claimant must submit a complaint investigate themselves, and that they in-person at the police station or act as gatekeepers in complaints by email, fax, or mail. This poses brought against them. This creates difficulties for those who do not own barriers to people trying to access a cellular phone, computer, or printer, the complaints process. When a or do not have access to the internet. complaint is submitted to the CRCC, It is unrealistic to expect people to the RCMP determines admissibility be comfortable walking into a police and whether the complaint will be station to submit a complaint given investigated. The RCMP provides their lived experiences of negative a report to the complainant. Only interaction with police and fears of after that process is complete can retaliation. People require active the complainant make a request support and a mechanism that does
126 RSBC 1996, c. 367. 127 Royal Canadian Mounted Police Act (R.S.C., 1985, c. R-10) Part 6; Royal Canadian Mounted Police Public Complaints Commission Rules of Practice (SOR/93-17); Royal Canadian Mount- ed Police Regulations, 2014 (SOR/2014-281) Part 3 (the RCMP Act in subsequent footnote). 128 In 1992, Commissioner Wally Oppal was appointed by the Attorney General of BC to conduct an inquiry into policing that included inquiries into public complaints and accountability. In 2002, the BC Legislative Assembly Special Committee reviewed the Police Complaints Process. In 2007, the Ministry of Public Safety and Solicitor General instructed the Director of Police Services to conduct a review of the Police Complaints Process. Each final report called to harmonize complaint processes between municipal police and RCMP.
PROJECT INCLUSION 65 for a review by the CRCC.129 If the Women we spoke to in one RCMP fear of the police was paired with “a CRCC is satisfied with the RCMP jurisdiction were so tired of the lack notable matter of fact manner when finding (whether the claim was of accountability that they tried to mentioning mistreatment by police, substantiated, or if misconduct was take matters into their own hands by reflecting a normalized expectation found and discipline determined), gathering evidence. But they found that if one was an Indigenous woman the file is closed. If the CRCC is not that process only led to more hostile or girl police mistreatment is to be satisfied with the RCMP finding, the interactions with police. anticipated.”131 CRCC may send an interim report with findings and recommendations The cops just creep up on you, In this context, the lack of an to the RCMP Commissioner.130 like sneak up. The cops do accessible, fully civilianized However, the recommendations are whatever they want basically. complaints process leaves not binding on the RCMP, and the They don’t follow the book or marginalized victims of police abuse CRCC has no legislative authority to code of conduct. And that’s why and harassment without recourse. determine or enforce discipline. some people have been trying to videotape things. But then they NO ACCESS TO POLICE This process, and the role of the basically assault you and break PROTECTION RCMP in investigating themselves, your phone if they see it or they’ll Most participants in this study stated may help to explain why people harass you, just make life really emphatically that they would never felt like there were no mechanisms hard on you if you try to expose call the police if they were in trouble, available to make a complaint in them for what’s going on. You with only a small minority stating that RCMP jurisdictions. feel like they’re kind of more of a if the situation was dire enough they gang themselves. They’re more may consider placing a call. Interviewer: Has anybody, any like—they’re just like they’re bullies, of the people that have been basically. – 313 Given the high rates of violence assaulted ever, tried to make a against Indigenous women, women formal complaint? who engage in sex work, people who are likely to experience or witness an Interviewee: Given the high rates They don’t let you. They just—they overdose, and people experiencing don’t, the watch commander of violence against homelessness, we are concerned doesn’t let you do that. He hangs Indigenous women, that people who took part in this up on you, he walks away, he women who engage in study do not believe that the police doesn’t take, when you go to the sex work, people who are there to protect them or their communities. police station trying to talk to him, are likely to experience he won’t come out and talk to One participant, a woman in her 40s, you. He just doesn’t let it happen. or witness an overdose, stood out because when we met her I’ve gone to it under community and people experiencing she was in the midst of her first bout and tried to file complaints in homelessness, we are of homelessness and had no criminal another community and they say I concerned that people record. She expressed surprise at have to bring it up with the watch who took part in this what she perceived as the lack of commander here. Well, how do protection from law enforcement you do that when he won’t talk to study do not believe that when she called for help because you? – 153 the police are there to protect them or their she was afraid of her boyfriend while living on the streets. “When I asked Other participants, expressed fear of communities. retaliation if they spoke out against the police, I wanted help, like I wanted police. One Indigenous woman we to go away for the evening (252),” spoke with has experienced violence she said. She was looking to stay in a at the hands of police, but when protected women’s shelter or a place These findings mirror Human Rights we asked if she felt she could ever where she could go without fear of Watch’s 2013 findings from northern complain to anyone about it, she her partner finding her. BC, where researchers described replied, “No. And if we do, we get levels of fear they would expect to They phoned, ‘Everything’s full,’…I even more harassed (71).” see in post-conflict countries such thought, what do you mean, like I as Iraq. They went on to note that did not understand, so you mean
129 “Civilian Review and Complaints Commission for the RCMP”, Government of Canada (11 Aug 2016), online: https://www.crcc-ccetp.gc.ca/en/complaint-and-review-process-flowchart. 130 “Civilian Review and Complaints Commission for the RCMP”, Government of Canada (11 Aug 2016), online: https://www.crcc-ccetp.gc.ca/en/complaint-and-review-process-flowchart. 131 Rhoad.
66 Pivot Legal Society like, if I am scared for my life, there Interviewee: when policing in Indigenous is nowhere you can take me? No, I don’t think so, never, they’re communities. According to Like isn’t that like a basic human mean, like when my ex beat me survivors of domestic violence prevention thing? They say no they arrest me, not him, put me and the community service and the security guard that called in jail and I’m bleeding from my providers who work with them, them, he just sat in his vehicle the head, I’m bleeding, my fingers are Indigenous women and girls often whole [time], he didn’t come out bleeding, they believed his story do not get the protection afforded to see if I was okay. – 252 that I got hurt outside. by these policies. Women who call the police for help may find Most participants seemed resigned Interviewer: themselves blamed for the abuse, to the fact that their local police What did they arrest you for? are at times shamed for alcohol or force was not there to protect them. substance use, and risk arrest for Interviewee: “A lot of women around here, they actions taken in self-defense.132 have a lot of problems. Even the Causing a scene, I don’t know, RCMP, they don’t help or nothing having a couple of drinks. Some respondents made it clear when they call them because they that there are differences among Interviewer: know they’re Native and they know officers and that some officers are Because you had a couple of that they’re always alcoholics and supportive, but they cannot choose drinks? drug addicts and stuff like that who responds if they call for help: (40),” one participant said, noting Interviewee: Interviewer: what they perceived as a disparity Yeah, I got put in the drunk tank, Do you feel like the police between how people in northern even though I wasn’t drunk…I would protect you if you call communities are treated and the got jail time for five days, I got them because you were being access to accountability mechanisms charged, I got two because they victimized by somebody else? as compared to people on BC’s south picked me up and I didn’t know coast. “They don’t help up here as I wasn’t allowed to drink, at the Interviewee: much as they do down south.” time I was drinking lots. I had just That’s hard to say. I don’t—it’s up, lost my kids, and my ex and I were Many participants were speaking sometimes I do and then there are separating, I drank every day for from firsthand experience when they some police that absolutely, not. two years straight. told us that the police would not They look at me like I’m the bad person. protect them: Interviewer: What you are saying is that you Interviewer: Interviewer: didn’t know you weren’t allowed to Do you feel that the police will Okay. Does it depend on the drink? Why weren’t you allowed to protect you if you call them for officer or the— drink, was it a condition? yourself? Interviewee: Interviewee: Interviewee: Yeah. Yeah. – 135 Yes. I don’t know, depends how I, I am People living with a mental illness not going to do that, no, that’s just Interviewer: are also disproportionately likely the few times I have felt I am the Bail condition? to require emergency assistance. victim but then the police come in While we did not specifically ask and so I am the culprit. – 58 Interviewee: about mental health in the context Yes, I guess they have it in there, of policing, a few participants raised The experience of being punished but they never gave me the concerns about reaching out for for attempting to access police paperwork when I asked for it. – any kind of help during a mental protection is especially pronounced 289a for people who are have court- health crisis because police are imposed conditions such as This story parallels a Human Rights generally first responders. “They’re abstinence requirements, which are Watch finding related to Indigenous not sensitive and then the whole largely understood to be untenable women’s experiences with police in process is so terrible. It’s just like for people who are dependent on northern British Columbia: being arrested for committing a substances including alcohol: robbery (358),” said one participant, The RCMP has instituted describing the actions of police Interviewer: progressive policies addressing during a mental health crisis Do you feel like the police would violence in domestic relationships, protect you if you called them for but it appears the police do not Why don’t they just send a couple help? apply those policies consistently of orderlies in an ambulance with
132 Rhoad.
PROJECT INCLUSION 67 British Columbia is a province where at least 2,443 people died of overdoses in 2016 and 2017. It is where Indigenous women have gone missing and been murdered at alarming rates. BC is the site of a continuing epidemic of physical, sexual, and colonial violence against sex workers, trans, Two-Spirit and genderqueer people, youth in the foster care system, and Indigenous people— people who face intersecting barriers in all facets of their lives, some of whom participated in the Project Inclusion study. The experiences they shared overwhelmingly point to an indisputable problem with how police and policing practices interact with vulnerable people. This must be resolved through swift and determined leadership by federal, provincial, and municipal governments working in partnership with affected communities.
an ambulance attendant? And swift and determined leadership by We can learn a lot about what phone you and say ‘Well, your federal, provincial, and municipal genuine community-based policing doctor wants to see you.’ ‘Oh, governments working in partnership could look like in BC from stories okay, I’ll come right out.’ Instead of with affected communities. about individual officers who have boot the door, come in, and four built trusting relationships with the big giant guns…There’s usually A LEGACY OF MISCONDUCT, A participants in this study. four of them. One with a Taser, LACK OF ACCOUNTABILITY one with pepper spray, one with Now [Indigenous officer] walks Commissioner Wally Oppal, QC handcuffs and the other one with with another white cop…And he found that “the initiation and conduct a club or a gun. – 358 doesn’t throw his weight around of the missing and murdered like the other cops do…he talks British Columbia is a province women investigations were a blatant to them. And when we see [him], 134 where at least 2,443 people died failure.” That failure is rooted in we wave at him…you know, of overdoses in 2016 and 2017.133 It racism, misogyny, and contempt for communication…He deals with a is where Indigenous women have people who are homeless, people lot of the Natives downtown and gone missing and been murdered who use drugs, and people who do I’m glad he does because I have at alarming rates. BC is the site of sex work that appears to persist in known him back in my reserve. – a continuing epidemic of physical, policing institutions across BC. In 13 sexual, and colonial violence the context of Project Inclusion, a against sex workers, trans, Two- complex array of serious allegations Another participant told us about an Spirit and genderqueer people, arose against police. But when we extraordinary offer she received from youth in the foster care system, discussed what people wanted from a police officer one freezing night. and Indigenous people— people a police force, their answers were She noticed that I had dropped a who face intersecting barriers in fairly straightforward. blanket behind when I was picking all facets of their lives, some of I just want them to know even cans and bottles. And she had whom participated in the Project though my circumstances are asked very sincerely, ‘Do you have Inclusion study. The experiences messed up at this moment some place to go? Are you going they shared overwhelmingly point and I’m an Aboriginal, I may be to be warm enough? We can give to an indisputable problem with alcoholic, I may be homeless, like you a place at the RCMP station, how police and policing practices I have rights. I need like—I need not that you would be under arrest interact with vulnerable people. them to know that. But they don’t or anything like that.’ But it was This must be resolved through care. – 102 really cold that night. She actually
133 British Columbia Coroners Service, “Illicit Drug Overdose Deaths in BC January 1, 2008 – July 31, 2018”, (22 August 2018), online: https://www2. gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/deaths/coroners-service/statistical/illicit-drug.pdf. 134 Wally T Oppal, “Forsaken: The Report of the Missing Women Commission of Inquiry Executive Summary”, Missing Women Commission of Inqui- ry (19 November 2012) at 26, online: http://www.missingwomeninquiry.ca/wp-content/uploads/2010/10/Forsaken-ES-web-RGB.pdf.
68 Pivot Legal Society offered that, which is for me very suggest that marginalized people’s who requested to join the class humane. – 120 fear of police is justified. continued to grow before the lawsuit settled in 2017.137 This was a memorable moment that According to a study in “E” Division made an impression on this person, (British Columbia), for example, The RCMP has not been able to but when we asked if the participant “frequent tales of retaliation against create meaningful change within its took the officer up on her offer, those who bring forward harassment organization in response to these they replied, “No.” Enduring freezing complaints can also leave victims allegations. The Gender and Respect temperatures, fatal as they may be, and bystanders feeling helpless Action Plan was launched in 2013 to is still more appealing than spending to try to address the problem [of respond to widespread allegations of time inside a policing institution harassment].”135 Indeed, a number workplace sexual harassment. It set because it has become such a site of RCMP members and employees out 37 “actions” to effect change, as of trauma for so many. “Because who spoke to the Commission were well as measures and milestones to generally I don’t like being in a cell. I’d preoccupied about being targeted as monitor progress. rather be outside 100% of the time a result of raising concerns about the than being in a jail cell, even though workplace. In some cases, members In 2017, the CRCC for the RCMP there is a mat there or whatever reported incidents of reprisal that wrote that: (120).” threatened both the safety of the The RCMP Commissioner member and the integrity of the committed to report internally These are examples of the ways investigation. in which small changes in how on the progress of these actions officers relate to the communities Two highly publicized lawsuits every 180 days to ensure they engage with most can lead to launched by former RCMP officers transparency and accountability. greater health, safety, and inclusion. highlight longstanding internal However, to the Commission’s However, it is not enough to change practices and cultural issues within knowledge, only one such update the system one officer at a time; the RCMP that have come under appears to have occurred, in the there is ample evidence that there public scrutiny in recent years. spring of 2014. Furthermore, while are systemic problems with how the In 2012, after speaking publicly the Commission was informed police are operating in BC. No police about gender-based harassment that the Gender and Respect force is exempt from criticism, but in the RCMP, Janet Merlo became Action Plan remains active, no the RCMP’s internal culture and lack the representative plaintiff in a one at the RCMP’s National of accountability has come under class action lawsuit, launched in Headquarters appears to hold particular scrutiny in recent years. BC, against the RCMP and the responsibility for this initiative. Given that the RCMP polices most Solicitor General of Canada. The There appears, therefore, to be communities in BC, we need to be lawsuit alleges that “female regular no one in a position of senior paying close attention. members, civilian members, and leadership who is accountable for public service employees were ensuring either that the 37 actions Abuse of Authority by the RCMP subject to systemic discrimination, have been implemented, or that harassment, and bullying on the basis they are achieving the desired For people who have not experienced 138 of gender and/or sexual orientation, goals. the intersection of extreme poverty, and that the RCMP failed to protect substance use, homelessness, and Despite all the publicity sexual the women from this treatment.”136 racism, some of the stories shared by harassment within the RCMP has Linda Gillis Davidson launched a participants in this study may be hard received, there is evidence to similar class action in Ontario on to imagine or accept. As a result, it suggest that a culture of sexual behalf of all regular members, is useful to evaluate these accounts harassment continues to exist civilian members, and public service through the lens of official reports on within the organization to this day. In employees. Davidson and Merlo’s the internal culture of the RCMP. February 2018, while we were writing lawsuits were consolidated into this report, the CBC reported on a a single claim before the Federal Even a cursory look at recent reports Facebook group purportedly created Court for the purpose of approving a into allegations of harassment, by and restricted to rank-and-file men settlement of the claims. The group abuse, and retaliation against officers within the RCMP. It contains sexually and civilian staff by RCMP officers of current and retired police officers
135 “Report into Workplace Harassment in the RCMP”, Civilian Review and Complaints Commission for the RCMP, Government of Canada (25 April 2018), online: https://www.crcc-ccetp.gc.ca/en/report-workplace-harassment-rcmp#toc.1. 136 “RCMP Sexual/Gender Harassment Class Action Settlement Website – FAQ”, Kim Spencer McFee Barristers P.C., online: http://www.rcmpclass- actionsettlement.ca/faqs.htm. 137 Colin Perkel, “Landmark deal in RCMP sexual-harassment class action wins court approval”, CBC News (31 May 2017), online: http://www.cbc. ca/news/canada/british-columbia/rcmp-sexual-harassment-class-action-1.4140138. 138 Report into Workplace Harassment in the RCMP.
PROJECT INCLUSION 69 Many of the stories we heard from people about their interactions with police on the street closely mirror the stories of discrimination, harassment, abuse of authority, and lack of transparency and accountability that have been identified as endemic within the RCMP.
suggestive material, including a The Human Rights Watch report, of the Minister of Public Safety, fictional frontier scene with an RCMP “Those Who Take Us Away,”140 is confirms that such problems officer in uniform with a burlesque based entirely on conversations continue to persist in the RCMP. dancer in costume performing what with Indigenous women and girls Despite the known problems, appears to be oral sex on him. The about their relationships with police the RCMP has been slow to secret men-only Facebook group in northern British Columbia. That change. While senior leaders have was apparently set up by RCMP report details that in five of the developed a host of “action plans” employees in BC, but has members ten towns they visited, they heard and “initiatives,” there has been from across the country. The CBC allegations of rape or sexual assault little real change in the day-to- was unclear how many of the 700 by police officers.141 day experiences of many RCMP members of the group were current members and employees; rather, RCMP officers, but was able to There is also reason to believe that their trust in the organization has confirm that administrators for the the RCMP will not change of its own only eroded further.142 group request regimental numbers accord. On February 4, 2016, with the before adding people to it.139 lawsuits ongoing, newly appointed The Commission’s report only looks Federal Minister of Public Safety Ralph into RCMP harassment in the context There is reason to believe that sexual Goodale requested that the CRCC for of the workplace. However, the report harassment is not limited to women the RCMP undertake a review of the states that: working inside of the RCMP. We RCMP’s policies and procedures on did not ask questions about sexual workplace harassment. The resultant Increasingly, such problems are misconduct, but a few women who report lays out a series of ongoing also eroding the trust of the took part in this study reported sexual concerns about the organization’s Canadian public, who are asking harassment by police. ability to protect its workers and whether the RCMP’s internal offer a workplace free from abuse of problems have “filtered outside” Interviewee: authority and harassment. and affected the treatment of You know in 2005, I was supposed members of the public. to be on house arrest, right, for 18 Over the last several decades, months. And a cop phoned me the reputation of the Royal The people who came forward and and asked if I wanted to go to the Canadian Mounted Police has shared their experiences as part movies. been tarnished by a seemingly of this project are members of the endless stream of reports of public, and among some of the Interviewer: workplace harassment, sexual most marginalized and stigmatized Really? harassment, bullying and residents of BC. In many of the intimidation. These problems towns we visited, we were forced Interviewee: have been well documented by to put limits on the number of And I told my probation officer external reviews, surveys, media participants we could speak to about it and he got shipped out of reports, and lawsuits. Indeed, and the amount of time we could town. the most senior leaders in the spend on each interview. It became apparent very quickly in the course Interviewer: organization have themselves of our conversations that no one He got shipped out of town but acknowledged that bullying and had ever come to their community you don’t know where to? harassment are endemic and that RCMP organizational culture must to ask about their experiences with Interviewee: change. This review, conducted police, nor did people feel they could No. – 84 by the Commission at the request access an appropriate channel for
139 Manjula Dufresne, “Men-only RCMP Facebook group crosses line of conduct, say female RCMP members”, CBC News (14 February 2018), online: https://www.cbc.ca/news/canada/british-columbia/men-only-rcmp-facebook-group-crosses-line-of-conduct-say-female-rcmp-mem- bers-1.4533910. 140 Rhoad. 141 Rhoad. 142 Report into Workplace Harassment in the RCMP.
70 Pivot Legal Society communicating this information, street closely mirror the stories of space. The stress and fear that such as through formal complaint discrimination, harassment, abuse they experience are no less real or processes. of authority, and lack of transparency worthy of attention than that facing and accountability that have been officers who have been harassed. As a result, we were inundated with identified as endemic within the In fact, abuse by police and the stories of serious misconduct and of RCMP. resulting feeling of powerlessness blatant targeting handed down by impacts everything from substance police, which we can only infer would For the people who took part in use, to access to health services, to otherwise go unheard. Many of the this study, there is no alternative decisions about whether to call for stories we heard from people about to the daily harassment that they help during a crisis. As a province, we their interactions with police on the experience while living in public must demand better from our police.
Recommendations
1. The Ministry of Public Safety and Solicitor General and the ii. ensure that civilian investigators and civilian staff Attorney General, working in full partnership with historically members are responsible for the entirety of the marginalized communities and communities with high complaint resolution process; and levels of police interactions, must develop a set of guiding iii. allow the OPCC to audit police complaints each values and principles for policing in British Columbia that are year, particularly where they involve discrimination grounded in human rights. based on race, gender, poverty, or health status, 2. The Attorney General must take immediate action to and publicly report on areas of concern for further increase access to justice for people who believe they have investigation or reform. been the victims of excessive force, discrimination, or 3. The Director of Police Services must develop the following harassment by police by: Provincial Policies for all policing agencies in British a. dedicating legal aid funding for: Columbia: i. a clinic to support people to make police complaints a. a Provincial Policy governing police interactions with through summary advice, short service, or full intoxicated persons, in partnership with people who use representation based on the needs of the individual drugs and people living with alcoholism, and fund the and the nature of the complaint; implementation of the Policy. This Policy should make it clear that: ii. public legal education workshops and materials to help people navigate the process of bringing a i. police interventions with a person who is intoxicated lawsuit against a police officer or police force; and must be minimally impairing on liberty and officers must make the security of the person (health) the iii. legal representation for families and/or victims in paramount consideration in determining whether to instances of police-involved serious injury or death to apprehend an individual; facilitate full participation in a Coroner’s Inquests and civil actions. ii. city cells are not the appropriate place to bring an intoxicated person for their own safety or other b. amending the Police Act to expand the mandate of the therapeutic reasons. Alternatives to detention Office of the Police Complaint Commissioner (OPCC) in including, but not limited to, sobering centres, order to: hospitals, and other community-based options must i. ensure that all police officers and forces operating in be made available; and BC fall under the mandate of the OPCC; iii. where an intoxicated person must be brought into cells, their health care needs shall be paramount and health care visits will be mandatory.
PROJECT INCLUSION 71 b. a Provincial Policy on harm reduction which should i. a strong statement that explains to all police forces include: the harm caused by the confiscation of homeless people’s belongings; i. a directive to deprioritize simple possession of controlled substances and an overview of the harms ii. deprioritize confiscating homeless people’s of confiscating substances (including alcohol) from belongings, especially necessities of life such as people with addictions and limited resources; shelter, clothing, medication, and important personal items; and ii. a directive to never confiscate new or used syringes, naloxone, and other harm reduction and overdose iii. a directive to issue receipts for belongings and cash prevention supplies; where they must be taken, with instructions for how to get them back. iii. a statement that harm reduction supplies, whether new or used, are not a basis for search or e. a Provincial Policy detailing people’s right to privacy in investigation; and tents and informal living structures akin to the right to privacy in private residences. iv. a directive that local police forces work with service providers to develop bubble zones around safe 4. The Director of Police Services must work with the consumption sites, overdose prevention sites, and Independent Investigations Office and the Coroners Service other harm reduction sites, taking into consideration to audit deaths and serious injuries in city cells in BC over policing practices that may deter access including the past 10 years, including an analysis of race, disability, visible presence, arrests in close proximity, housing status, and gender, and make the findings and undercover operations in and near, and surveillance recommendations for reform publicly available. of people using the service. 5. The Ministry of Housing and Municipal Affairs (MHMA) must c. a Provincial Policy on police attendance at overdoses make a province-wide commitment to supporting homeless which includes: people to maintain their belongings and to ensuring that homeless people have access to services without fear of i. a directive not to attend at drug overdose calls, losing their possessions. The MHMA must partner with local except where requested by Emergency Health governments in collaboration with groups of people with Services—usually in the event of a fatality or threats lived experience, to train local bylaw officers: to public safety; and a. to recognize and respect the belongings of homeless ii. a clear statement that the role of law enforcement people; and at the scene of a drug overdose is to deliver first aid if they are the only responders available, or to b. to work effectively with people experiencing protect the safety of Emergency Health Services homelessness to clean up or discard belongings and members of the public, not to investigate the where there is a pressing public safety, access, or individuals or circumstances at the scene unless environmental need to do so. police determine that there is an urgent public safety 6. The Ministry of Public Safety and Solicitor General, in concern, for example, if violence is occurring at the partnership with the MHMA, should issue a directive stating scene. that no public funds may be used for private security patrols d. a Provincial Policy on confiscation of belongings by on public property, including in public parks. police which includes:
72 Pivot Legal Society PART TWO: CHANGE THE SYSTEM Section Two Everything Becomes Illegal: How Court-Imposed Conditions Set People up to Fail
“Conditions” are the everyday term • short-term jail stays for breaching for a set of court- or police-imposed conditions can have long-term, rules that people who are involved serious, or life-threatening with the criminal justice system, consequences; but not incarcerated, are obliged to • people living homeless follow. Conditions prohibit or make experience uniquely negative mandatory certain behaviours like impacts of various conditions; abstinence from alcohol or drugs, carrying harm reduction equipment, • conditions can create setting foot in a specific geographic homelessness or housing area, or being out of one’s place precarity; and of residence past specified hours. • some conditions cause more Failure to adhere to conditions harm than others: can put a person at risk of criminal conviction. • abstinence conditions criminalize people with Being charged or convicted of addictions; failing to adhere to one’s conditions is often referred to as a “breach” • prohibitions on carrying so- or “breaching.” For many living called “drug paraphernalia” in poverty and homelessness, criminalize health care and put especially people who rely on drugs people’s health at risk; and and alcohol, court- and police- imposed conditions play a ubiquitous • area restrictions (better known role in shaping their lives. as “red zones”) prohibit people on carrying weapons or phones, from accessing the services, reporting to a corrections or bail During research for Project Inclusion, spaces, and communities that official, or not changing residential we asked people if they were subject they rely on. address without giving notice. to conditions and, if so, how those conditions were impacting their daily Conditions are intended to address The conditions we address here lives. the specific circumstances of an are not those designed to stop accused or convicted person in a convicted sex offender from We learned: light of the particular offence at loitering in parks, nor are they about issue. While they vary from person • conditions are setting some restricting a violent offender’s access to person, they are not uniquely people up to fail, leading them to a weapon. The conditions we customized to each person. into a cycle of criminalization examine in Project Inclusion are what Conditions are often chosen from and incarceration for relatively we call “behavioural conditions” – a set number of common options innocuous behaviours; conditions that control the everyday including: curfews, abstinence activities of people who are working from drugs or alcohol, prohibitions in the grey economy, experiencing
PROJECT INCLUSION 73 Behavioural conditions often do not properly reflect how reflected in what Pivot sees every the intersections of poverty, substance use, addiction, day. The other thing we saw is how mental health, disability, and racism shape people’s behavioural conditions actually make certain behaviours criminal that lives and daily activities. Our research found that while otherwise wouldn’t be in absence adhering to behavioural conditions is impossible for of a court order or police-imposed many of the people we interviewed, breaching them puts condition. For example, by making them at risk for criminal sanction. drinking alcohol or staying out late illegal through the imposition of conditions, the criminal justice homelessness, and/or using which is not yet law, may or may not machine is actually producing substances.143 Behavioural conditions improve their circumstances. criminalization that otherwise would often do not properly reflect how the not exist. In one Senate report, these offences were described in intersections of poverty, substance WHERE DID ALL THE REAL part as ones that “rarely involve use, mental health, disability, and CRIMINALS GO? racism shape people’s lives and harm to a victim” and “do not involve It’s easy to vilify someone labelled a daily activities. Our research found behavior that is popularly considered criminal. We can all conjure the image 146 that while adhering to behavioural ‘criminal.’” of a criminal mastermind or a violent conditions is impossible for many of predator. Yet once we scratch the Over the last decade, our justice the people we interviewed, breaching surface of the “criminal” label, we find system has made a “significant them puts them at risk for criminal something more complex and often transition to the ‘front end’ of the sanction. more benign than villainous pop justice process,”147 meaning that We will review how conditions culture representations suggest. We police and courts are focusing more are imposed on people and the find people making the best choices on how people are controlled and philosophy behind reliance on available to them while navigating policed while they are on bail—before conditions, by discussing each of a life impacted by poverty, trauma, they are convicted of a crime. This these issues in turn. racism, colonization, homelessness, has resulted in both an increased ill health, and substance use.145 reliance on behavioural conditions In the course of writing this report, and proactive enforcement of those the federal government released Bill conditions by police. As these C-75, An Act to amend the Criminal behavioural control tactics have Code, the Youth Justice Act and other increased, so too have criminal Acts and to make consequential Pre-trial detention is charges for breaching behavioural amendments to other Acts (C-75).144 now outpacing the rate conditions, which have become Critique of C-75 has rolled in from of people in sentenced the most common criminal offence many corners of the legal profession. custody. cycling through our courts. As a While many aspects of C-75 will result, the rate of pre-trial detention impact the lives of participants in is now outpacing the rate of people in Project Inclusion, we are focused here sentenced custody.148 solely on the impact of behavioural During the course of our work, we conditions on participants. spoke with a defence counsel, a Research for Project Inclusion lawyer who represents accused included extensive interviews with In this section, we focus on sharing people and ensures they have a fair people whose bail and probation the stories of how various types of trial. She told us that after decades conditions have negatively impacted conditions are harming people. We of this work, she rarely sees actual their lives. While bail and probation will also touch briefly on howC-75 , crime in these courts anymore. She conditions are often justified by the just sees poverty. Her experience is courts as measures that maintain
143 Marie-Eve Sylvestre et al, Red Zones and other Spatial Conditions of Release Imposed on Marginalized People in Vancouver (University of Otta- wa, Simon Fraser University, Université de Montréal: 2017) at 13 and 55. 144 1st Sess, 42nd Parl, 2018 (C-75). 145 Catherine Chesnay et al, “Taming Disorderly People One Ticket at a Time: The Penalization of Homelessness” (2013) 55:2 Canadian Journal of Criminology and Criminal Justice at 161 and Marianne Quirouette et al, “Conflict with the Law: Regulation & Homeless Youth Trajectories toward Stability” (2016) 31:3 Canadian Journal of Law and Society at 383. 146 Standing Senate Committee on Legal and Constitutional Affairs, Delaying justice is denying justice: an urgent need to address lengthy court delays in Canada (Final Report), June 2017 at 139. 147 William Damon, Spatial Tactics in Vancouver’s Judicial System (M.A. Geography, Simon Fraser University, Burnaby, 2014) [unpublished] at 22, online: http://summit.sfu.ca/item/14152. 148 Damon at 2, 22-26.
74 Pivot Legal Society public safety, interviewees showed WHEN EVERYDAY ACTIVITY the number of completed [criminal] us how their conditions actively put BECOMES ILLEGAL cases between 2005–2006 and them in harm’s way. As a result of such conditions and an 2013–2014 in BC, the number of completed cases including at least Many Indigenous participants had increasing focus on enforcement by police,150 our local cells, courts, and one Administration of Justice Offence been jailed for breaching a condition. [breach] increased by 10.8% during One man explained the long criminal provincial institutions are filled with people guilty of crimes that equate the same period (from 13,010 cases record he lives with because he has in 2005–2006 to 14,413 cases in breached conditions. “It all started to “late for an appointment,” “late for bed,”151 “being there,” and “forgetting 2013–2014), representing now over when I was 12 years old…I got like 52 156 152 40% of all the cases.” breaches, a bunch of theft-unders their homework.” One report notes [shoplifting] (102),” he said. He that up to 20% of all charges within This increased focus on imposing told us he accumulated this large the BC Provincial Court concern and enforcing behavioral conditions 153 quantity of breaches because of breach offences. coincides with a 17% decrease in the “no-drinking stipulations on me,” in number of adults in the corrections other words, behavioural conditions. system (in correctional institutions Such conditions failed to recognize Our local cells, or under community supervision, the lifetime of alcoholism he has courts, and provincial for example on probation) between 157 struggled with, and how untenable institutions are 2012-2013 and 2016/2017. What a no-drinking condition is for this this means is that we are seeing man. “I was alcoholic since I was, like, filled with people a drastic increase in the number eight (102),” he told us. “Because guilty of crimes that of people charged with crimes for my parents are.” To impose a no- equate to “late for an engaging in everyday behaviours drinking condition on a person appointment,” “late for such as going downtown, drinking, living with severe alcohol addiction bed,” “being there,” or coming home late during a time is to ignore the complexities of period where cases for substantive substance use disorder, to ignore the and “forgetting their crimes actually legislated in the life-threatening aspects of alcohol homework.” Criminal Code are decreasing. There withdrawal when experienced with are, to put it plainly, “fewer crimes no supports, and, ultimately, to set a being committed, and those that are person up for failure. In Canada between 2001–2012, committed are less violent than they were in the past.”158 People like this man, and so many charges for failure to comply with a others we heard from, are treated by court order (often breaching a bail The increase in people arrested and 154 the criminal justice system as prolific condition) increased by 58.3%. convicted for breaching conditions offenders. Their records expand year Charges for breach of probation may be linked to the “substantial over year, breach after breach—often conditions increased 47.4%. During increase in police resources and the starting with things like petty theft the same period, overall charges for general decline in crime levels” over for stealing food when they were all criminal offences increased only the last many years, freeing police 155 hungry, or using drugs to dull the pain 4.1%. to engage in proactive enforcement of homelessness, injury, or illness. In BC the data “shows an even more using conditions as a means to These are the so-called “criminals” important increase. While there has control the behavior of people 149 159 who now crowd our prisons. been an overall decrease of 19% in involved in the justice system.
149 Marie-Eve Sylvestre et al. “Spatial Tactics in Criminal Courts and the Politics of Legal Technicalities” (2015) 47:5 Antipode at 1346. 150 Abby Deshman & Nicole Myers, Set up to Fail: Bail and the Revolving Door of Pre-trial Detention (Canadian Civil Liberties Association, 2014) at 62-63. 151 See example Sylvestre (2017) at 67. 152 D. Geoffrey Cowper, QC, A Criminal Justice System for the 21st Century: Final Report to the Minister of Justice and Attorney General Honourable Shirley Bond (BC Justice Reform Initiative, 2012) at 148. 153 D. Geoffrey Cowper, QC, A Criminal Justice System for the 21st Century: Fourth Anniversary Update to the Minister of Justice and Attorney Gen- eral Suzanne Anton, QC (2016) at 8. 154 These figures are not adjusted for population growth. 155 Damon at 23-24. 156 Sylvestre (2017) at 30. 157 Juristat, Adult and youth correctional statistics in Canada, 2016/2017 (Canadian Centre for Justice Statistics, 2018) Catalogue no 85-002-X at 3. 158 Deshman & Myers at 7. 159 Cowper (2012) at 279.
PROJECT INCLUSION 75 How Conditions Work
Conditions can be imposed at different stages in the criminal not communicate with the victim or witness, deposit justice process; passport, inform police of a change in address, refrain from going to any specified place, report at a specified 1. People who have not been found guilty of an offence and time. Courts may furthermore impose conditions are not kept in custody pending trial may encounter one of necessary to ensure the safety and security of any victim two scenarios: they will either be released by a police officer or witness or other reasonable conditions specified in or they will be brought into the court system to resolve the the order as the justice considers desirable. Despite the terms of their release (better known as “bail”): discretion given to courts, they are required to release a. Release by a police officer people on the least restrictive conditions available and Police officers have legislated obligations regarding Crown must demonstrate the need for each restriction. the release of persons they arrest with and without These safeguards are intended to ensure that people are a warrant. Where there is no warrant for the arrest, released on the least restrictive conditions reasonable 164 and absent extenuating circumstances necessitating in the circumstance and reflect fundamentalCharter detention,160 officers are to release people without rights to reasonable bail and the presumption of 165 arresting them or as soon as practicable after arrest. In innocence. doing so, officers161 are required to release people with There are three purposes to imposing pre-trial the least restrictions possible placed on their liberty. conditions: to ensure attendance at trial; to protect Officers may, however, in some circumstances impose public safety; or, to maintain confidence in the conditions listed in the Criminal Code including: remain administration of justice. within the jurisdiction, abstain from communicating People subject to conditions upon release by police with the victim, deposit one’s passport, inform police of or on bail have not been convicted of any offence and a change in address, abstain from drugs or alcohol, and conditions are not intended to be imposed in order to any other condition that the officer in charge considers rehabilitate or punish people.166 necessary to ensure the safety and security of any victim of or witness to the offence. Officers do not, however, For ease of understanding, we will refer to both police- have unfettered discretion to impose other conditions.162 imposed conditions and court-imposed conditions as Police officer-imposed conditions are immediately “bail” and will differentiate between police-imposed and enforceable, even though they have not been endorsed court-imposed conditions only where necessary. by the court or reviewed by a prosecutor, and even 2. People who have been found guilty of an offence may have before a decision has been made as to whether or not conditions imposed on them where they are sentenced to any charges will be laid against the individual. People probation or conditional sentence orders, or when exiting must either wait until their first court appearance, which prison on parole. can be months away, to request changes to these conditions or they have to make a request to the court a. Probation to appear at an earlier date to vary their conditions. Probation is a criminal sentence that is served in the b. Interim release or “bail” community and is rehabilitative in nature. Conditions imposed, in addition to legislatively required People who are not released by police will not be conditions,167 must “be reasonable and aim at protecting brought before the court to resolve the terms of their the society and facilitating the offender’s reintegration. release or will negotiate their release by consent with a They cannot be primarily punitive.”168 Further, there must prosecutor (Crown). Both are forms of judicial interim be “a nexus between the offender, the protection of the release (bail). In most circumstances, the court is community, and his reintegration into the community.”169 required to release people unconditionally unless the Crown can demonstrate that detention is justified or b. Conditional sentence orders and parole 163 that imposing conditions on release is reasonable. A conditional sentence order (CSO) is a sentence of Courts have broader discretion than police to impose imprisonment that a person is ordered to carry out in conditions including: remain within the jurisdiction, do
160 People who are not released by police will not be brought 161 Criminal Code, ss 496, 497, 498, 503. 162 See also Deshman & Myers at 15. 163 Criminal Code, s 515, R. v. Antic, 2017 SCC 27, at paras 19, 67 [Antic]. See also R v Omeasoo, 2013 ABPC 328, at para 30 [Omeasoo]. 164 Criminal Code, s 503 and Antic at para 67. 165 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 1, ss 11(d) and 11(e) [Charter]. 166 See Omeasoo at para 31. 167 These include “keep the peace and be of good behaviour,” do not communicate with victims or witnesses or go to any specific place except with consent of the individual or order of the court, appear before the court as required, notify the court of changes in name, address or employment. See example Criminal Code s 732.1. 168 Sylvestre (2017) at 21. 169 Sylvestre (2017) at 21.
76 Pivot Legal Society the community, commonly referred to as “house arrest.” relate to those imposed in order to protect family members Because this is imprisonment within the community from violence or to protect the public from people likely to CSOs do include the imposition of terms that are commit sexual offences, etc. punitive and limit the liberty of the person.170 Parole The conditions that Project Inclusion participants talked about is the process by which people can be released from were almost exclusively bail and probation conditions. imprisonment prior to the completion of their sentence. Regardless of the mechanism by which conditions are imposed *Project Inclusion participants did not talk about CSOs or on an individual, our analysis is limited to conditions that are parole. Our analysis of the impact of conditions generally harmful or ill-advised on the basis of addiction, limit access to does not relate to CSOs or parole. necessary health services, are incongruous to someone’s social 3. There are also conditions to protect against the commission or housing status, or are incompatible with the real needs and of serious crimes, such as personal injuries to family circumstances of the individual, resulting in criminalization for members or sexual offences.171 These were not the types behaviours that are necessary, inevitable, or reasonable in the of conditions that Project Inclusion participants talked circumstance. about and our analysis of the impact of conditions does not
170 Sylvestre (2017) at 21. 171 See Criminal Code ss 810-810.2.
Book Law Versus Street Justice this is having on day-to-day judicial in the Vancouver Provincial Court Bail conditions are to be imposed practice. Regarding consent-based alone, 96.9% of all court-imposed 174 only where necessary and, where court bail, the SCC has dictated bail orders included conditions and necessary, only to address concerns that these same principles should 78.6% had between two and eight 176 related to releasing a person on bail, guide the actions of Crown in cases conditions. Across BC in 2016/2017, such as ensuring attendance in court, where conditions are imposed by red zones and abstinence conditions public safety, and confidence in the consent. Due to difficulties in tracking were amongst the top ten conditions administration of justice.172 Probation trends in consent-based court bail imposed on people released on bail. conditions are imposed to influence over time, there has been little Red zones were imposed in 58% the future behaviour of an individual opportunity to systemically assess of bail orders (25,118 orders) and and probation is intended to be “a whether this has had an impact on abstinence conditions were imposed 177 rehabilitative sentencing tool…It is the actions of Crown in seeking bail in 38% of bail orders (16,246). 175 173 with conditions by consent. not considered punitive in nature.” The heavy use and reported punitive In relation to court bail, the Despite these legislated and effects and harms associated with Supreme Court of Canada (SCC) has common law limitations on the these conditions have led to multiple recently reiterated in R v Antic the purposes and use of conditions recent efforts by academics and civil requirement that people be released under both bail and probation, the liberties advocates to bring these 178 unconditionally, absent justification imposition of conditions on some issues to light. Conditions have for every condition to be imposed. community members remains also been the subject of analysis by 179 Since the judgement in 2017, there a prevalent issue, for a variety various entities of government. remains uncertainty as to the effect of reasons discussed below. For Despite these critiques and in the example, between 2005 and 2012 face of the significant impacts on
172 Antic at para 67 (j) and Sylvestre (2017) at 17. See also Criminal Code subsection 515(10). 173 R v Rawn, 2012 ONCA 487 at para 35. See also R v Goeujon, 2006 BCCA 261 (CanLII) at para 49 and R v Shoker, 2006 SCC 44 at para 10. 174 These are conditions that both parties agree to; however, little consideration is given to the power dynamics between Crown or police and a person facing arrest or detention. Those conditions make true consent illusory in many cases. 175 Antic at para 44. 176 Sylvestre (2017) at 43. This includes both Drug Treatment Court and Downtown Community Court projects. 177 Juristat at 10. 178 See Sylvestre (2017); Damon; Deshman & Myers; and John Howard Society, Reasonable Bail? (Toronto: John Howard Society, 2013). Note that the Sylvestre (2017) report situates their analysis geographically, providing considerable social context for the Downtown Eastside of Vancouver. While this analysis is accurate, the issues of poverty, addiction, homelessness, vulnerability to HIV and Hepatitis C are not geo- graphic issues – they are social issues. Participants in Project Inclusion face the same societally imposed social context as people in the Down- town Eastside; however, many do so in smaller communities where they are less visible to policy makers due to their numbers and often have even less access to services and face stricter, more oppressive police- and court-imposed conditions. 179 See Cheryl Marie Webster, “Broken Bail” in Canada: How We Might Go About Fixing It (Research and Statistics Division, Department of Justice Canada, 2015); Cowper (2012); Cowper (2016); and Standing Senate Committee on Legal and Constitutional Affairs at 134, 138-140.
PROJECT INCLUSION 77 For some participants, liberty and health, little seems to hours of their arrest to determine agreeing to unnecessary have changed. if they will be further detained or and unmanageable released. Based on what we heard There remains considerable from participants, however, many conditions has been the indication that conditions are, at people will sign conditions that only way to avoid jail. times, being imposed for improper are unreasonable to avoid even 24 purposes (or purposes beyond their hours in custody, due to fears of lawful scope), or are resulting in withdrawal, losing belongings on the consequences that are contrary to street, or losing income, amongst their stated purpose. For example, many others. Other people may sign some bail conditions have been because they fear that they will be assessed as being geared towards detained much longer once brought so-called “character modification into custody. Either way, participants 180 or improvement” rather than told us that they did not feel they had public safety or attendance in court. a choice when presented with police- This motivation goes beyond the imposed conditions. purposes of bail. Their experience is supported by Additionally, as we see clearly in our other literature that analyses the data, conditions can send people into bail system181 and by local defence a cycle of arrests for breaches of their counsel in the Lower Mainland, who conditions, even where they have not reported to us that some police been, and may never be, convicted officers release people on highly of an underlying offence. Further, onerous conditions that a judge probation conditions are increasingly would be very unlikely to impose and placing people back into the criminal then schedule an accused person’s justice system rather than serving first court appearance months in their intended purpose, which is to the future. This means people are support people’s reintegration into subject to overly harsh conditions our communities. for a significant period of time before even attending court where a judge Outside of the strictures of court- may vary their conditions or before imposed conditions, it seems clear requesting a review by a prosecutor— that police continue to leverage an onerous mechanism that we did their ability to arrest as a means not hear was an effective tool for of imposing conditions on people people affected. Moreover, if Crown that are not always necessary, later decides not to approve charges, transparent, or warranted. For some people will have spent months participants, agreeing to unnecessary subject to those conditions without and unmanageable conditions has charges ever being laid against them. been the only way to avoid jail. Further, sometimes these police- They automatically red-zoned imposed conditions are written down me from the area when they as part of an appearance notice, as arrested me. They basically said described above. Sometimes they are it was my choice whether I was only verbal warnings. These verbal going to walk or be jailed…this warnings are not legally enforceable, is the RCMP—and that’s how the but we heard that people often feel red-zoning came about, whether I bound by them in order to avoid signed that paper to be red-zoned harassment by police, or that they or not. If I didn’t sign it I would go were unsure whether they had to jail. – 427 received a warning or an enforceable The law requires that anyone who condition. refuses to sign such police-imposed All of this results in uncertainty and conditions and is arrested must be fear for people who do not know brought before the court within 24
180 Deshman & Myers at 50. See also Sylvestre (2017) at 32; Cowper (2012) at 149; and R v Reid, 1999 BCPC 12 at para 58. 181 See Deshman & Myers at 24.
78 Pivot Legal Society regardless of what the legislation or case law dictates.
These so-called “consent” arrangements and police bail conditions are rarely subject to in- depth scrutiny by courts. They are not tracked in ways that would allow for a quantitative assessment. The experiences of people subject to these decisions, however, make clear that people are being set up to fail.
During the interview process for this study, we sat with people as they described substance use withdrawal—the sweating, shaking, insomnia, diarrhea, and debilitating pain. Some described it as feeling sicker than the worst flu imaginable. The experience is torturous; the drive to feel better is overwhelming. That is the context in which many people are asked to consent to many of these conditions.
One man we spoke with described signing his name on a set of bail conditions. As he signed, he knew he’d been set up for failure. But it was his only choice in the moment because of the pain and suffering he was experiencing due to opioid withdrawal and because he knew this was his opportunity to avoid another night in custody. He, like many others, signed whatever was put in front of him; in other words, he made a perfunctory agreement to the conditions, all while knowing that he was making promises he couldn’t keep. When asked if he meant it when he promised to stay abstinent or go to treatment, he responded, what conditions have been imposed willing to sign if you were taken into “No. I just wanted out to go get on them. Indeed, many Project jail cells, and signing an agreement better (63).” Inclusion participants shared that, was the only way out? due to the fear and stress they were The complex set of harmful experiencing while interacting with In both police-bail and consent-based outcomes, which we explore further the police, they could not keep track court-bail, both police and Crown below, mandates that Crown and of the conditions imposed upon hold institutional authority that police must be held to an impeccable them. fundamentally alters the nature of standard in determining what, if any, “consent” or “voluntary agreements.” conditions to offer someone as a The conditions process can be As a result, they are able, whether consent release or to impose instead likened to contract law. Think about intentionally or unintentionally, of arresting someone. the last time you signed a contract to impose unreasonable and without reading it in full because you unjustifiable conditions on people Crown and police need to be were in a rush, or desperately needed who will agree to nearly anything “wary of the detainee’s pro forma the service that was being offered. in order to secure their release, [perfunctory] agreement to abide Now, consider: what would you be by an abstinence clause (whether
PROJECT INCLUSION 79 Of 1,854 reported overdose deaths in BC between January 2016 and July 2017, based on Coroner data publicly available as of April 2018, 18% of people died while under community corrections supervision (for example, they were on probation in the community) or within 30 days of release from a correctional facility.
realistic or wholly unrealistic) simply them up to fail—which is, in reality, range from 8-24 hours after last use; to secure his or her immediate often no real choice at all. for long-acting opioids (methadone), release from custody.”182 This is 12-48 hours after last use.183 Thus equally true of other conditions. Even Short-Term Detention even a day or a few days in custody Can Have Lasting Negative can send a person into painful, The fact that people give Consequences sometimes debilitating withdrawal or perfunctory agreements is not death.184 For pregnant women, opioid Spending just a few days in jail for evidence of personal shortcomings withdrawal can cause miscarriage or breaching a condition means losing such as dishonesty or a lack of premature delivery.185 trustworthiness. These widely your liberty. It can also mean being accepted stereotypes about people subjected to other harms associated Also, the correlation between involved with the criminal justice with incarceration. The fact that incarceration and risk of overdose system prevent us, as a society, from detention related to assessing bail is distressingly strong. This is taking a closer look at the systemic or breaching conditions may be particularly clear in the weeks barriers that colour their lives. In the short-term, anywhere from a day to following discharge.186 Of 1,854 moment of signing one’s name on a few months, does not alleviate the reported overdose deaths in BC a set of conditions that they cannot harms of such detentions nor does it between January 2016 and July follow, perfunctory agreements justify the over-use or over-policing of 2017, based on Coroner data publicly are less about the signer actively conditions. available as of April 2018, 18% of disobeying the law and more about people died while under community a human thrust to make choices to Overdose Risk and Lack of Harm corrections supervision (for example, best protect one’s health and safety Reduction they were on probation in the while managing chronic substance Short-term jail stays can mean community) or within 30 days of 187 use. going through viciously painful release from a correctional facility. withdrawal and increasing one’s risk For police and the Crown, imposing One 2016 Toronto-based study of overdosing upon release. Rates stricter conditions than necessary or found that people are at almost 12 and timing of withdrawal range failing to acknowledge an individual’s times greater risk of a fatal overdose according to the kind of substance social circumstances at this stage after they are released from custody being used and the circumstances of means making someone choose compared to the rest of the Ontario the individual. For fast-acting opiates between jail or conditions that set population. (heroin), onset of withdrawal can
182 Omeasoo at para 40. See also Webster at 7. 183 World Health Organization, Clinical Guidelines for withdrawal management and treatment of drug dependence in closed settings. (Geneva: World Health Organization; 2009) at 34, online: http://www.wpro.who.int/publications/docs/ClinicalGuidelines_forweb.pdf?ua=1. 184 Shane Darke, Sarah Larney, & Michael Farrell, “Yes, people can die from opiate withdrawal” (2017) 112:2 Addiction at 199. Notably, while we’ve focused largely on opioid withdrawal, alcohol withdrawal is also common and can be very dangerous, even deadly. For a person with alcohol dependence, symptoms of withdrawal can peak at 24-36 hours, and later symptoms include seizures and delirium tremens, which can be dead- ly. See United States Federal Bureau of Prisons, Detoxification of Chemically Dependent Inmates, Federal Bureau of Prisons Clinical Guidance (Washington DC: Federal Bureau of Prisons, 2014) at 5, online: https://www.bop.gov/resources/pdfs/detoxification.pdf. 185 World Health Organization, at 34. 186 Elizabeth Merrall et al, “Meta-analysis of drug-related deaths soon after release from prison” (2010) 105:9 Addiction at 1545; Ingrid Binswanger, “Release from Prison – A high risk of death for former inmates” (2007) 356:2 N Engl J Med at 157; Farrell M., Marsden J., “Acute risk of drug-re- lated death among newly released prisoners in England and Wales” (2008) 103:2 Addiction at 251; Kariminia, A. et al, “Extreme cause-specific mortality in a cohort of adult prisoners—1988 to 2002: a data linkage study” (2007) 36:2 Int J Epidemiol at 310. 187 Report to the Chief Coroner of British Columbia, BC Coroners Services Death Review Panel: A Review of Illicit Drug Overdoses (April 5, 2018) at 19, online: https://bit.ly/2xE3LTk.
80 Pivot Legal Society Being in a correctional institution is as a result of their short-term can also mean leaving a loved one also an independent driver of both incarceration. alone on the street. People who live HIV and HCV. For example, the on the streets rarely have access HCV infection rate inside federal Any Incarceration Leads to Stigma to secure spaces in which to store institutions188 is between 20 and their belongings. They rely heavily Beyond the significant harm to 50 times higher than in the general on their own ability to protect their the health and security of people population.189 This is no coincidence. possessions, ranging from tents and cycling in and out of our correctional One study focused on Vancouver’s clothing to irreplaceable personal institutions, these short-term bouts Downtown Eastside showed that items to medications. This requires of incarceration and criminalization incarceration doubled the probability them to be near their belongings drive stigma against people, that a person would engage in needle at all times or to rely on friends and decreasing their resources to sharing.190 This risk disproportionately family to watch over them. These reintegrate into communities. impacts women191 and impacts survival tactics are stymied when Indigenous women more than any Of a sample of employers canvassed people are incarcerated even for a 192 other group of people. in Ontario in 2014, close to half of day or two, which can result in losing the respondents reported negative all of their possessions, including Available data on HIV and HCV risks and stigmatizing characterizations their shelter. in correctional institutions often of people with criminal records, focuses on federal facilities, where regardless of the contents. Employers Why We Over-Rely on Conditions people spend two years or more. described people with criminal Data on this issue is less available for Here we provide a cursory review records as “less reliable” and posing provincial correctional institutions. of the philosophy behind reliance a “greater risk/liability” compared to This may be due in part to the on conditions in BC and Canada other workers. The majority, 61%, short length of time that people are more broadly. In doing so, we have stated that they had never knowingly usually detained, ranging from a few focused primarily on area restrictions, hired an individual with a police days to a few months. Provincial better known as red zones. Much of record.194 institutions and local jails, however, the existing literature on conditions relates to red zone conditions and are where people who rely on For people experiencing poverty, how they control people’s access injection drugs are more frequently homelessness, or unemployment, to space. Other conditions, like detained. For example, in 2017, the stigma associated with having prohibitions on drug paraphernalia, Diane Rothon, Medical Director for a police record can create a vicious remain largely unstudied. British Columbia Corrections, told cycle that further ensnares them in the National Observer that about poverty. one-third of prisoners in provincial Stigma institutions are now on some kind Short-Term Jail and Homelessness The overuse of conditions can be of opioid treatment program and traced to stigma against people Short-term incarceration can that there is still “a big unmet need who use substances, people living 193 mean losing income, housing, or for drug treatment in jails.” There in poverty and homelessness, and employment.195 For people we heard is a need for further focus on the people engaging in sex work. experiences of people cycling in and from who are already experiencing out of provincial institutions and homelessness, time in jail can often In 1979, the BC Supreme Court local cells, and on their relative risk mean having all of their possessions upheld red zoning sex workers of contracting HIV and HCV infection confiscated, stolen, or destroyed. It out of Vancouver’s West End due
188 Federal correctional institutions are used to imprison people sentenced to a jail term of two years or more. Provincial institutions detain people prior to being convicted or sentenced, and people sentenced to less than two years in jail. 189 Correctional Service of Canada Needle Exchange Program Working Group, Needle Exchange Programs (Correctional Service of Canada, 1999), at 3. 190 M-J Milloy et al, “Incarceration is Associated with used Syringe Lending Among Active Injection Drug Users with Detectable Plasma HIV-1 RNA: a longitudinal analysis” (2013) 13 BMC Infectious Diseases at 565-575. 191 Peter M Ford et al, “Voluntary Anonymous Linked Study of the Prevalence of HIV Infection and Hepatitis C Among Inmates in a Canadian Feder- al Penitentiary for Women” (1995) 153 CMAJ at 1605-1608. 192 Correctional Service of Canada, Summary of Emerging Findings from the 2007 National Inmate Infectious Diseases and Risk-Behaviour Survey (Correctional Service of Canada, 2010) at 51. 193 Paul Webster, “Saving lives by giving drugs to opioid-addicted prisoners” (National Observer June 23, 2017), online: http://paulcwebster.com/ drug-politics/saving-lives-by-giving-drugs-to-opioid-addicted-prisoners/. 194 John Howard Society, Help Wanted: Reducing the Barriers to Youth With Criminal Records, (Toronto: John Howard Society, 2014), online: http:// johnhoward.on.ca/wp-content/uploads/2014/07/johnhoward-ontario-help-wanted.pdf. 195 See e.g. Deshman & Myers at 10, 59; Sylvestre (2017) at 59; Damon at 27; Standing Senate Committee on Legal and Constitutional Affairs at 147.
PROJECT INCLUSION 81 to stigmatizing fear that allowing the overuse and non-discerning people living vulnerably becomes them to stay in the neighbourhood application of conditions such as red more harmful than benign dislike; it would mean they would “accost zones, which will be discussed in becomes a mechanism of law that any and all males.”196 Very little has detail below. puts lives and safety in danger. changed over the past 40 years. In a 2017 report on the use of red We know that displacing people Stigma also drives historical and zones, perspectives of various legal who are homeless, use substances, contemporary attempts to control or actors (judges, crown, police—the and engage in sex work puts their render those labelled as “homeless,” very group of people empowered to lives at risk. When people who “prostitute,” “addict,” or “drunkard” impose conditions) reflected ongoing are homeless are displaced from invisible. Laws that attempt to societal stigma facing people who their communities, they are put at control the location, behaviour, and rely on public space and people who increased risk of assault and have visibility of people who lack what use substances. decreased access to the services is conventionally understood as they rely upon.199 When people who legitimate employment or housing For example, one justice system use drugs fear criminal sanction, they have a long and complex history. official referred to a local community risk overdosing “alone and far from Despite significant changes in the park as a place where “no pro-social medical help.”200 When sex workers language and nature of these laws, activities…happen.” Characterizing are displaced, their lives are put in there are common threads that can the park as a site of “drug use danger because their displacement be followed through to today’s laws, and drug dealing”197 seemed to means moving their work to more including the use of conditions. justify routinely red zoning people dangerous environments, farther Between the 16th and 18th centuries, from it. Likewise, people talked from support networks and ready criminalizing so-called “vagrants” about the need to keep people help.201 was common and extensive. In out of a neighbouring geographic 16th century England, for example, area because “there are schools, We have seen the chilling the most common punishments daycares…like, it is a community.”198 consequences of such displacement for vagrants included repatriation These stereotypes devalue low- for sex workers play out in to one’s parish;204 essentially being income community members and Vancouver’s Downtown Eastside. displaced and banished, or, in current dismiss the importance of public After sex workers were displaced terms, red-zoned. Such laws proved spaces as places of community, from the rapidly gentrifying West ineffective, merely resulting in the harm reduction, and social inclusion. End of Vancouver between 1975 and passing of “vagrants” from parish This line of thinking promotes a 1985, partially through the imposition to parish. Despite this, we continue false, divisive dichotomy between of red zones on individuals engaged to see the reproduction of these low-income people and the broader in sex work, they were left with few very practices and harms in our community, as though they cannot options but to work in poorly lit contemporary justice system.205 both be valid groups sharing the industrial zones in the Downtown 202 same space. Eastside. There, 67 women One need only look at Canada’s engaged in sex work disappeared history with alcohol and drug These perceptions, held by those from the area and were murdered prohibition to see how stigma, empowered to impose conditions, by convicted serial killer Robert colonization, and racism continue are stark examples of the depth Pickton.203 These are just some of the to impact how our laws treat people of misunderstanding underlying myriad ways in which stigma against who use substances. For example,
196 R v Deuffoure, 1979 CanLII 402 (BCSC) at para 5. 197 Sylvestre (2017) at 55. 198 Sylvestre (2017) at 55. 199 Abbotsford (City) v Shantz, 2015 BCSC 1909 at paras 69, 71, 213, 219 [Shantz]. 200 Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 at para 10 [PHS]. See also Ryan McNeil et al, “Area restrictions, risk, harm and health care access among people who use drugs in Vancouver, Canada: A spatially oriented qualitative study” (2015) 35 Health Place at 70. 201 Canada (Attorney General) v Beford, 2013 SCC 72 at paras 70, 155 [Bedford]. See also K. Shannon et al, “Structural and environmental barriers to condom use negotiation with clients among female sex workers: implications for HIV-prevention strategies and policy” (2009) 99:4 American Journal of Public Health at 659; BDL Marshall et al., “Pathways to HIV risk and vulnerability among lesbian, gay, bisexual, and transgendered methamphetamine users: a multi-cohort gender-based analysis” (2011) 11:1 BMC Public Health at 20. 202 Becki Ross, “Sex and (Evacuation from) the City: The Moral and Legal Regulation of Sex Workers in Vancouver’s West End, 1975-1985” (2010) 13:2 Sexualities at 197-211. 203 Wally T Oppal, CQ, “Forsaken: The Report of the Missing Women Commission of Inquiry, Executive Summary” at 9-11 & “Forsaken: The Report of the Missing Women Commission of Inquiry, Volume 1” Missing Women Commission of Inquiry (19 November 2012) at 36-73. 204 Poor Relief Act 1662, 14 Car 2 c 12, better known as the1662 Settlement and Removal Act. 205 See e.g. Reid at para 83 on “banishment” from community.
82 Pivot Legal Society alcohol prohibition against anyone on other substances, leading to bail, and sentencing. These decisions labelled a “Status Indian” began in the heavy-handed management rely heavily on assessment of the 1868, almost 40 years before alcohol and control of the bodies of people risk posed by a given individual. prohibition was imposed on others in who use substances, especially How we define risk, however, can BC.206 where substance use intersects itself be rooted in stigma, meaning with poverty and racialization. that benign activities like sleeping This includes the imposition and in a doorway, personal activities like policing of conditions such as taking substances, or poverty-related abstinence from alcohol or drugs income generation, like street-based Even as we’ve moved and prohibitions on carrying drug sex work, become seen as inherently away from alcohol paraphernalia. risky or dangerous. The people prohibition, we continue engaged in such “risky” activities are to see how Indigenous Bail Reform and the Move to then labelled as “rabble,” and policing Rabble-Management Policing is directed towards the management people who use alcohol of even their everyday behaviours.210 are over-policed and Tracing stigma against people who over-incarcerated. have long been labelled as societal Rabble-management policing has outsiders and policed throughout We also maintain, to led to equating minor offences, history reveals how the bodies of like breaches of conditions, with an this day, prohibitions certain people continue to be policed actual risk or danger to public safety; on other substances, and criminalized. In 1972, Canada studies of court-imposed conditions leading to the heavy- passed the Bail Reform Act, SC 1970- and breaches suggests this is often a handed management 71-72, c 37, with the goal of curtailing false equivalency.211 the “vast numbers of people [who] and control of the bodies were being unnecessarily detained A 2012 review of BC’s criminal of people who use prior to trial.”208 justice system posited that many substances, especially conditions may be “unrealistic,” yet where substance use What has been observed since then, police aggressively enforce them however, is a failure to adequately 212 intersects with poverty nonetheless. A 2016 update to account for people’s experiences that analysis found that increases in and race. of poverty, racism, colonization, breach offences continue, pointing disability, homelessness, and trauma to the need for a “system-wide in making determinations as to who response” to this trend.213 will get bail and on what terms. This failure increases barriers to being The increase in rabble-management Drug prohibition began in Canada in released on bail for people with policing is reflected in the 1908 with the passage of the Opium mental health concerns or people experiences of Project Inclusion Act, which was deeply informed by who use substances, people living in participants. Many interviewees anti-Chinese racism. It developed poverty or with homelessness, and reported leniency and understanding into a fulsome scheme of prohibition Indigenous people. When members on the part of the probation officers in relation to many substances of these groups are released, many or bail supervisors, while noting and activities throughout the 20th are disproportionately burdened aggressive enforcement, surveillance, century.207 with court-imposed behavioral and harassment by police. 209 Even as we have moved away from conditions. alcohol prohibition, we continue Since bail reform in the 1970s, to see how Indigenous people the criminal justice system has who use alcohol are over-policed gradually moved towards a “rabble- and over-incarcerated. We also management” model of policing, maintain, to this day, prohibitions
206 Susan Boyd, Connie Carter & Donald MacPherson, More Harm than Good: Drug Policy in Canada (Fernwood Publishing, 2016) at 17. 207 Boyd at chapter 3. 208 Deshman & Myers at 4. 209 See Deshman & Myers at 72-79. 210 For more on policing as a means of controlling marginalized populations, see Kevin Fitzpatrick, & Brad Myrstol, “The Jailing of America’s Home- less: Evaluating the Rabble Management Thesis” (2011) 57:2 Crime & Delinquency at 271 and Chesnay (2013). 211 Sylvestre (2017) at 61. 212 Cowper (2012) at 27. 213 Cowper (2012) at 27.
PROJECT INCLUSION 83 Service Providers Speak Out
As part of Project Inclusion research, we conducted an online • “Conditions on release are a huge problem: ‘abstain from survey and heard from over 100 service providers who work drugs and alcohol, et cetera.’ This is an impossible task with people experiencing homelessness, poverty, and violence and results in long periods of incarceration for people with across BC. Some of the people they work with use substances substance use problems.” and some have significant health issues. • “People with addictions have been put on sobriety Service providers had much to tell us about behavioural conditions, which is a setup for failure and has resulted as conditions. The following are excerpts from some of the online such. These clients would have been jailed if it weren’t for survey responses we received. [the] tireless advocacy work of staff.”
ON RED ZONE CONDITIONS • “The sobriety conditions are a huge stumbling block… Indigenous men and women are the most frequently • “Red zoning is a common event in our community. Many profiled.” clients are unable to access health and social services in the downtown core.” • “Sobriety conditions seem ridiculous as people are addicted and can’t just stop because the RCMP tell them to…there is • “Red zoning has a huge impact on our client base—often trauma and all sorts of reasons people use and having these cutting off our participants from community supports they conditions does not help people!” have come to rely on.” • “Sobriety conditions may result in women not calling • “Red zones can prohibit people from accessing health and for help when it is needed. There have been many social services.” circumstances of a lack of understanding by law enforcement regarding the cycle of violence and/or victim • “I do not find red zoning to be beneficial. While I understand blaming language when women report abuse or violence— the logic in throttling access to certain community areas, including sexualized violence.” I see my clients either thwarting the order and ending up in more trouble, or…suddenly…caught in a spiral of risk ON NO-CARRY DRUG PARAPHERNALIA CONDITIONS behaviours due to a disconnect from the services they depend on.” • “Participants who are forbidden from carrying paraphernalia have often not curbed use, but instead are resistant to ON ABSTINENCE CONDITIONS accepting harm reduction supplies on the chance they’ll be randomly stopped.” • “Clients being incarcerated for breach of probation when the breach is alcohol—in such cases incarceration further • “Prohibitions on carrying drug paraphernalia has led to stigmatizes the client and adds to the instability in many situations where clients we are aware are involved in active areas of their lives.” addiction refuse harm reduction supplies.”
WHAT RESULTS FROM called my doctor and said I was and overdosed six times in just one BEHAVIOURAL CONDITIONS: abusing my pain meds and they cut day. AN ONGOING CYCLE OF me off. A week later I was shooting CRIMINALIZATION heroin (396).” Over the last year he had become known in his community as a Sitting on the side of the road, We chatted for almost two hours as “helper,” a “babysitter,” and as watching the police roll by and he talked about his job, his family, his “Narcan Man” for his dedication to request someone’s ID, we waited home, his workplace injury, and the carrying harm reduction supplies and for a bylaw officers to leave so we car accident that almost killed him administering naloxone to those who could continue interviewing people many years ago. He was in a coma are overdosing. Then he picked up his for Project Inclusion. Watching this for a month. Today, he still struggles first criminal charge. He was arrested unfold, we reflected upon how an with “memory concentration, for drug possession while he was individual’s spiral into criminalization cognition, comprehension—all sorts using in a park; it was the first time can happen over many years, or of things,” he said. He was on a pain he’d been in trouble with the law in sometimes, just a matter of months. management plan until his doctor cut over a decade and a half. One man in his thirties told us he him off his medications just over a had been living outside for just over year ago, sending him to the streets With that first charge came a host a year, but before that, he owned to find the opioids he relies on. Since of conditions that, within just a year, his own house. Things changed then, he had lost his home, spent his sent him into a cycle of criminal drastically when, as he described it, “I first Christmas without his children, charges. As he traced the red zone got into heroin. My wife was stealing out on a map, he said because he my painkillers and the pharmacy was picked up on a drug charge he
84 Pivot Legal Society The red zone, he said, is was “automatically red-zoned” from For this man, being isolated from “where all your services the entire downtown, a massive his community of friends triggers are. That’s where your geographic area. From one drug anxiety, which negatively impacts all charge, the red zone summarily cut aspects of his life. “I got bad anxiety, food is, that’s where him off from connections that were, social anxiety now from the accident, your doctors are, that’s and are, essential to his wellness. from being isolated for so long,” he where mental health is, The red zone, he said, is “where all said. your services are. That’s where your that’s where the library Despite the red zone, he kept going is, that’s where your food is, that’s where your doctors are, that’s where mental health is, that’s to the place he knew best, where he harm reduction is.” In where the library is, that’s where your could access help and find friends other words, “That’s harm reduction is.” In other words, during one of the worst years of his where basically any “That’s where basically any kind of life. As a result, he’s now caught in a service for street people or homeless web of criminal convictions that risk kind of service for street dragging him further away from his people or homeless or or low income [people], that’s where it is.” family and the life he wants to return low income [people], to. that’s where it is.” – 396 This red zone, like many others we encountered through Project Inclusion participants, is not tied to a In just one year, he’s specific safety concern or the needs of the victim of any crime. It is a gone from homeowner general area restriction imposed on to spending 62 days in an individual because he uses drugs jail after picking up over and he doesn’t have a home in which a dozen charges. A few to use them in privacy. of those charges are for On top of his red zone, the drug possessing the drugs he charge meant that he was ordered uses to manage his pain. not to carry drug paraphernalia— Notably, however, most clean syringes and other harm reduction equipment—a condition of the charges are for that he ignored entirely because of breaching his red zone. how important it is to him to make He continues to enter sure people have clean gear. He was this red zone to get the also ordered to abstain from using services he needs and drugs, an impossible task for a man managing a complex pain condition because “the only people and addiction without proper medical I know [are] down care. here.” – 396
When asked if he told the judge it would be impossible for him to abstain from using drugs because of His experience exemplifies how his pain and his addiction, he replied, conditions have “exclusionary and “Yeah, they don’t care.” criminalizing effects, expanding the boundaries of the criminal law to In just one year, he’s gone from criminalize mundane behaviours and homeowner to spending 62 days regulate public space primarily in in jail after picking up over a dozen areas of entrenched poverty.”214 charges. A few of those charges are for possessing the drugs he uses to Many other people told us about the manage his pain. Notably, however, never-ending cycle of breaches. One most of the charges are for breaching participant succinctly described the his red zone. He continues to enter end result as “spending more time in this red zone to get the services he jail for breaches than anything to do needs and because “the only people I with the charge to begin with (304).” know [are] down here.”
214 Damon at 22.
PROJECT INCLUSION 85 Other participants expressed can create impossibilities for some of those orders.215 – Defence exasperation at the impact of people that lead them into the counsel, Vancouver behavioural conditions prior to criminal justice system so frequently even finding out if they were being that some have come to refer to it as It is true that some people manage prosecuted for an alleged offence. “life on the installment plan.” to avoid conviction where the Crown They could, after all, end up having or the court determines their breach the charges dropped for their original Conditions create impossible is acceptable or justifiable. That does offence “by the time I get to court situations for people already living not, however, mean that people don’t (208),” as one participant described it. vulnerably. Many participants told still end up spending days in jail. us about the futility of signing Some people had trouble their names on a set of conditions, As one woman explained to us, “I remembering back to their last actual alongside the frustration that there spent five days in jail waiting for the offence, having spent the last two or are no alternatives to agreeing to a judge to come back. I went to the more years accruing 12 or even 18 contract that sets them up for failure. 7-Eleven. I know. I needed tampons breaches. This cycle can go on for As one person put it, “I just know that and my boyfriend wasn’t home. So, years. As one Indigenous participant when I’m signing that paper I’ll be I went to get tampons and that’s explained, “I’ve been on probation for back (28).” what my lawyer had to say in court. nine years of my life…because I just It was embarrassing as hell (439),” been nothing but breaching…drinking Conditions have Harmful, Well- she said. “Yeah, but they found it yeah, I gotta pull it off [have the Hidden Daily Impacts an acceptable breach. So, they let condition lifted] so they can’t breach me go, but I did five days.” Another The impacts of these conditions are me anymore (12).” woman told us that she spent 18 often only considered once someone days in cells for trying to get to the Conditions are sometimes held out appears in court. For many people, hospital with a broken foot (409). as a way of minimizing the use of that comes far too late because the incarceration, but this is far from the harmful impacts are felt from the We explore how conditions intersect reality. In fact, conditions are onerous moment the conditions are imposed with participants’ daily realities in sanctions, often imposed on people and every day of a person’s life while detail below. who have not actually been convicted subject to them. “My whole life has of a crime. It is important to been organized around trying to How Conditions Intersect with remember that the starting point for appease these people (304),” one Homelessness participant said. these individuals is not incarceration; The anxiety in people’s voices it is release into the community. In another recent study, even lawyers is palpable as they describe the challenges of navigating an already For this reason, it is most accurate have expressed frustration at the complicated set of life circumstances to view each condition added to impossible burdens conditions place while additional court-mandated a person’s release as an additional on people’s lives. expectations pile up on them. burden, rather than a reprieve from I look at some of those orders and jail. It is not a better alternative think if I were told to do as many It’s the freaking distress that builds to incarceration, as some people things as these guys were told to up when you got to worry about coming before the courts are led do, and I got arrested every time shit like that, like it’s crazy…Oh it to believe. The bail system, except I was late, I’d be in jail all the time makes me just want to almost just in very specific circumstances, too. It becomes overwhelming the want to die basically—like give up, presumes that people will be numbers of requirements…and right. Yeah it’s fucked up. – 59 released unless their detention you are dealing with a person who can be justified. Justification is We heard from many people probably has a drug or alcohol also required for every condition experiencing homelessness about addiction, who often has a mental imposed. That, however, is not how how hard it was to abide by their illness, who doesn’t have a solid it is experienced by many of the conditions and how often they living environment and being people we heard from. Participants were charged with breaching told to keep more appointments expressed feeling forced to consent them. We were not, however, able then I could handle keeping in a to harsh conditions for fear that the to access quantitative data that week. And they probably don’t alternative would be to remain in might demonstrate the negative have an alarm clock either. So jail—rather than be released on more intersection of having multiple bail how in the world do we expect reasonable conditions. Even in cases or probation conditions and being them to comply with those kinds where a person has been found homeless because police and courts of things?…It would be difficult guilty and sentenced to probation, simply do not track that data. What for the people that are imposing the imposition of these conditions we do know is that almost everyone those orders to live by some
215 Sylvestre at 60.
86 Pivot Legal Society we talked to had experienced homelessness and many participants were trying to manage multiple conditions while living on the streets. This is an impossible task, according to participants. “How can you follow [conditions] if you have no place to stay (96)?” asked one participant.
Another woman shared the circumstances that shape repeated breaches of conditions and missed court appearances.
Because I’m homeless and it makes it really hard to get ready and be up on time to go to probation meetings. Like, I’m on the street. I don’t have an electrical outlet to plug in an alarm clock to get up and be ready at a certain time. Like if I sleep, I’ll sleep right through probably till the next day then realize, oh shit— like fuck—I guess I have warrants again. I’m already late. So basically like— yeah, like a constant breaching. – 313
We heard from people experiencing homelessness how days blend together, hours are lost, and sleep can be a rare but coveted reprieve. The result is that many people are late for court or to mandated appointments with a bail or corrections supervisor or they miss those appointments entirely—the system is not designed for them. The result is that they are repeatedly subject to criminal sanction for being late or failing to appear at an appointment or court date. Curfews, in particular, can perpetuate my door and beat me up…But I We were surprised to hear how homelessness or leave people in couldn’t leave there, because I often people who were homeless dangerous living conditions. One had a curfew. So, I was terrified to or very marginally housed were woman described her untenable be at home, but I had to be there. subject to either curfews or residency living situation while living with a They would turn the power off on requirements. Curfews require curfew that stipulated she had to me. So, I would be sitting in the people to be in their residence or stay in her place of residence alone pitch-black dark by myself from another designated place during overnight, even though her place of 8:30 pm until 6 am and I won’t lie. certain hours, usually overnight. residence was “terrifying” to her. I left many times well before it was Ostensibly, these are used to 6 am. I think one night I didn’t even I was living in rat-infested, shitty, mitigate risk of an accused person come home. I just took a chance. I disgusting, no running water, reoffending. We heard from many couldn’t do it. – 362 no plumbing trailer…And I was participants, however, that they were terrified there. I locked myself off This woman had few alternatives. given curfews, even when they had from the other people living in Living in a small community means no direct relation to the accusations the house, because one of the having limited housing options, they were facing. men there…tried to kick down particularly on a fixed income and
PROJECT INCLUSION 87 especially if you’re looking for night because 12 o’clock is going to community members while trying to housing after having been homeless be my curfew.” earn income during the day. for any period of time. Staying in a homeless shelter “I had a curfew from 6 at night ‘til 9 For her, the curfew made her only can become a risky or impossible in the morning…it was hell (439),” housing option, the one place she proposition if you have a curfew one woman told us. “I couldn’t go could have lived “no questions condition. Keeping one’s bed at anywhere. I couldn’t go bottling. asked,” nearly impossible. Her fear a shelter is a constant challenge We tend to bottle at night, because of bringing police attention to her given that shelters generally provide people don’t bug you so much.” neighbours was so significant that only temporary beds or mats as Instead of binning at night, when she she worried her “neighbours are accommodation and it would be is safe from harassment and threats going to probably kill me and set my challenging for a person to secure a of violence from members of the house on fire (362).” shelter bed over the entire period of public, she was left with the choice time they are subject to a curfew. to bin during the day—an unsafe Curfews may also fail to take into proposition for her—or to go without consideration the survival strategies Curfew conditions further endanger that necessary source of income. of women on the streets who rely on people who are already facing a network of friends and boyfriends barriers to meeting their essential Our interviews revealed that some to keep them safe, and who will risk needs such as shelter and income. people, particularly those impacted jail not to lose those connections. One study participant was ordered to by poverty, homelessness, and “I was always out with my so-called stay at a shelter from which he’d been disability, are ordered to always carry boyfriend, he wouldn’t let me go back banned. We also heard from a person a paper copy of their court conditions [to the shelter], he’d say we’re done if about the shelter calling the police on as a reminder of their obligations. you go back to that place (289a),” one people who were late for their curfew. In principle, it sounds reasonable to woman told us. “So I would stay out “They called [police] for a girl that ask that someone carry a reminder for him.” wasn’t in on time. They called the of their conditions, especially when cops and I was there, the cops were people struggle with memory loss, Courts need to be alive to the waiting and she was only 10 minutes cognitive impairment, and brain realities people are living in and turn late. Like nine o’clock (289b),” one injury. But mandating a person their minds to the harms they may person said. “She had a curfew.” to have their papers with them be causing by either isolating women at all times becomes impossible or putting them in conflict with their When people are camping out, when living homeless. We detail social safety networks through the abiding by a curfew is even more the frequency with which people imposition of behavioural conditions. challenging. The same man who was experiencing homelessness lose their struggling to find housing because of personal possessions due to theft, or Several participants shared that they his curfew also described to us how have their belongings discarded by struggled to find housing because he navigated his conditions while city staff, police, or members of the of a curfew condition. As one man being homeless in the streets. public in Part 1.1 explained, the already arduous challenge of finding housing while I went to jail for three months It’s worth noting that police do not homeless is compounded when one and I got out, a year of curfew, rely on people’s papers to monitor also risks being falsely reported to right, and I was homeless. I told their conditions. Police in BC share police by a roommate for breaching my probation officer this. I was a common database used by every curfew. “I don’t really want to rent a phoning the police station every policing agency in the province room because maybe the people that day to say this is where I am called the Police Records Information don’t like me and answer the door staying and I had so much anxiety, Management Environment (PRIME- and [say] ‘he is not here’. I have had right, and it was getting bad. I was BC). Police can use that database to that happen twice (59).” having seizures at the time too, access a person’s list of conditions right, because of all the stress. anytime they’re at work. While Knowing that the police may come by And so I am like freaking out all we discuss some of the problems to check someone’s curfew can make day, like I don’t want to go back to related to a lack of timely updates people undesirable as roommates. jail, so then it’s like curfew and the to the database below, the fact “I can’t go and find a room to rent crimes weren’t even committed in that such a database is readily because I feel like I have to tell the nighttime, right. – 59 available to any police officer the people that the cops could be working in BC underscores the showing up (59),” he told us. “And it’s For other participants, a curfew redundancy of expecting people like, who is going to want to rent to condition meant either going without navigating homelessness to hold someone where the cops could be income or putting themselves at onto the pieces of paper listing showing up anywhere before 12 at greater risk of harassment from other their conditions. That they also risk criminal sanction for losing them,
88 Pivot Legal Society especially when they and police are building a reasonably robust system we heard from said they breached aware their behavioural conditions to connect the people who use drugs their paraphernalia conditions, are accessible through PRIME-BC, with harm reduction supplies and preferring to protect themselves seems to run contrary to serving the other harm reduction services. Yet against infections such as HIV or interests of justice. on a daily basis, our criminal justice HCV, even at the risk of going to jail system is explicitly prohibiting the for breaching. One woman we spoke with told us people who need them most from about spending a week in jail because carrying harm reduction supplies and One man laid bare the inherent she failed to produce the papers accessing harm reduction services. conflict in these types of conditions. listing her conditions. “Seven days, As a result, those who make the I’ve had conditions like ‘no and I had no methadone (416),” choice to follow public health advice paraphernalia’ and things like that, she told us. “I didn’t have my down and to protect themselves and where harm reduction becomes [heroin] on me, it was torture.” others from infection or overdose risk an issue. I actually worked my She was aware, like other study criminal sanctions. participants, that her conditions way around that last one because were in the police database, which Millions of dollars are spent by when they said, ‘no paraphernalia,’ made her incarceration seem even our ministries of health on harm I looked at the judge in the more ludicrous and unnecessary, reduction supplies (namely syringes, courtroom and said, ‘What about particularly since she knows she clean water, and pipes) to reduce harm reduction supplies?’ He said, struggles with memory loss due to risk and spread of HIV and HCV, to ‘Well, you got me there.’ He put health issues. improve health outcomes, and to something down on paper. It was reduce overall risks to public health. ‘No paraphernalia other than harm “What the hell is with this ‘carrying We’ve known for decades that these reduction supplies.’ Which, what is your papers’ business? You’re in the are some of the most effective and paraphernalia but harm reduction computer,” she said. When she failed cost-efficient ways to provide basic supplies, right? I found a loophole, to produce her papers to the police, health care and to improve public I guess. – 74 the officer immediately used PRIME- health for entire communities.217 And We can’t rely on people like him to BC to look up her conditions. “That’s yet courts can make accessing health fight the system alone, especially what he did right away,” she said. “He care illegal. told me what my conditions were… when the human and societal costs and I’m like, ‘Okay, that’s good that In 2012, BC’s Ministry of Health are so high. you know, then I don’t have to worry created a vision that “the next The people subject to these about it,’ and he’s like ‘No, you don’t generation of British Columbians will conditions know what they need have your papers, that means you’re grow up AIDS free.”218 Updates on to do to keep themselves and their going to jail.’ And I’m like ‘Oh my progress, contained in From Hope to friends safe. Despite the risk of goodness.’” Health progress reports, continue to criminal sanction, they engage in support the vision of a future AIDS- harm reduction every day. “I have [a] free generation.219 This aspirational PARAPHERNALIA PROHIBITIONS: ‘no paraphernalia’ clause and I don’t vision, however, will surely fail ALL HARM, NO GOOD think that it matters. I would rather if BC’s justice system continues You must not possess drug help my friends be safe (362),” one to criminalize some of the most paraphernalia including but not participant told us. effective health care interventions limited to pipes, rolling papers available to people at risk of and syringes. – Provincial Court Another person passionately shared contracting or spreading HIV. of British Columbia, “Bail Picklist,” their commitment to reducing the 216 harms of using substances, even May 1, 2017. People brought into the court system if they risk criminal sanction. “If I’m know that courts are asking them to In BC, we have shown a strong going to fucking use drugs, I’m not sacrifice their health in order to follow commitment to public health by just going to ignore fucking using these conditions. Almost everyone
216 Picklists are lists of standardized terms used to craft court-imposed conditions. Provincial Court of British Columbia, “Bail Orders Picklist”, May 1, 2017, online: http://www.provincialcourt.bc.ca/types-of-cases/criminal-and-youth/links#Q7. 217 See Abu S Abdul-Quader et al, “Effectiveness of Structural-Level Needle/Syringe Programs to Reduce HCV and HIV Infection Among People Who Inject Drugs: A Systematic Review” (2013) 17:9 Aids and Behavior 2878; N. Palmateer, et al, “Evidence for the effectiveness of sterile injecting equipment provision in preventing hepatitis C and human immunodeficiency virus transmission among injecting drug users: A review of reviews” (2010) 105:5 Addiction 844; A. Wodak & A. Cooney, “Effectiveness of sterile needle and syringe programs” (2005) 16:1 International Journal of Drug Policy at 31; World Health Organization, WHO, UNODC, UNAIDS Technical Guide for countries to set targets for universal access to HIV prevention, treatment and care for injecting drug user (World Health Organization, 2009). 218 British Columbia Ministry of Health, From Hope to Health: Towards an AIDS-free Generation, (British Columbia Ministry of Health, 2012) at 2. 219 See e.g. British Columbia Ministry of Health, From Hope to Health: Towards an AIDS-free Generation, 2015-2016 Progress Report, (British Co- lumbia Ministry of Health, 2016).
PROJECT INCLUSION 89 Between October 1, clean shit, just sneaking around and Rather than not accessing clean 2014 and September using whatever I can to get away supplies, some people told with…I’m going to fucking get clean us, regretfully, that they found 30, 2017 alone, BC shit and have it on me all the time themselves disposing of their courts imposed (349),” they said. “Whether the cops syringes less safely out of fear that prohibitions on carrying like it or not, I don’t care. I mean it’s they’d get stopped, searched, and paraphernalia (in bail stupid; like, fucking, they breached charged. One participant told us how and probation) 3,868 me for having a needle on me that’s he hastily disposed of their harm clean…I’m an addict, I’m going to reduction supplies to avoid charges times on 2,505 different use, I’m going to relapse, I’m going for carrying them. “Pop them in the people—meaning some to have slips, you know, whether I’m bush whatever right, was that a cop? individuals faced this trying or not, it’s going to happen, so Chuck. Keep walking, just leave it condition multiple times I’d rather do it where it’s safe.” there (59),” he said. “I have probably over that time period. done that a few times, I am sorry to One of the primary stated goals of say.” imposing conditions on people is for the protection of public safety. No one wants to find improperly Prohibiting people from carrying discarded syringes, including the harm reduction supplies does the people who use syringes themselves. opposite. It is clear that people who People do not set out to transmit regularly use substances are not disease or to harm another person. compelled or reasonably able to stop Court conditions that increase the using a substance simply because of risk of finding improperly discarded a court condition. Asking them to do harm reduction equipment fail to so in a dangerous way does nothing benefit anyone. to promote their safety or that of the public. Anti-paraphernalia conditions remain so common that they are included in a 2017 Provincial Court document standardizing conditions, making it No one wants to find easier for judges to impose them by picking them off a set list.220 Based improperly discarded on data accessed through a Freedom syringes, including the of Information request, between people who use syringes October 1, 2014 and September themselves. People do 30, 2017 alone, BC courts imposed not set out to transmit prohibitions on carrying paraphernalia (in bail and probation) 3,868 times disease or to harm on 2,505 different people—meaning another person. Court some individuals faced this condition conditions that increase multiple times over that time period. the risk of finding Courts do not, however, track the improperly discarded specific details of the breach charges harm reduction laid against people. Therefore, it equipment fail to benefit was impossible for us to assess how anyone. many of those people were actually charged and convicted for possessing life-saving health supplies. As we learned from the people we Anti-paraphernalia conditions create interviewed, much of the harm is an atmosphere of fear that causes already done even if people are not people to make decisions that have arrested for breaching their condition. negative consequences for public health and safety beyond the risk of sharing or reusing a syringe.
220 Provincial Court of British Columbia, “Bail Orders Picklist” May 1, 2017 & Provincial Court of British Columbia, “Probation Orders Picklist” May 1, 2017, online: http://www.provincialcourt. bc.ca/types-of-cases/criminal-and-youth/links#Q7.
90 Pivot Legal Society ABSTINENCE CONDITIONS SET housing, and other supports, as well Many participants told us about PEOPLE UP FOR FAILURE as histories of systemically-driven the added stress that abstinence You must not possess or consume trauma, contribute to the reasons conditions place on their lives when alcohol, drugs or any other why people rely on substances. they’re already struggling. “It doesn’t intoxicating substance, except Addiction is not a question of cure me…it’s hindering me (208).” willpower or moral conviction. It is a in accordance with a medical To many people we spoke with, prescription. – Provincial Court of health and social issue, and one that is regularly criminalized. One way abstinence conditions felt like an British Columbia, “Bail Picklist,” exercise in futility in their failure to May 1, 2017.221 in which addiction is criminalized through the justice system is the recognize the realities of their lives Not all people who use substances imposition of abstinence conditions and the role that drugs or alcohol have addictions. Not all people who on people living with addictions. play in them. “I’m not perfect (349),” meet the medical criteria for having one participant said, explaining the an addiction identify as “addicts” or People we heard from are regularly relapsing nature of her addiction, people with disabilities. Medicalizing unable to abide by abstinence which has shaped her life for almost all substance users as people with conditions. Their failure to abide is 20 years. “I’m not just going to walk addictions is itself stigmatizing. not a question of disrespect for the away out of my life and fucking never However, there are people, including court system; it is a reality of living look back it at it…I’ve had drugs in my people we heard from, who with a serious health condition, system for the last 18 years.” repeatedly find themselves tangled in often while living without housing or necessary health care. Abstinence conditions are at odds the criminal justice system because with the medical science relating addiction, a legally recognized Almost everyone we asked told us to relapse. They fail to properly 222 disability, is criminalized. that abstinence conditions do not consider not only the dangers and Behavioural conditions are a routine help to discourage substance use. hardship associated with withdrawal means through which people with “How can you make conditions from drugs and alcohol,225 but also addictions are penalized, stigmatized, based off of a disease? I don’t get the legitimate reasons why people and tethered to the criminal justice that. That’s not fathomable (45 focus use and rely on substances in their system. group),” one participant said. “It daily lives. People who have used In medical terms, addiction is doesn’t make any sense. You have a substances most of their lives know a chronic, relapsing, remitting disease, but [the courts are] going to that using drugs or alcohol is no disease.223 A cornerstone of addiction make it so that if you have a disease, longer about being “drunk” or “high”; is the fact that a person will continue you’re fucked.” it is a way to feel normal, not sick, to use the substance to which they and to be able to get through the In part, abstinence conditions do day. It’s not about partying, but about are addicted in spite of a host of not curtail use because they fail to 224 functioning. As one participant put it, negative consequences. Indeed, address the underlying reasons for people with addictions who lack “I’m an addict; I’m sober even when use in the first place. As one person I’m high (74).” access to safe substances are at an told us, “They can’t stop me from… unprecedented risk of dying of an can’t stop me from being who I For people living with addictions, overdose. Yet the pull of substance am. They don’t understand the abstinence conditions ask them use remains strong enough that even circumstances behind the reason to do the impossible. Even where the fear of death does not necessarily that I am who I am, and I do what I do conditions are not technically stop someone from using. This (155).” impossible to follow, they may is contextualized by the social be functionally impossible. The factors that drive or exacerbate use: Provincial Court of Alberta explained Inadequacy of income assistance,
221 Provincial Court of British Columbia, “Bail Orders Picklist” May 1, 2017, online: http://www.provincialcourt.bc.ca/types-of-cases/crimi- nal-and-youth/links#Q7. 222 This cycle has been identified by officials within the law enforcement sphere. For example, in 2007 a member of the Canadian Association of Chiefs of Police is in noted in the Standing Senate Committee on Legal and Constitutional Affairs report stating that “requiring that alcoholic individuals abstain from alcohol as a condition of release from detention is likely to result in a breach of that condition and further interaction with the criminal justice system.” See Standing Senate Committee on Legal and Constitutional Affairs at 140. 223 Zhiling Zou et al, “Definition of Substance and Non-substance Addiction” In: Zhang X., Shi J., Tao R. (eds) Substance and Non-substance Addic- tion. Advances in Experimental Medicine and Biology, vol 1010. (Singapore: Springer, 2017). See also American Psychiatric Association, Diagnos- tic and statistical manual of mental disorders, 5th edn. (Washington, DC: The American Psychiatric Association, 2013). 224 Terry Robinson & Kent Berridge, “Addiction” (2003) 54 Annual Review Of Psychology at 25. 225 Thomas R Kosten & Tony P. George, “The Neurobiology of Opioid Dependence: Implications for Treatment” (2002) 1:1 Science & Practice Per- spectives at 13 and World Health Organization, Clinical Guidelines for withdrawal management and treatment of drug dependence in closed settings. (Geneva: World Health Organization; 2009) at 34, online: http://www.wpro.who.int/publications/docs/ClinicalGuidelines_forweb. pdf?ua.
PROJECT INCLUSION 91 such conditions in Omeasso, Criminal Code, judges are required of such conditions. Between October comparing abstinence conditions to take “the circumstances of 1, 2014 and September 30, 2017, being imposed on a person living aboriginal offenders” into account 31,914 abstinence conditions were with alcoholism to impossible in sentencing, especially to look at imposed across BC in the context financial obligations: “An example “all available sanctions other than of bail and probation, on 21,413 of that would be to release the imprisonment that are reasonable in different people, meaning some impecunious accused on $1 million the circumstances”. In R. v. Gladue, people were subject to that condition cash bail on the basis that he could [1999], the Supreme Court of Canada more than once during that time buy a lottery ticket and potentially (SCC) laid out principles for courts frame.230 win enough money to post that cash to employ in considering alternative bail.”226 sentencing options, known as the Far from assisting people to stop ‘Gladue Factors’ and directed the using drugs or alcohol, some people Alcohol or drug-related abstinence courts to consider broad systemic noted that the pressure of conditions, conditions drove extensive and background factors that affect abstinence in particular, increased involvement in the criminal justice Indigenous people generally and their need for a coping mechanism. system for Indigenous study the offender in particular. Despite “The pressure makes you want to participants. It was not possible, these instructions, in 2012, the SCC drink, drink, drink (278),” one person based on data obtained from Court in Ipeelee, Lebel J. noted that the told us. Services BC through a freedom of “cautious optimism [in Gladue] has Regarding alcohol in particular, information request, to determine not been borne out. In fact, statistics expecting someone who drinks whether or not Indigenous people indicate that the overrepresentation heavily to become abstinent are overwhelmingly impacted by and alienation of Aboriginal peoples can be life-threatening, causing abstinence conditions; however, in the criminal justice system has severe (grand mal) seizures, high nearly half of the Indigenous people only worsened.”228 In Ipeelee, the SCC blood pressure, delusions, and we heard from reported having reaffirmed the importance ofGladue , hallucinations.231 The “kindling been given an abstinence condition and confirmed that it applies in all 227 phenomenon” is particularly relevant, at some point. Based on what contexts. we heard, abstinence conditions and refers to the fact that that were often imposed even where Within the scope of the participants repeated withdrawal for those who the offence for which they’d been in this report, the imposition of are alcohol dependent, can not only charged was not alcohol- or drug- abstinence conditions on Indigenous intensify the symptoms, but can also related. participants and the negative contribute to alcohol-related long- impact of such conditions on term brain damage and cognitive 232 What is clear from our interviews those participants was notable, impairment. is that abstinence conditions despite existing legal requirements Further, omitting an abstinence do not properly account for the that courts consider the unique condition from a court order generational impacts of trauma, circumstances of Indigenous people where the individual is not able colonization, poverty, and addiction. coming before the Court.229 They appear to be at odds with to comply with it “does not place efforts towards reconciliation and Despite these concerns, data from the community in any greater remedying the overrepresentation Court Services BC, obtained through danger,” because the person will use 233 of Indigenous people in our jails and a Freedom of Information request, substances regardless. Imposing courts. In Section 718.2(e) of the reflects the ongoing and rampant use such conditions, however, puts the
226 Omeasso at para 33. 227 This is also reflected in data from other jurisdictions in Canada, see Deshman & Myers at 75-76. 228 R v Ipeelee, 2012 SCC 13 at para 62 [Ipeelee]. 229 R v Gladue, [1999] 1 S.C.R. 688 [Gladue], and Ipeelee. 230 A percentage of conditions reflected in this quantitative data are imposed on people who are casual substance users – such as the young person drinking too much and fighting outside a bar on Friday night. Further, some may be reasonable and necessary where a person is in a position to stop using substances and where their substance use is integral to their offence – such as a person who drinks occasionally to excess and is violent towards their partner when intoxicated. It is impossible to determine the circumstances of all people subject to these conditions based on the data available from Court Services BC. We can however see that these conditions are in common usage and we know from our interview data that they are imposed on people with addictions, many people are subject to more than one abstinence condition, and some of those people are subject to criminal sanction for breaching such conditions. 231 Norman Miller, M.D. & Steven Kipnis, M.D., Detoxification and Substance Abuse Treatment: A treatment improvement protocol TIP 45 (Rockville: Substance Abuse and Mental Health Services Administration Center for Substance Abuse Treatment, 2006) at 52-53. 232 World Health Organization, Clinical Guidelines for withdrawal management and treatment of drug dependence in closed settings. (Geneva: World Health Organization; 2009) at 34, online: http://www.wpro.who.int/publications/docs/ClinicalGuidelines_forweb.pdf?ua=1. 233 Omeasoo at para 39.
92 Pivot Legal Society person at risk of criminal sanction if the ongoing opioid crisis and the whether abstinence conditions they take a drink or a hit.234 It can also dangers of using street drugs alone. actually lead to rehabilitation, and have the effect of driving substance clear and compelling evidence use further underground for fear of The courts are not a place of exists that, for some people, they penal sanction or police detection, a treatment. We will always hear the perpetuate a cycle of harm and particularly dangerous prospect given occasional success story resulting criminalization that can last years or from bail or probation conditions; even decades. however, there is no way to know
234 See Deshman & Myers at 58.
In Focus: How Abstinence Conditions Impact Lives
When we met for our interview, the day he has been convicted of breaching his an abstinence condition. It has not, was new; it was only 9am. But for the conditions 52 times. however, stopped police from regularly man we interviewed, the past number detaining him overnight in the drunk His abstinence conditions have put him of hours had already been an ordeal. His tank. These criminal justice responses in daily contact with the criminal justice face is swollen, and a prominent bruise to his alcohol use do not protect him; system. He is frustratingly aware that the on his cheekbone was fresh and raw. The rather, they subject him to harassment criminalization of his substance use is the injuries were from last night’s trip to the and violence by police without providing primary reason for that. drunk tank. He told us he sustained his him the health and social services he injuries when police dropped him on his “If I was sober, I would never have a needs. face while his hands were cuffed behind record,” he says. “That’s what everybody Other Project Inclusion participants his back. tells me. That’s what all the RCMP tell shared similar experiences of how me, and the lawyers, and the judge and He’s an easy target for police. He was abstinence conditions are impossible for everything, because I’m a well-educated homeless and living in the bush at the them to maintain. “It’s all just conditions and smart and respectful person. But time of our interview, relying on public to set me up to fail to put me in jail yeah, just the alcohol, that gets me.” space for his basic needs. That means longer (28),” one person told us. “Every police surveil him daily, regularly pick him Even when he was a teenager, he knew single time you get released on bail, they up, and put him in the drunk tank. His that an abstinence condition was as say stay away from people in the drug history with abstinence conditions has good as a one-way ticket back to jail. scene, no alcohol use,” he added. But shaped his everyday life, leaving him with It was only after he’d been repeatedly those conditions don’t work for a person an extensive criminal record and landing criminalized for years due to his alcohol who, as he described it, is “coming from him in custody more often than he could use that the court would consider an alcoholic family (28).” have ever imagined. alternatives.235 Another participant was frank about the Like others who have used substances I told the judge—when I was like a futility of their abstinence conditions. most of their lives, using alcohol is teenager and right now, and that’s “I was drinking anyways (12),” he said. a means by which this man can feel why they don’t put those conditions “Yeah, and then I got 18 breaches…[of] functional throughout the day. “I had to on me no more. When I was a not drinking. Yeah, 18 breaches on that, have a couple of drinks before I came in teenager I was like, I can’t—I told him and so they decided to send me there [to here (102),” he explained, “to just feel I can’t comply with an abstain-from- counselling].” better.” alcohol condition. And they go like, Abstinence conditions are often ‘Oh, we’re putting it on you anyway.’ He’s frustrated at how his abstinence impossible for people to abide by, You know what—it’s just setting me conditions are at odds with the realities particularly for people who have been up for failure. And then like two days of his life as a person living with an using substances for most of their lives. later, I’m back in. And that’s why I’ve alcohol addiction that he’s had since he Abstinence conditions do nothing to got such a long record. It’s all mostly was a child. address the fact that substance use is, breaches. I got a couple of assaults for people living with few other supports, “The only reason I got all those breaches and stuff in there. a tool for survival and a means by which is because I was put [on] no-drinking Now, with a lengthy criminal record, he is to maintain daily functioning, especially stipulations…and I was alcoholic since—I well known to the court and local judges in the face of inadequate income was alcoholic since I was like eight who have decided to stop imposing assistance, housing, health supports, because my parents are, and I used to abstinence conditions on him. This, and social services. steal their beer,” he explains. He reports at least, is some reprieve from facing further criminal convictions for breaching
235 Data from another Canadian jurisdiction also indicates a positive correlation between the imposition of abstinence conditions and subsequent breach charges. See John Howard Society (2013) at 12.
PROJECT INCLUSION 93 As an Alternative to Abstinence Conditions, Harm Reduction Works
Community-based, non-coercive interventions show positive results when compared to the impacts of impossible-to-maintain abstinence conditions on the lives of the people on whom they are imposed. Whether harm reduction shows up in the form of access to needle exchanges,236 methadone,237 prescription heroin or hydromorphone,238 or access to safe and managed alcohol,239 the positive health outcomes are extensive and well documented. Basic supports such as income assistance and housing alongside health care and especially peer-driven services, must be made more available to people across BC rather than relying on the criminal justice system to manage people living with the impacts of homelessness and complex substance use issues.
These interventions need not be medicalized or institutionalized. One of us spent some time with members of a drinkers’ lounge (Lounge) and a managed alcohol program (MAP). Both were groups comprised of people who have chronically used alcohol most of their lives, and whose circumstances, including intersections of poverty and criminalization, have led them to use non-beverage alcohol. They represent a group of people who have been criminalized for using a substance, alcohol, that is legal in alcohols, such as hand sanitizer, A mother told us how the Lounge most circumstances in Canada and rubbing alcohol, or mouthwash, for improved things dramatically for her they need safe alternatives to this safer alternatives. One participant son. “My son got to live two years criminalization. In the MAP, people told us that 80% of Lounge members longer (91 focus group),” she said. He with entrenched relationships to had quit drinking non-beverage was drinking rubbing alcohol before alcohol are provided a controlled alcohol because they now had access he found the Lounge; his mother had dose of alcohol every few hours to a safer alternative. He told us, spent years trying to help him curb through a service provider. “We’re saving lives here (91 focus his addiction on her own, sinking group).” $70,000 into rehabilitation attempts At the Lounge, a peer-centred group, that were unsuccessful. The Lounge people trade in their non-beverage
236 World Health Organization, Effectiveness of sterile needle and syringe programming in reducing HIV/AIDS among injecting drug users (Geneva: World Health Organization, 2004); Evan Wood E et al, “Factors associated with persistent high-risk syringe sharing in the presence of an estab- lished needle exchange programme” (2002) 16:6 AIDS at 941. 237 B.A. Hilton, et al, “Harm reduction theories and strategies for control of human immunodeficiency virus: a review of the literature” (2001) 33:3 Journal of Advanced Nursing at 357; Lianping Ti L et al, “The impact of methadone maintenance therapy on access to regular physician care regarding hepatitis C among people who inject drugs” (2018) PlosONE, online: https://www.ncbi.nlm.nih.gov/pubmed/29579073. 238 Nick Bansback, Daphne Guh & Eugenia Oviedo-Joekes, “Cost-effectiveness of hydromorphone for severe opioid use disorder: findings from the SALOME randomized clinical trial” (2018) 113:7 Addiction at 1264. 239 Christopher Fairgrieve C et al, “Nontraditional Alcohol and Opioid Agonist Treatment Interventions” (2018) 102:4 Med Clin North Am at 683.
94 Pivot Legal Society gave him two good years. “He just In some municipalities, there appears basis for some offences, particularly passed away in July.” to be a phased red zone process, with drug offences,242 without specific people being exiled from expanding analysis of the alleged offence, the Her friend piped in, “We miss him. areas of the city. circumstances of the accused, and Yes, we do.” any actual public safety concerns.243 Red zones differ greatly from “no-go” Overwhelmingly, participants told conditions. Red zones have a much Actors within the criminal law us that harm reduction programs broader impact on a person’s life, system, including judges, defence like these create a loving and caring health, and safety. A “no-go” may be attorneys and prosecutors, give community in which people can imposed to prohibit a person from various rationales for imposing share their stories, relate to one attending a specific location; for red zone conditions. Typically, another, and provide support without example, a “no-go” condition may proponents state that red zones: facing criminal consequences be applied to the store from which a • prevent crime and recidivism; or police harassment. They save person shoplifted, or to ensure the people’s lives, decrease their criminal safety of people who’ve experienced • are issued in certain hotspots tied justice involvement, improve their violence by prohibiting a person from to drug supply; health, and foster self-determination visiting someone’s home or a child’s • are issued for rehabilitative 240 in participants. school. purposes; When such programs are available, • are issued for policing purposes; it seems untenable that we would and choose instead to punish and Justice system actors • are issued to protect the public incarcerate. imposing these interest.244 RED ZONES EXILE PEOPLE FROM conditions often focus Justice system actors imposing LIFE’S NECESSITIES on the desire to stop these conditions often focus on the “The red zone makes poor people the drug flow into a desire to stop the drug flow into a feel poorer.”241 geographic area or to geographic area or to stop “non- stop “non-addicted” addicted” dealers from entering an area.245 These rationales, however, Geographic area restrictions, dealers from entering an colloquially known as red zones, are do not align with the lived experience among the most well-researched area. These rationales, of the people we met. We could not behavioural conditions. A geographic however, do not identify any correlation to a decrease area restriction, like all court- and align with the lived in drug availability over time, and police-imposed conditions, is experience of the people certainly found no correlation to a decrease in overdoses and drug use- supposed to be linked to the we met. specific circumstances of an alleged related harms. offender and offence. But in many communities we visited, Project The BC Provincial Court has Inclusion participants indicated it was “No-go” conditions, while at times previously found that the use of the other way around. Rather than problematic, can be better tailored red zones does not reduce drug tailoring a red zone to an alleged to address specifics of the alleged trafficking in a given area, or in a city offender or offence, the red zone is offence, the circumstances of the more broadly. It may, however, mean a predetermined geographic area accused, and the safety needs of that new dealers take over when from which people get banned when people impacted by the accused’s street-level traffickers, who are often charged with an offence, particularly actions. Red zones, by contrast, people living with multiple barriers, poverty- or drug-related offences. exclude people from large swaths including mental health and addiction 246 Many people we interviewed could of their communities. Based on our issues, are red-zoned. draw the red zone on a map or list the data and other studies, red zones Given the toxic, unregulated drug streets that comprise its boundaries. are often imposed on a more global supply on our streets, knowing your
240 See Kate Vallance et al, “Do managed alcohol programs change patterns of alcohol consumption and reduce related harm? A pilot study” (2016) 13:13 Harm Reduction Journal. 241 Witness testimony in R v Reid, 1999 BCPC 12 at para 12. 242 See Sylvestre (2017) at 4, 53% of bail orders issued for drug offences included a red zone. 243 See also Reid at para 48. 244 Sylvestre (2017) at 54. 245 Sylvestre (2017) at 54. 246 Reid at paras 21, 23, 25, 45, 50, 82.
PROJECT INCLUSION 95 dealer can be an important safety Red Zones Isolate People from zones are set up, basically, to make measure. Red zones, while not Essential Services people to go jail.” fulfilling the public safety purpose of Previously in this chapter, we reducing drug trafficking, reduce the detailed how behavioural conditions Red Zones Increase Isolation ability of substance users to protect can drive people into a cycle of As we travelled across the province themselves from overdose by buying criminalization. Red zones are an to conduct research for Project from a known source. example of this phenomenon, Inclusion, we visited spaces where We cannot overstate the impact particularly in instances where the people created community, often on of geographic area restrictions on person subjected to a red zone is sidewalks, in parks, and near service the lives and wellness of Project navigating intersecting barriers like providers. We heard about the Inclusion participants. Red zones can homelessness, poverty, substance devastation they experience when ban people from accessing shelters use, and/or mental health issues. In community falls away, for people and low-barrier housing options, those cases, red zones force them to living with few resources, tenuous health care and overdose prevention choose between compliance with the support systems, and the impacts services, food, opportunities for order and meeting basic health and of trauma, a rising sense of isolation income generation, and community— safety needs when the red zone cuts can mark a breaking point. For the in other words, the necessities of life. them off from accessing the services people we heard from, red zones and community connections that exile people from their communities they rely upon.247 Red Zones can Cause Homelessness and the vital social connections that help keep them well. For people who have few options One participant explained it this for housing, red zones can create way: “Being homeless and then One woman made a point housing insecurity and homelessness red zone[d] from downtown, I had of countering the popular as they can drive people already living nowhere to go to sleep. I couldn’t misconception that forcing a person vulnerably closer to the margins and go eat because where they go eat out of the “wrong crowd” or a “tough farther away from the only supports down here at [service provider], neighbourhood” can be the tough they have. everything is downtown. So, that love they need to move somewhere was a pretty rough two years for me safer and make better friends. For this One man we spoke with lost his (266).” When we asked if it affected woman and those she holds dear, red housing after he was red-zoned from his ability to access harm reduction zones that keep them away from the it due to a drug raid. He told us about supplies, he replied, “Yeah. I got people that mean the most to them how the red zone deepened his really sick because of my HIV, I only create more loss and fear. vulnerability. ended up in hospital twice because… they wouldn’t even let me go to see “I got caught once in my red zone Well, I had nowhere else I could my doctor because my doctor is and I pleaded with [the police], go stay, so I had to hit the streets. downtown and [they] told me if I had like come on you guys, I have got Like, all my friends, in that to go to see my doctor for anything nowhere to go…I have no place to go, sense, were living actually in the I’d have to go to emergency.” I have no family out here, and…I’m apartment building as well. So, fucked, basically (427),” she told us. there was nowhere for me to go, Another participant told us how But she didn’t feel her concerns were couch surf, or sleep, so I had to red zones feel like traps because, taken seriously. For her, packing up tent it. – 459a for people in their community, and leaving the only community to it’s impossible not to violate the which she feels a sense of belonging Not only did the red zone cause condition because the red zone is would be disastrous. “They’re telling him to lose his housing, it also cut the only place where they can access me…Oh, there is lot of places you him off from his primary social food. He told us how the “big red can go, like get out of the city, right…I network, where he would otherwise zone” in his community contains shook my head and said, that’s not have turned in a time of crisis for food banks and other essential possible…I’m terrified to go anywhere emergency housing. Without access services people need to access daily else…I don’t know anybody…it’s just to that community, he turned to for survival. “I mean, how are you I’ve heard so many horror stories… living outdoors in a tent. Other supposed to go and have lunch if anywhere else outside this area.” study participants shared similar you’re not allowed to go in there experiences of being red-zoned from (28)?” he asked, adding he’s seen It is possible that red zoning could their communities of support. police sitting outside food lineups benefit a small minority of people, waiting for people with red zones. such as people who are otherwise well-supported and who are not With all of this stacked against him, it deeply enmeshed in the community seemed to this participant that “red from which they are being red-
247 See also Reid at paras 9, 51, 59.
96 Pivot Legal Society zoned.248 What red zones seem to red zone covered. He said he had to for the rights of others and should do more often, however, is isolate move out of the town completely. not be tolerated.”250 people from the few supports and services they have. The effect of It is impossible to know how often These experiences are also reflected this can be to “inhibit, not help” the people are effectively banished in academic literature. As Herbert and successful future of the individual.249 from their communities due to the Beckett note: Police, Crown, and courts imposing challenges in data tracking, but The banished repeatedly such conditions are turning a blind we know such all-encompassing emphasize the challenges they eye to the already highly limited red zones are used on occasion, face in maintaining their social set of resources available to people leaving people without support or networks, in accessing needed experiencing poverty, homelessness, community. The man whose red zone services, and in ensuring their and substance use. forced him to move out of town was only able to vary his red zone upon economic and physical security. In small communities, red zones can promising to live under house arrest It is no simple matter to quit span such a broad geographic area at the homeless shelter. the places to which they are 251 that the experience of adhering to complexly and deeply attached. one is tantamount to banishment. Banishment orders leave people The isolation caused by red zones “The whole town (108),” one without support and community, and can create dangerous conditions for participant said, of the area that his they push people in need of services from one community to another in a people. We heard from some people, way that “violates basic consideration primarily women, that being near
248 See Reid at paras 26, 76. 249 Reid at para 83. 250 Reid at para 83. 251 Steve Herbert and Katherine Beckett, “‘This home is for us’: questioning banishment from the ground up” (2010) 11:3 Social and Cultural Geogra- phy at 231-239.
PROJECT INCLUSION 97 people they know and staying close which forced her to make a difficult immediately breach (396),” another to the areas with which they are daily journey to receive methadone person told us. familiar are primary safety tactics for from a downtown doctor. When them. Being prohibited from entering she advocated on her own behalf It seems police can even visibly those areas doesn’t mean women to not be subjected to a red zone identify a person in their red zone, will suddenly find family, resources, that included her methadone clinic, note the occurrence, and not inform and friends they did not previously she was told, “Well, you got to work the individual at the time that they’ve have. It does, however, make them around it (395).” been caught in their red zone. One an easier target when they are on the participant told us about attending street. If people are to avoid committing court one day to find out he was crime and create supportive networks being charged with multiple red zone And anybody that knows that if to keep them away from the criminal breaches, long after he’d breached they’re red-zoned, then they’re justice system, red zoning them from them. “They don’t even have to come most susceptible to being jacked medical treatment for addiction is up to you and give you a ticket, they by beat cops and from looky- poor policy, and in the context of the can just breach you from seeing you lous and people that work for the current overdose crisis, it can be life- (396),” he said. “I had a bunch of police, the informants, and all that threatening. breaches when I was in court handed sort of shit.252 – 56 to me from that, that I never even Increased Police Surveillance—in the got tickets from.” He was given no Our courts have recognized Name of Public Safety? notice to change his behaviour and that displacement and isolation, no warning that he could be facing Red zone breaches are unique in their particularly of women who are street a slew of new criminal charges if he capacity to increase powers of police involved, increases the risk of them couldn’t have his red zone varied. surveillance. One need do nothing experiencing assault, robbery, or even Though such charges may be hard 253 more than be physically present murder. to prove where no arrest occurred at in a location in order to attract the time, they can nonetheless bring criminal sanction. This can lead Red Zones can Cause Serious Health people back into the criminal justice people to avoid services or disguise Consequences system again and again. themselves, trying to avoid detection People seeking assistance to treat as they enter the red zone to access One man we spoke with had been addictions often have few options what they need. This has even convicted of breaching his conditions for medical treatment. Many people greater implications for people living not to carry drug paraphernalia, spoke to us about the difficulty of in smaller communities, where small resulting in him being red-zoned. finding doctors who would treat populations mean that citizens are His red zone resulted in years of them and the limited availability of familiar to one another and people entanglement with the criminal methadone and other addictions lack privacy over their identity. justice system. His time in jail led to treatment in their communities. The profound disconnect and isolation consequences for a person who is One man, who lost his housing when from anyone he knew. red-zoned away from those health he was cut off of his pain medication, services, therefore, can be dire. As told us that he does not have the I’ve been red-zoned. It fucked one participant put it, “I was red- luxury of walking down the street me right up. It kept me in the zoned for two years…I ended up like we do because the police know system for…years. I did a four- in hospital twice because [of that] him and can target him on sight for month fucking bit with 18 months (266).” breaching his red zone. He told us he probation on there. I did like a year, doesn’t breach his red zone to harm all in jail, from…breaches. It went For people who need to access anyone; he breaches it to access the from 18 months to…four years. methadone daily, do not have ready spaces and communities that he Finally I get done, and by that time access to transportation, and have relies on. Breaches have now become I lost right touch with everyone. – other physical ailments that impact a regular, negative fixture in his life 332 (focus group) their mobility, being prohibited from (362). their community clinic can create Our research strongly suggests that barriers to their success in addictions His experiences were familiar to other red zones can result in a cycle of 254 treatment. study participants. “They know you, warrants, arrests, incarceration, and right, and recognize you…as soon more stringent release conditions One woman we spoke with shared as they see you in your red zone, that exacerbate the cycle of her experiences with being red- criminalization. The magnitude of this zoned from her methadone clinic,
252 See also Reid at para 20. 253 See Reid at para 31; Bedford para 70. 254 See also Reid at para 47.
98 Pivot Legal Society harm compared to the underlying exemption letter from their bail about receiving a red zone exemption offences we heard about are supervisor or probation officer to access methadone treatment. disproportionate. excusing them from a specific “They basically only allowed me condition during a limited timeframe within that one-hour time period to NO SAFETY IN EXEMPTIONS OR or for a specific purpose. What we get in there, get your methadone, VARIATIONS heard, however, is that such letters get out (427),” she said. “It didn’t do not stop people from being necessarily mean I had the whole While it is possible to secure a detained by police, nor are they hour to do so…they would watch me variation of one’s bail or probation always possible to secure. like a hawk.” conditions from the court or to request specific exemptions from They tell you, ‘Oh, you can go At a time when thousands of a bail or corrections supervisor get a note…so you can go eat, people are dying from using that could make an individual’s then you got to get out of the unregulated illicit drugs across BC, circumstances more workable, our red zone afterwards.’ But that’s it is untenable to ask that people research indicates there is no real bullshit because when I did try—I request exemptions from bail or sanctuary for people in securing need to go [into my red zone] to probation in order to access basic, an exemption or variation. Delays eat— [I was told] ‘No no, you go life-saving services, such as clean mean that the harms people endure somewhere else, or buy food.’ I syringes, methadone, or supervised before they are able to do so alter the don’t have a place to live. Where consumption services, that must be course of their lives and the realities am I going to keep my, you know, accessed on a daily basis. of criminalization often make seeking it’s too tiring. For people that are such alterations unrealistic. homeless that’s even harder for BAD DATA CAUSES REAL HARMS them. – 266255 One woman we spoke with told us There’s little accountability around about how a judge had found she had People trying to access necessary the imposition of conditions, more than served her time because services will miss important particularly those issued by the of all the time she spent in custody opportunities to improve their lives police. A more accountable system for breaches of her probation—six and health if they are required to would require that police register breaches later. “They just kind of seek red zone exemptions each time the conditions they impose into a threw my probation order out (313),” an opportunity arises. Many people database by the type of condition, she said. But this decision came we interviewed opt instead to risk not only the name of an accused only after years of suffering and breaching their condition. “It’s just person, allowing the public to access continuing to breach her red zone quicker (63),” one person said. “I just information regarding the frequency because of ongoing substance use found out I could go see a doctor with which different conditions issues. “They just said, obviously, that day and I didn’t want to go are imposed by police. A more it’s not going to be doing her any through all the bullshit [of securing an accountable system would also good to keep breaching her,” she exemption].” require that the justice system track remembers. That decision arrived so specific breach allegations coming late that much of the harm of living In BC, the Provincial Court has found before the court in a manner allowing with a behavioural condition had that getting an exemption from a for aggregated data to be made easily already been done. bail supervisor or probations officer accessible to the public. Neither is may not be viable for all people.256 currently the case. Similar harms were noted by several When it comes to accessing harm Indigenous participants who, after reduction services such as obtaining Police-imposed conditions are almost being in the court system for an clean syringes, people are particularly impossible to track by researchers extended period, and after being reluctant to ask permission because through Freedom of Information convicted of multiple breaches, doing so means admitting to a bail requests and they currently cannot were finally able to convince a judge supervisor or corrections officer that be subject to internal police review to vary their conditions, removing you are planning to break the law by or oversight because they are not conditions that were setting them up possessing drugs for consumption or logged in any database in a way that to fail such as abstinence conditions. breaching an abstinence condition.257 is searchable based on the types of conditions imposed. On a more regular basis, people are Where people need daily medical told by either courts or police that treatment, the strictures of an When courts impose conditions, it they can manage the conditions exemption can create barriers to is very challenging to assess how placed on them by requesting an accessing care. One person told us they are being used and enforced.
255 See also Reid at para 38. 256 Reid at para 50. 257 See e.g. Reid at para 42.
PROJECT INCLUSION 99 All adult and youth criminal matters for breaching various offences. For Project Inclusion. We are mindful that are administered, managed, tracked, example, data is not available to at the time of writing, C-75 was only and documented through a database assess how often curfew conditions at second reading. It may go through called the JUSTIN Justice Information are imposed on people experiencing significant amendments, and may System (JUSTIN), a system homelessness. never become law. containing BC Courts information.258 There is currently no way, however, Shortcomings in accountability C-75 proposes to streamline the to track what conditions are being mechanisms also impact people bail process, ostensibly with the breached on a statistical level without directly. People we spoke with often aim to decrease the number of the use of complex computer science told us that they found it difficult to conditions to which people are analysis tools,259 as doing so would understand what specific offence subjected, decreasing the number require individually reviewing every their conditions were tied to, how of criminal convictions for breaches single breach allegation that comes long their conditions applied, and of conditions, and reducing the time before the courts. This is not inherent how they were to be enforced. Some people spend in courts and jails for to the nature of breach allegations study participants told us they were those breaches. How these proposed nor to the court’s process; it is caused unaware when their conditions amendments will operate is, by how breaches are logged in had been lifted. Without that however, unclear and some portions JUSTIN.260 knowledge, they had continued to of C-75 raise preliminary concerns for deal unnecessarily with red zones and us. Due to the manner by which tracking breaches, even in cases where the occurs, we are unable to discern Crown never approved the underlying C-75 reiterates and reinforces the exact numbers of breach charges laid charges. existing requirement that people be or convictions entered in relation to released under the least restrictive particular conditions. Our Freedom This lack of accountability extends terms, including without conditions, of Information request returned data to what seems to be an uneven unless Crown justifies the imposition on the number of times a particular landscape of police database of each condition. It also legislates condition had been imposed and updates. The result is that PRIME- the requirement to consider the the number of individuals upon BC may not always reflect recent overrepresentation of Indigenous whom such conditions has been changes to people’s conditions, people in the criminal justice imposed. The numerical data did including when they are lifted. system in determining whether not, however, accurately capture or not to release a person on bail. One person we spoke with described the number of times people were It extends such considerations how they were arrested for a breach, charged or convicted for breaching to other vulnerable populations even after they’d completed bail specific conditions. That is because overrepresented in the criminal or probation. We found this to be all breach of bail charges (for all justice system and who are a shared experience among some conditions) are laid pursuant to disadvantaged in obtaining release on other participants and heard similar one section of the Criminal Code, bail. This is a powerful step towards stories from some criminal defence section 145, and all breaches of recognizing the systemic injustices counsel. probation are laid pursuant to section against Indigenous people resulting in their drastic overrepresentation 733.1. The specifics of each breach I got nailed for [a] paraphernalia in prisons. It will hopefully also charge are not tracked in a way that charge and it wasn’t even in my benefit other racialized people who allows numerical data to readily be conditions anymore. It was in are more likely to be detained and extracted for breaches of each type my previous conditions that had are overrepresented in the criminal of condition. ended six weeks before I got system. C-75 does not define its use arrested. And they picked me up Tracking such data would allow us, for of the phrase “vulnerable population,” on a paraphernalia [breach] and example, to easily assess how often so it remains to be seen whether charged me. – 153 people are charged or convicted for people living with addictions, carrying harm reduction equipment experiencing homelessness, or deep or breaching abstinence conditions. BILL C-75: LAW REFORM AND poverty will also benefit from this Further, our own data request UNCERTAINTY amendment. reflects the need to better track how The proposed reforms put forward in often conditions are imposed, who C-75 are wide-ranging. The proposed Two amendments in particular is being subject to them, and how reforms to court-imposed conditions may have unintended negative often people are being convicted and bail are particularly relevant to
258 Office of the Auditor General of B.C., Securing the JUSTIN system: access and security audit at the Ministry of Justice (Office of the Auditor General of B.C., 2013) at 6. 259 Sylvestre (2017) at 12-13. 260 Sylvestre (2017) at 46.
100 Pivot Legal Society consequences for the people we not adequately address this concern behavioural conditions put both heard from in Project Inclusion. and so, regardless of the Bill’s individuals and their communities at trajectory, we are concerned that this risk of harm. Many participants told Rather than limiting the use of issue will persist. us about the people in their lives harmful red zones, C-75 explicitly who rely on them and whom they adds red zones as an optional FINAL WORDS: CONDITIONS rely upon for support, resources, condition that may be imposed DON’T CORRECT BEHAVIOUR— and companionship. Risking upon people who are released by THEY PUT PEOPLE AT RISK criminal sanction and incarceration the court. While this practice already for breaching a condition creates Behavioural conditions impose occurs, Pivot Legal Society is of the ripple effects that can endanger inordinate complexity and negative opinion that adding red zones as the people close to the individual impacts on the lives of the people to an optional condition listed in the charged for a breach. One participant whom they have been issued, often Criminal Code only encourages what put it this way: “A friend of mine… at times when they are the most we see as harmful practice, rather kind of depends on me. He has vulnerable and have the least access than curtailing it, which we argue is autism and doesn’t have any family 261 to resources. Each of the conditions necessary. and I’m his only friend. And we’re identified in this chapter can lead to staying in the shelter together and Further, C-75 contains a new initiative harmful results unto themselves, I, you know, I don’t want to leave allowing police to compel a person to but when they are layered one him, you know, without having me attend court for a suspected breach upon another,262 their potential to around, because he trusts me (304).” of a condition without charging them send a person into a spiral of riskier Risking incarceration for breaching a criminally where the breach does not behaviours, to alienate them from condition puts both this participant involve violence, harm, or property services and community, and to keep and his friend at risk. “I don’t really or economic damage. The intention them entrenched in the criminal know what to do,” he said. “I’m of these amendments is to decrease justice system compounds. going to have to go to my court the number of charges laid for non- appearance. Is there a way to find out violent/damaging breaches. These A federal government study has whether or not there’s a warrant for amendments could have unintended noted the absurdity created by the me before I walk in there?” negative consequences, however, current system of conditions. In 2015, the Research and Statistics if they encourage police officers to In every community we visited while Division of the Department of Justice issue appearance notices on people conducting research for this project, published a report finding that the for behavior so minor that the officer most people we talked to found current bail system creates barriers may have previously taken no action their behavioural conditions to be to being re-released, adds to criminal at all. inordinately punishing given their charges, and creates a likelihood that personal situations. Where police, Far from limiting the number of anyone re-released will be subject to Crown, or courts issue behavioural people appearing in court for even more onerous conditions. conditions with the eye towards breaches of conditions, these behavioural modification motivated amendments could encourage even This feedback loop becomes by the risk of criminal sanction, that more people to be brought into the especially disconcerting when one approach carries consequences that system where they may face multiple recalls that many of the original work against its intended purpose appearance notices that they cannot bail conditions may have been because of its negative impact on adhere to, and where their liberty unnecessary, unreasonable, or people’s lives. Those impacts show may be further infringed upon clearly setting up the accused for up in a number of ways, from a without being convicted of a crime. failure (e.g., imposing a condition to abstain from drugs/alcohol on person going hungry because they Finally, Project Inclusion participants an accused person who has clear are unable to access their only food told us that the myriad conditions to substance abuse issues; requiring an source, to a man afraid to carry which they are subjected are complex accused suffering from Fetal Alcohol clean harm reduction supplies, to a and confusing. They include bail Spectrum Disorder (FASD) and terrified woman cowering alone in conditions, but also probation and experiencing homelessness to report a dark trailer waiting for morning to police-imposed conditions, often to a police station on a specific day come. These are not reasonable or leading people to be confused about each week).263 justifiable applications of the criminal what conditions they are subject to law. and who imposed them. C-75 does Through the course of our research for Project Inclusion, we found that
261 C-75 at cl 227 amending ss. 515 of the Criminal Code. 262 Sylvestre (2017) at 49. 263 Webster at 8.
PROJECT INCLUSION 101 Recommendations
1. The Government of Canada must amend the Criminal Code i. aligns with the Criminal Code requirement that an to prevent the use and prosecution of discriminatory or accused be released unconditionally unless their destructive behavioural conditions of interim release and detention or the imposition of conditions is justified; sentencing, specifically: ii. reflects Supreme Court of Canada jurisprudence a. legislate that conditions imposed on interim release requiring that conditions of release be minimally be reasonable and proportionate to the nature onerous and that every imposition of more restrictive and seriousness of the alleged offence and the conditions must be individually justified; and circumstances of the accused; ii. takes into consideration the potential harms of b. define “drug paraphernalia” as harm reduction medical imposing certain conditions on some individuals equipment and prohibit the imposition of conditions based on their social condition, race, ability status, that would interfere with the ability to access or possess housing status, and substance use. harm reduction equipment; b. amend the BC Prosecution Service Information Sheet c. prior to imposing an abstinence condition, require that “Bail (Conditional Release)” to reflect the presumption of courts consider a person’s dependence on drugs or unconditional release; and alcohol. Abstinence conditions shall not be imposed on c. amend the Public Prosecution Service of Canada people living with addictions, except where doing so Deskbook Part 3.18 sections 2 and 5 to: is necessary to protect the safety of a victim, witness, or the public, and harm-reduction measures shall be i. more clearly reflect the Criminal Code requirement preferred over abstinence; that an accused be released unconditionally unless their detention or the imposition of conditions is d. limit “red zone” conditions to situations where there is a justified; and substantial likelihood that, if released without a red zone, the accused will commit an offence involving violence or ii. take into consideration the potential harms of serious harm within the red zone and ensure that any red imposing certain conditions on certain individuals zone is tailored to the alleged offence, the principles of based on their social condition, race, ability status, judicial interim release or probation, and circumstances housing status, and substance use. of the individual; 3. The Provincial Court of British Columbia should: e. remove paragraph 504(2.1) (g), the power for police to a. establish a Practice Direction re-affirming the impose “abstinence” conditions; and presumption of unconditional release and the f. eliminate criminal sanctions for non-violent breaches of requirement that Crown individually justify the behavioural conditions. imposition of every restriction on release; 2. The Governments of BC and Canada must amend their b. amend the Provincial Court of British Columbia, “Bail prosecutorial policy, specifically: Orders Picklist”, May 1, 2017 and Provincial Court of British Columbia, “Probation Orders Picklist” May 1, 2017 a. amend the BC Crown Counsel Policy Manual to include a to: policy on “Conditions of Release” that:
102 Pivot Legal Society i. remove “Drug Paraphernalia” conditions; b. individuals released from police custody should be proactively informed of the procedures that can be used ii. restrict the use of “No Alcohol or Drugs” conditions to vary police-imposed conditions under the Criminal in relation to people with addictions; Code; and iii. remove “banishment” conditions entirely; c. police should release individuals under the most iv. ensure that all “red zone” conditions are imposed minimally restricting conditions available in the only where doing so is required to protect the safety circumstance, taking into consideration an individual’s of a victim, witness, or the public from violence or need to access shelter, social services, health care, and serious harm. In doing so, red zones must be tailored community, as well as the possible disability status of to the alleged offence and the circumstances of the the individual, including addiction. individual. Under no circumstances are standardized 5. The Ministry of Justice and/or Court Services Branch must red zones appropriate; and update any Ministry of Justice databases (e.g. JUSTIN) and v. prohibit the imposition of behavioural or geographic related practices, policies, and technology platforms, to conditions that would interfere with the ability to ensure that the imposition of bail and sentencing conditions access health or social services, including harm can be tracked in correlation with housing status and race, reduction health services. and that breaches of bail or sentencing can be properly c. Create a Provincial Court resource outlining “harm recorded and searched based on the type of condition reduction services,” including a definition of: breached. i. “drug paraphernalia” as harm reduction equipment; 6. Relevant policing stakeholders must update database systems, e.g. PRIME-BC, to: ii. “Safe Consumption Sites” and “Overdose Prevention Sites”; a. require that all police-imposed conditions are electronically registered, including: iii. needle exchange; i. the date of imposition; iv. opioid substitution treatment; and ii. the date or causal mechanism by which the condition v. low-barrier health services. will expire; 4. Police Services must create a provincial practice direction iii. the specific content of the condition; and for police officers upon release of an accused, adopting the following recommendations of the Canadian Civil Liberties iv. the underlying reason for imposing the condition. Association:264 b. ensure that PRIME-BC can be searched to track all police- a. police should make increased use of their power to imposed conditions in the aggregate, rather than only release and ensure that any conditions imposed are being tied to an individual’s file. constitutional and legally permissible under the Criminal Code;
264 See Deshman & Myers at 83.
PROJECT INCLUSION 103 PART TWO: CHANGE THE SYSTEM Section Three No Access, No Support: Service Gaps and Barriers
She took some time to consider decide between housing and other before deciding she would like to necessities of life such as food and share her story, although she wasn’t transportation. sure she would have too much to say. We are deeply indebted to her for making the choice to speak with Stigma is embedded us. She is alone for the first time and living on basic income assistance in the fabric of health after having spent her life living with and social services a parent until they passed away a few in a way that is years ago. Unable to find housing, undermining public she was now homeless in the same health, perpetuating community she had lived in all her life. criminalization, and, in some cases, leading We don’t know where this woman to violations of human is today, but we do know that the rights. shelter is now gone, as it was only operating on a temporary basis. We also know that we have a responsibility not just to share the We also need to look deeper, heart-wrenching details of her story, because the answer lies not only in but to pose the question: how, in infrastructure and funding levels, Through the course of our research contemporary British Columbia, but in the ideologies and beliefs for Project Inclusion, we connected could this situation even happen? that underlie the development and delivery of many essential with a number of people like the Some of the answer lies in issues soft-spoken woman we met one rainy services. To be more specific, we were not going to take on here, stigma is embedded in the fabric of morning in front of an emergency such as housing stock and income shelter where she was staying. She health and social services in a way assistance rates, because they have that is undermining public health, was doing her best to make herself 265 been documented ad nauseam. perpetuating criminalization, and, in comfortable near the shelter’s front These are critical issues that must door, despite the fact that she was some cases, leading to violations of be addressed to ensure that people human rights. in extreme physical pain. We later who rely on income assistance, learned that she was also living with low-income workers, and other low- Many participants in this project advanced cancer. income people are not sentenced identified services and specific to homelessness or forced to service providers as critical sources
265 See for example, Seth Klein, Iglika Ivanova, & Andrew Leyland, Long Overdue: Why BC Needs a Poverty Reduction Plan (CCPA BC Office, 2017), online: https://www.policyalternatives.ca/sites/default/files/uploads/publications/BC%20Office/2017/01/ccpa-bc_long-overdue-poverty-plan_ web.pdf.
104 Pivot Legal Society of safety, support, and community. Many people also experience barriers [financial] support [through income We know that we could not have in accessing services that are assistance, with no shelter allowance] undertaken this project without generally available to the public as a you cannot go to the food bank the openness and dedication of whole. because that means you don’t have overtaxed frontline service providers an address.” who were willing to add to their People spoke, for example, about already overflowing plates by sharing barriers to spending time in public It is important to note that many of their knowledge and facilitating libraries as this couple, who the participants in this study only research visits to their communities. participated together, explained. receive the support portion of their “Sometimes they’ll call security income assistance, and they cannot Despite the many highly skilled (459a),” he said. His partner added, access shelter allowances to pay for service providers working tirelessly to “Yeah, it depends on if…that’s one of things such as tents or tarps or to support people in their communities, the days where all the kids are in… cover other costs associated with project participants across the like a field trip there. Then they’ll ask homelessness. province consistently identified ways you to leave or call security, and get in which not only emergency and security to get you to leave (459b).” Given that basic income assistance health services geared toward the When evaluating the role that stigma support rates are currently $335 266 public at large, but also organizations and discrimination play in limiting per month, it is impossible for a and programs ostensibly operating access to services generally available person to feed, clothe, and otherwise specifically to serve people to the public, we feel compelled to support themselves without experiencing deep poverty, share that as we write this, we are additional resources. homelessness, and substance use, well into our fifth hour in a study Another participant explained that were not meeting their needs. room at the Vancouver Public Library the shelter does not constitute an that is explicitly limited to two-hour address for the purposes of accessing The service barriers and gaps that bookings in a given day. Security has the food bank. “You have to have an project participants identified walked by several times over the last ID too, and proof of address. And span the gamut, from waitlists three hours and has said nothing. due to chronic underfunding, to the shelter doesn’t constitute as an address (459a),” he said. logistical barriers that make services “No Address, No Food” inaccessible, to attitudinal issues among staff, to underlying stigma Discrimination also shows up in THREE FOCUS AREAS: INCOME embedded in program design. services meant to cater exclusively SUPPORT, SHELTERS, HOSPITALS to people living in poverty. One Considering this range of barriers Among the vast array of service gaps participant explained that in her and gaps, participants emphatically and barriers that participants in this community, the local food bank does shared that they need services that project navigate in their lives, we not serve homeless people. “I don’t support people’s sense of dignity and identified three major areas where have ID, which makes it hard for me autonomy, that are trauma-informed, gaps and barriers are substantially to go to the food bank or anything. I that are culturally appropriate, and undermining health and safety: that engage peers in program design can’t get food or nothing (397),” she and delivery. Services that lack those said, explaining that her community • provincial income support features have negative impacts on food bank requires people to produce programs; health, safety, dignity, and well-being documentation that shows they have • shelters; and a fixed address in order to access in the short term, and in the long • hospitals. term, they drive people away from its services. “You have to have a engaging with health services, shelter residence, too.” We have chosen to focus on gaps and housing options, and income This woman was one of many and barriers in relation to these support programs. participants who explained the three broad service areas, both “no address, no food” rule. “You because they came up most often STIGMA CUTS PEOPLE OFF FROM can’t get food from the food bank in discussions with participants BASIC NECESSITIES, PUBLIC if you’re homeless (262a),” another and because of the very real and RESOURCES participant said. “If you don’t have direct health, safety, and human People who took part in this project an address, if you’re homeless…they rights implications that arise where experienced many of the barriers we will not so much as give you a can of these services are not available or discuss when accessing even basic pop, a bottle of water, nothing…You accessible to marginalized people. necessities like washrooms and clean have to have an address, they will drinking water. check with welfare…if you only get
266 Government of British Columbia, Rate Table: Income Assistance (BC Employment & Assistance Policy & Procedure Manual), online: https:// www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/bc-employment-and-assis- tance-rate-tables/income-assistance-rate-table.
PROJECT INCLUSION 105 Throughout the course of our We will explore each of the three purportedly fostered. The research, the following key findings broad service areas in detail, and government of the day implemented emerged from our exploration of conclude this chapter with a look at a number of far-reaching changes service gaps and barriers which the role that engaging peers can play to income assistance, with the goal surfaced through discussion with in improving service design, delivery, of reducing the operating budget Project Inclusion participants: and advocacy. of the then-named Ministry of • across BC, there are too few Employment and Income Assistance safe drop-in services, shelter NEOLIBERALISM IN CONTEXT: by approximately one-third, over a spaces, harm reduction services, HOW BC WAGED A NEW WAR ON three-year period. The BC Liberal treatment beds, and advocacy THE POOR government began its economic restructuring program in 2001 with services to meet the most basic While the housing crisis in BC is not a 25% across-the-board tax cut.269 needs of people living in poverty; attributable to any one cause and not This cut resulted in diminished levels all homeless people rely on income • a range of factors, from stigma and availability of income assistance, assistance or disability assistance,267 to resource constraints, result increased pressure on single parents it is clear that both the inadequacy in services that are, by design, to find paid work, an erosion of labour and the inaccessibility of government difficult for their intended standards, and greater reliance on income assistance are major drivers population to access or that are the private sector to provide formerly of homelessness. inadequate to meet people’s public services. complex needs; There is widespread recognition In April 2002, the provincial • decades of de-funding and among social scientists that many government revamped income resulting privatization of services western nations, including Canada, assistance in British Columbia. While for people who live in deep have embraced an economic the province’s income assistance poverty has created a patchwork philosophy termed neoliberalism rates and policies were already a system of service delivery, since the 1980s. Among other things, target of criticism from anti-poverty where the number and types neoliberalism strives to achieve so- activists and scholars, support of services available, rules for called “smaller government,” lower rates were reduced and employable clients, and oversight standards taxes on income and corporations, clients were limited to 24 cumulative vary arbitrarily from municipality and privatization of government months of assistance in any five- to municipality; services.268 The continual rise in BC’s year period.270 The $100–$200 rates of homelessness since 2002, • even well-intentioned service earnings exemption for those who and the increasing role that private providers and health care earned additional income while on charities play in the lives of people professionals set up policies assistance was discontinued.271 Those living in poverty, track alongside and engage in behaviours that changes to income assistance have the coordinated implementation of are based in stigma and create had profound, longstanding impacts neoliberal policies in this province, service barriers; and on the levels of poverty in Vancouver including aggressive restrictions and across BC. • the barriers we have identified, on the availability and adequacy of particularly where they result income assistance. from attitudes of staff or policies The sweeping cuts, which came into effect in April 2002, included rooted in stigma, have real-time Despite already stringent eligibility the closure of 36 income-assistance negative impacts on people’s requirements and poverty-level offices across the province and psychological and physical health, assistance rates, when the BC Liberal the loss of 459 full-time-equivalent making it less likely that people party came to power in 2001, they positions. The provincial government will engage with the health care declared that they would put an justified the cuts by virtue of the fact system in future. end the “culture of entitlement” that they planned to significantly the previous government had reduce the number of welfare
267 The 2017 Metro Vancouver Homeless Count found that 22% of homeless people counted had part- or full-time employment and that others engaged in informal labour such as binning/bottle collecting to support themselves. 268 Key texts include: David Harvey, A Brief History of Neoliberalism (Oxford: Oxford University Press, 2005) and Jamie Peck, Constructions of Neo- liberal Reason (Oxford, Oxford University Press, 2010). 269 Doug Ward, “BC Liberals’ 12 Years of Tax Shifts, Explained” The Tyee (May 6, 2013), online: https://thetyee.ca/News/2013/05/06/BC-Liberals-Tax-Shifts/. 270 This policy was changed in 2012 see: Legal Services Society Updates to your Welfare Rates (October 1, 2012), online: https://sci-bc-database. ca/wp-content/uploads/Your-Welfare-Rights-Update.pdf. 271 Earning exemptions were re-introduced in 2012 see: Government of British Columbia, Changes to Income and Disability Assistance take effect today (October 1, 2012), online: https://news.gov.bc.ca/stories/changes-to-income-and-disability-assistance-take-effect-today.
106 Pivot Legal Society recipients.272 Other changes included had access to Income Assistance somewhere, somebody, to help an unwieldy new process for applying within the previous two years.274 you somewhere along the line. – for disability benefits. Changes to People experiencing deep poverty 373 income assistance were part of a are precisely the people income broader project that unfolded during assistance exists to support. This Along with the wait time, the closure the early 2000s of dismantling social statistic demonstrates the chasm of offices and the application process services including drastically reducing that exists between the people who for both income assistance and investment in low-income and social require social services and the real- disability benefits have become housing, privatization of formerly life accessibility of those programs. a major barrier for the people the public services, and reducing system is intended to support. regulations in areas such as labour The provincial changes to income One woman we heard from, who standards. assistance in 2002 included new lives with a range of physical and mandatory wait times for accessing intellectual disabilities, told us that In order to combat homelessness, assistance. This change had an her boyfriend helps her with the income assistance rates must be immediate, negative impact for administrative aspects of accessing raised to reflect the actual minimum people who suddenly lost their income assistance. “He knows how cost of living, and the provincial housing or found themselves to read and write and he knows how government must invest in building unable to pay their rent. One man to talk to the system (121),” she told an adequate supply of welfare-rate who took part in this study was a us. For a person struggling with housing that meets the demand professional contractor who found literacy, accessing income assistance for it.273 What we learned from himself destitute in the midst of a would be impossible without participants in this study is that BC struggle with anxiety, depression, and help. That struggle also places the needs to take immediate steps to substance use. address both the deliberate and the downstream access issues that make He explained the reality of mandated 275 it difficult to secure and maintain wait times from the perspective of even the meager income assistance someone experiencing homelessness benefits that are available. for the first time. I was sleeping outside in a ditch A PROJECT OF EXCLUSION: at the time. And when you apply INCOME ASSISTANCE IN BC for welfare it takes over a month Access before they’ll even think about cutting you a cheque…So, I mean, The provincial government has I don’t know where I’m going to described income assistance, known be in a month. I don’t have a clue. colloquially as welfare, as a “program – 175 of last resort.” Even if we accept that dissuading people from accessing Once this cycle of poverty begins, a income assistance is a legitimate person may become entrenched in policy goal, which we dispute, it is homelessness. The cycle makes it clear that the notion that welfare is increasingly difficult to re-enter the and should be a last resort for people labour or the housing market. has been taken to such an extreme that it is causing objective harm to Someone is like, ‘Get a fucking people in need, the communities job.’ Well, if that person…doesn’t in which they live, and society as a have an alarm clock, doesn’t have whole. A major study of people who food, doesn’t have something nice are homeless in Vancouver reveals to wear, they are not going to get that the over half of respondents, a job and then they are not going 57%, never or only sometimes to be able to go to work. You need
272 Darcie Bennett & Lobat Sadrehashemi, “Broken Promises: Parents Speak About BC’s Child Welfare System” (Pivot Legal Society, 2008), online: http://d3n8a8pro7vhmx.cloudfront.net/pivotlegal/legacy_url/310/BrokenPromises.pdf?1345765642. 273 Seth Klein & Pamela Reaño “Time to raise welfare rates: Debunking the BC government’s sorry excuses for inaction” CCPA Policynote (March 30, 2017), online: http://www.policynote.ca/time-to-raise-welfare-rates/. 274 Mario Berti & Jeff Sommers (2010) “The Streets Belong to the People who pay for them: The Spatial Regulation of Street Poverty in Vancouver British Columbia” in Diane Crocker and Val Marie Johnson eds, Poverty, regulation and social justice: Readings on the Criminalization of Poverty ( Halifax: Fernwood , 2010) at 60-74. 275 For a current overview of wait times for accessing income assistance benefits, visit the Ministry’s website, online: https://www2.gov.bc.ca/gov/ content/family-social-supports/income-assistance/apply-for-assistance
PROJECT INCLUSION 107 woman in a position of significant She is the quintessential example circumstances. “If you got warrants, dependence in her relationship. of what happens when a system they kick you off [income assistance] meant to provide a safety net for (459a),” he said. Getting kicked off of Many of the people we spoke with those in the greatest need is focused income assistance, he added, strips find web-based systems, like the on keeping people off of benefit a person of their ability to attend to main system through which people programs. basic necessities like purchasing food are expected to apply for income and clothing for themselves. When assistance and through which many Interviewer: asked if such a situation would make rental vacancies are posted, to be How do they treat you at the it more likely for him to steal food, he highly inaccessible. “I need help office? replied, “It does most definitely.” sometimes finding housing (256),” one participant told us. “I’m kind of Interviewee: Good. I know them all, so. I’ve Rules, Investigations, and Why computer illiterate so I have a hard Advocates are Sorely Needed time with that [accessing rental been on it since I’ve been 18. listings online]. Telephoning is fine.” Once a person has been successful Interviewer: at securing income-assistance Even many of the participants in this So you’ve been trying to get benefits, experiences of precarity study who felt comfortable using onto disability, you clearly have a continue to feature prominently the internet did not have access to diagnosis. What do you feel like in their lives, particularly those digital devices or places where they the block has been? living with intersecting barriers. could go to use web-based services. Many people expressed frustration Interviewee: “The only internet that’s there is in with the onerous requirements for Not enough services. The [local service hub] we’re not allowed maintaining their benefits, including advocate. There’s three different access to it. Only the workers can… implementing an employment sections of it [the application It’s like in the back of the staff room, plan,276,277 given all the challenges in form for disability assistance]. My like our little office (313),” one person their lives. One participant put it this doctor filled it out right away. I said. “And you ask them to do stuff way: need the other two people to help like that and it’s just like—like they’re me fill it out. I still haven’t done so busy.” Last month, I had a hold on my that. cheque because I needed to sign We learned from service an employment agreement. I tried Interviewer: providers that in rural and remote to do so, but it was online. There’s How long have you been trying? communities, accessing services still no way for me to sign it. So online is virtually impossible. People Interviewee: now there’s a hold on my cheque cannot access the internet from Seven years now. this month until it gets signed. – home and service hubs are located 332 far from where people live. Interviewer: And nobody at the welfare office Study participants also noted how Many people we spoke to also has offered to help you? easy it is for someone to reach out explained that they need help from to income assistance and prompt an advocate to successfully navigate Interviewee: an investigation questioning their the income-assistance process. No. Of course not. – 397 eligibility due to income, assets, or This means that community-based family status. Several people who services mandated to serve a large The barriers people face in navigating took part in this study had been potential client base and offer a broad the current system cannot be kicked off of income assistance after range of services are increasingly overstated. It is also important someone contacted the Ministry overstretched as advocates spend recognize that people need to with an allegation that prompted an much of their time helping clients find ways to survive. While many investigation. Welfare “snitch lines” access the government services people manage to get by engaged and anonymous fraud reporting to which they are entitled. This is in lawful activities, such as collecting are a major source of stress and especially the case for people like the recyclables, the likelihood that concern in people’s lives. In BC, woman we profiled at the beginning someone will resort to illegal income anyone can report suspected welfare of this chapter who is homeless, generation is greatly increased when fraud by filling out an online form living with cancer, and unable to they have no access to basic income. that is easily accessible on the access disability benefits. One participant who was kicked off Ministry of Social Development of income assistance explained his
276 Government of British Columbia, Employment Planning, online: https://www2.gov.bc.ca/gov/content/family-social-supports/income-assis- tance/on-assistance/employment-planning. 277 Government of British Columbia, On Assistance, online: https://www2.gov.bc.ca/gov/content/family-social-supports/income-assistance/on-as- sistance.
108 Pivot Legal Society and Poverty Reduction’s website.278 has only emerged as a pervasive, basis. Shelter providers must also do The form allows people to tick a growing so-called “social problem” all that they can to promote health box stating that they would like to in recent decades. In the late 1980s and dignity of their clients and offer remain anonymous when making and early to mid-1990s, the federal as much privacy and autonomy as their allegation. The way in which government shifted its housing policy possible. fraud allegations, including those in favor of home ownership, and submitted anonymously, are drastically cut spending in order to Unavailable and Inaccessible investigated and the impact on balance the budget. In practice, this In every municipality we visited, people’s income, health, and safety is shift meant cuts in federal funding issues related to the availability of a complex issue that warrants further transfers to the provinces, who then shelter spaces, living conditions study. drastically cut their own program inside of shelters, and reasons spending for housing and social that people could not or would not In the current system, advocates play services.280 an important role; well-resourced access them, were a major topic of advocacy services are needed in The result was a rise in homelessness conversation. every community in BC. At the same and with it, the emergence of One man who lives with anxiety, time, when accessing government a loose system of faith groups, depression, and chronic back pain services, the need for advocacy non-profit organizations, and local explained what living in the shelter is support should be exceptional, not governments aimed at responding to like for him. an everyday occurrence, because the immediate needs of people who government services should be are homeless. That scattered web I over-medicate myself at night designed in such a way that they are of supports responds to what needs so [I] can…not think about all the accessible to those the services are in it can in the form of emergency other people. And [I] do stay away place to support. shelters, drop-in centres, counselling, from a lot of the people. Like I social supports, and in some cases go outside a lot or I’ll hang out The role of government employees health supports, while being unable somewhere else away from inside, administering these programs should to provide adequate income and because once you’re inside, it’s be to connect people to services and permanent housing, the actual keys 15 people to 20 people in a small benefits for which they are eligible. to lifting a person out of poverty. little building, you’re cramped. The stigma-driven ideology that This privatization process does not You’re elbow-length away from underpins BC’s approach to income constitute a genuine replacement of your neighbour. So, it’s like a lot assistance has created a system that the welfare state, but instead offers of little butting of heads here prevents the very people income small-scale band-aid solutions. In and there, and once in a while, of assistance programs exist to serve BC, particularly from 2001 to the people. And it’s just part of having from accessing desperately needed present, this process has led to the so many people in a small space, economic support. increasing formalization of the so- but I’m hoping this new shelter called “emergency” shelter system. Those with the fewest resources to gets built because that will be This system provides beds or mats fall back on have been diverted not helpful anyways…I already wanted on a floor on a night-by-night basis. into a booming labour market, but to leave there many times and Some shelters only operate during rather into homelessness for over go stay in the bush if I could, but specific times of year or when the a decade.279 Others have remained I can’t. So I’m just forcing myself temperature drops below a certain in abusive relationships, allowed through the process of being there level.281 employers to violate labour and like but it’s hard for me, so I smoke a lot more to medicate myself to human rights standards in order to Shelters are not an answer to the just go sleep. – 269 keep their jobs, or turned to work in need for affordable housing in BC. criminalized survival economies. However, as long as homelessness He also explained that just remains a reality in this province, it maintaining access to his mat on the SHELTERS is critical that everyone in need has floor at the local shelter has taken Homelessness in Canada is not new, access to safe shelter that meets over his life. but it’s notable that homelessness their needs on a more than overnight
278 You can view the entire form here: BC Ministry of Social Development and Poverty Reduction, Fraud Allegation Reporting Form, online: https:// www.reportfraud.gov.bc.ca/Allegation.aspx. 279 Seth Klein, Marge Reitsma-Street, & Bruce Wallace, “Denied Assistance: Closing the Front Door on Welfare in BC,” (CCPA, BC Office, 2006) on- line: http://www.policyalternatives.ca/sites/default/files/uploads/publications/BC_Office_Pubs/bc_2006/denied_assistance.pdf at 6. 280 Stephen Goetz, “The Struggle to End Homelessness in Canada: How we Created the Crisis, and How We Can End it” (2010) 3 The Open Health Services and Policy Journal at 21. 281 BC Housing, “Emergency Shelter Program,” online: https://www.bchousing.org/housing-assistance/homelessness-services/emergency-shel- ter-program.
PROJECT INCLUSION 109 turning away individuals, primarily because they had reached full capacity.”282
While the number of shelter beds in BC has increased since the last count in 2014, the latest count found that the increase was not enough to result in a lower number of persons turned away in 2017 compared to 2014.283
The Problem with Shelter Operating Hours and Good Neighbour Agreements Even where shelter beds are available on an overnight basis, they do not often address people’s need to have somewhere to spend time and attend to basic needs during the day.
As one participant explained, “We stayed [in the shelter] during the night, [they] kicked us out early in the morning, then we have to find shelter for the day (13).” She told us about having no shelter during the day, which results in exposure to the elements and pests, all while facing the threat of criminal sanction if she tries to shelter herself in public space. “We are not allowed to put up a tent or little tarp over us.”
This woman went on to explain that having to leave the shelter each day is made even more difficult because in her community, shelter residents have to take all their possessions with You get kicked out at eight o’clock and passes out in a bush and doesn’t them and carry them around all day. and then you wait all day long and show up so that you can get a bed.” then you got to go back at four If I’m gone more than an hour and then they will open up again… We heard stories of shelter turn- they throw all our stuff in the bin… If it’s too full, that’s it, you are aways in every region. For some Like brand new clothes, whatever, done, you got to go somewhere regions, we have quantitative data they will throw it all way, no matter else…that’s why I show up early, I that demonstrates the lack of shelter what. They will take the IDs out or just go there at 3:30 and hang out spaces is a pervasive problem. The whatever, and that’s the only thing ‘til it opens up and then I set my Metro Vancouver homeless count is they take out of the bag, and they bed up and whatnot so I have my a 24-hour point-in-time measure of throw everything away. All our guaranteed spot every night. – 269 homelessness in the region. The 2017 personal…belongings, everything. count took place on March 7, and the – 13 Another man explained the report authors state that demand shelter situation in his community. for shelter was so high on that single She explained that having to carry all “Especially through the winter evening “that shelters, safe houses, of their belongings, especially when months, they’re always full (175),” EWR [Extreme Weather Response] using bags provided by the shelter, he said. “Basically, you got to pray shelters, transition houses, and detox makes shelter residents who have no that somebody goes and gets drunk facilities reported 334 instances of place to go more vulnerable to police
282 BC Non-Profit Housing Association & M. Thomson Consulting, 2017 Homeless Count in Metro Vancouver, online: http://www.metrovancouver. org/services/regional-planning/homelessness/HomelessnessPublications/2017MetroVancouverHomelessCount.pdf at 8. 283 BC Non-Profit Housing Association & M. Thomson Consulting.
110 Pivot Legal Society harassment. “They know who all the what are known as “Good Neighbour “Your 15 days are up and homeless people are with the tote Agreements” (GNAs).284 Municipal it’s minus 40. What are bags (13),” she said. “They know that governments across Canada put you guys going to do?” the shelters are giving out tote bags GNAs into play as part of their and we are always getting our clothes response to public concern about thrown out, so we pack our stuff services such as shelters. GNAs often He went on to explain that while the around, so now they just randomly include specific commitments by the rules around length of stay might search us all the time.” service provider to take action on any make some sense in theory, given issues or concerns identified by local the affordable housing crisis in his In another community, a woman told residents. us about the shelter where she stays community, they make little sense in when the temporary 24-hour shelter Good Neighbour meetings, practice. is not in operation. That shelter, like sometimes mandated as part of They’re all run by [faith-based others we heard about in the course the agreements, are often unsafe service provider], but each shelter of our research, requires residents to for those who use the service in has its own individual rules. And leave after breakfast each day. While question to attend because service- this one here you get, I think, she shared that the staff are “lenient” users and their presence in the five days. And then by the fifth with her because of her physical community is often conceptualized day you have to have had an health condition and allow her to as a “problem.”285 In this way, the interview with one of the fellows hang out in front of the shelter during needs and realities of people who out of the office. And you have to the day, others are not extended the rely on shelters are not considered by show them that you’re working same courtesy. “Other people, they the community in which they reside; towards something other than kick out (397),” she says. this is yet another example of how just staying there until your time’s essential services are not working up, which is, I mean, it’s good We found this situation repeated to meet the needs of the people for because it motivates you to try itself in another municipality, where whom they are designed. participants reported that shelter and find housing and whatnot, but unfortunately the housing staff spent time looking for residents Rules on Length of Shelter Stays: situation here—you might just go offsite during the day to ensure that Reasonable in Theory, not in beat your head against the wall they are not spending daytime hours Practice too close to the shelter: because there’s nothing out there. Not only are there limits on the hours – 175 At [shelter], you are not allowed shelters are open each day, some to be anywhere within a two- shelters also have restrictions on how In another community, people block radius. They do grounds many nights in a row people can stay reported that the maximum length checks and they actually leave or how many nights they can stay in a of time they could stay in the shelter the property to do their grounds given month. was 15 days. checks. They walk all the way When asked whether this was around the [big box store], around One man explained the rules around because the shelter was at capacity, the front of the business, and lengths of stay at the shelter in his “I don’t know (170),” one participant around an entire block. And then community. replied. “That’s just the policy in they go an entire block up, around You have to have a plan in town. Like, okay, your 15 days are up the hardware store. So, they’re place…as far as I know it’s 30 and it’s minus 40. What are you guys not even on their own premises. days maximum…but there are going to do?” These are the [shelter] staff that extenuating [circumstances] does this. If you’re sitting, hanging where, like I know there’s one lady He explained that the application out, and just chilling anywhere, where she’s waiting on furniture. of the rule did not seem to be they bar you. They kick you out. She has housing and she’s waiting contingent on whether there was You can’t be across the street, on like a bed and stuff. So, her 30 a waitlist for beds. After being out down the road, anywhere. – 45 days is up but she’s there an extra of the shelter for a couple of days, (focus group) two days or something. There’s people were allowed to return. The ineffectual redundancy of this rule Many shelter operators are asked by another fellow and he was there was not lost on participants. municipal governments, surrounding an extra eight days, and they gave him the boot last night, so he’s residents’ associations, business Shelters were never intended to be sleeping in a tent now. – 175 improvement association, and other permanent housing solutions, but community groups to enter into they have become just that for a
284 Geoff Cross & Bernie Pauly. 285 Geoff Cross & Bernie Pauly.
PROJECT INCLUSION 111 growing segment of BC’s population. A woman in her fifties explained the harm reduction and how can that The growing, unsustainably long- rules at her local shelter, the only one be harm reduction when they’re term reliance on shelters, intended in her community. “No paraphernalia, taking our clean rigs?…Especially if to be temporary places to stay while right, and you can’t be high or drunk it’s in its wrapper and stuff…I guess people get back on their feet, is or anything coming in…then you you have to be respectful and not the result of intersecting systemic have curfew. You have to be in by use it in some places, but…I mean influences. It is the result of income- nine and you have to be gone by a lot of people won’t stay there assistance allowances for housing whatever time it is in the morning, I because they’re alcoholics or drug (known as shelter allowances) think it’s eight or nine (256),” she said. addicts, right? – 181 that fail to reflect the price of rent As has been discussed throughout for even the most undesirable this report, people’s experiences Banning or confiscating harm accommodations. It is the result of with homelessness can intersect reduction supplies from shelter low vacancy rates in both the public with substance use. Because of the users does little but put people at and private markets. And the problem sobriety rules at this shelter, this risk of further health-related harms. is perpetuated by the stigma and woman has now been banned. “I Shelter rules that prevent people discrimination that people experience OD’d [overdosed] in the shelter…I from bringing harm reduction in the rental market and the search used outside of the shelter, right, and supplies inside have serious impacts for employment if they receive then I as soon I used I went directly on shelter users’ health and safety. income assistance, especially those in and then when it hit me because As some participants explained, it who have no fixed address or who I don’t do IV right I do subcute,286 so also has public safety implications. use the shelter as an address. it takes about 20 minutes. So when Some people reported hiding harm it hit me, I was already in the shelter reduction supplies or disposing of House Rules and Sanctions and I dropped, right (256),” she them improperly because they did explained. “So, they said, ‘No, you not want to get caught bringing them Restrictions on the hours of the day can’t come back for 30 days or 90 into the shelter. that a person can be inside a shelter days something like that.” and how many nights they can Discarding Belongings stay are only a few of the rules that While it is clear that the rules at her In one community we visited, study govern the lives of people who rely local shelter are not meeting her participants expressed concern that on shelters. The people we spoke needs, or the needs of many people shelter staff were regularly throwing with for this study who use shelters experiencing homelessness in her away all of their personal belongs, expressed understanding about why community, she remains conciliatory. not just harm reduction supplies. It some shelter rules are necessary; “It’s actually really good. Some of was a major source of stress that was they acknowledged that shelters are the people that run it aren’t, but leading to deep distrust between shared spaces and could appreciate regardless most of the times, it’s shelter users and staff. that shelter operators are making really good (256).” Some people were do with limited staff. At the same supportive of, or at least resigned to, One participant told us that the time, they expressed frustration that the rules in place at their local shelter. regular practice of discarding shelter shelter rules impacted their personal However, in many cases, these rules users’ belongings was especially hard autonomy. As one participant are not aligned with the needs of on women. “There’s a lot of women explained, “Some of [the rules are] a local shelter users, and even work that have a hard time finding clothes little ridiculous, but I can understand at cross purposes with the goal of (326),” she said. She added that them. Like, the one rule that they’ve keeping shelter users and the broader attempts to get belongings returned just come up with is they only let you community safe. would result in losing access to the in the door on the half hour and on shelter. “If you try to get them back the hour. And that sucks when you Restrictions on Health Care you get kicked out of [shelter].” show up five minutes late and you’re Essentials stuck outside for 25 minutes (175),” Shelters exist to provide a temporary Shelters are the hubs for harm they said. “But on the other hand, housing solution for people with reduction supplies in some there’s only two people running the no other options. To discard what communities. In other communities, place. They’re trying to keep an eye few belongings they possess does however, people reported not being on 20 people, and if they’re running nothing to acknowledge their dignity, able to keep harm reduction supplies to the front door every 30 seconds to autonomy, and humanity. let in the next smoker, how are they at the shelter. going to get anything else done. So, I The shelter will take even clean mean, I understand it.” rigs and stuff. And you know, like, they’re supposed to be into
286 A subcutaneous injection is administered as a bolus into the subcutis, the layer of skin directly below the dermis and epidermis, collectively referred to as the cutis.
112 Pivot Legal Society Sobriety “I can’t sleep anywhere—anywhere. They say, ‘Well, we We heard stories from people who have the [main shelter] and [other shelter],’ but by the had been banned from shelters as a time I walk down there, will there be one of those 80 result of intoxication. Many shelters beds available? No. Am I actually going to allow you to have rules related to intoxication that span the gamut, from using on site treat me like a child and strip me of even more of my to being identified by staff as being dignity and humanity? No. Am I going to walk away under the influence of a substance from that place with the stigma attached so everybody while on the premises. These rules, that sees me is now all of a sudden associating me with which can lead to a ban for a night, a whatever it is they associate the shelters with? No, I’m ban for a specific period of time, or an indefinite ban, proved to be a major not going to do that to myself. There’s no way.” – 332 barrier to shelter access for many study participants. they won’t let me in the shelter, hassled by police, bylaws officers, or When asked how often he sleeps where else am I supposed to go?’ private security for sleeping in public outside, one man explained that – 395 space explained his rationale for as a result of vague shelter rules continuing to stay outside. Imagine getting kicked out of a related to intoxication, he needs shelter on a cold night and bedding I can’t sleep anywhere—anywhere. to sleep outside about twice a down on the street, only to They say, “Well, we have the [main month. Sleeping outside, he told encounter a bylaw officer telling you shelter] and [other shelter],” but us, is especially difficult for his that you can’t stay there. Even with by the time I walk down there, will partner, “with her addiction. She’s on nowhere else to go, people persist there be one of those 80 beds methadone and she’s got a problem and survive. available? No. Am I actually going with crack…being on the streets, it’s to allow you to treat me like a always there, and it’s really, really hard child and strip me of even more for her (266),” he said. “She starts “Choosing” to Forgo Shelters of my dignity and humanity? No. smoking and when she does it and Accessing shelter can be a matter Am I going to walk away from that she takes her methadone and she of life and death, especially in place with the stigma attached so flails so…But when she’s flailing a little extreme weather. Several participants everybody that sees me is now all bit she’s not hurting and bothering explained the impact of not being of a sudden associating me with nobody, the [shelter] workers are like able to sleep inside, even for a night whatever it is they associate the ‘No, you are out of here. Come back or two. One woman told us about shelters with? No, I’m not going to tomorrow.’” getting kicked out of her local shelter do that to myself. There’s no way. because she was intoxicated. To – 332 Along with obvious health and safety stay safe overnight because she was concerns, denying a person shelter alone, she stayed close to the shelter For some people who experience due to intoxication raises human and in a central area so she could anxiety and other mental health rights issues, since BC’s Human scream if she needed help or press challenges, the conditions in the Rights Code prohibits discrimination the shelter’s emergency button (312). shelter cause more distress than on the basis of physical or mental Others also told us how being unable sleeping outside: disability, with addiction being to access shelter for a night put their classified as a disability under s. 8 of personal safety at risk. Interviewee: 287 the Code. It is important to note There is just way too much shit in that having to sleep outside opens Failure to access shelter can also there…I want to choose who I’m people (like the woman denied open people up to harassment and around. shelter access due to intoxication) up criminal sanctions, since police, to health issues related to the cold private security, bylaw enforcement Interviewer: and to criminalization because they officers, and even members of the Do you feel like that might be have nowhere else to go. public patrol spaces where people partly because you’re saying you could rest or sleep, prevent people had a lot of anxiety. They say that you can’t come in from setting up encampments, and until you’re sober, so I had to sleep seize or destroy belongings. Interviewee: outside a lot…It’s hard. It’s getting Yeah, big time. – 416 cold at night…They come and they Yet for some people who took part kind of bother me. They say, ‘You in this study, staying in a shelter is Some shelters force couples to can’t be here.’ And I said, ‘Well, not an option. One man who is often separate for the night; many study
287 Government of British Columbia, Human Rights in British Columbia: Discrimination against people with physical or mental disabilities, (2016), online: https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/human-rights/human-rights-protection/disability.pdf.
PROJECT INCLUSION 113 participants identified this policy as by policy and stigma. Changing One respondent in a small a major deterrent from staying in policy and how we treat people community with very limited services shelters. In order to fully understand experiencing homelessness as a described her experience seeking out the implications of the widespread society, then, will contribute much to harm reduction supplies from the lack of couple-friendly shelter spaces, lightening their impact. hospital. it is important to recognize that these impacts go well beyond a situation HOSPITALS We went because my ex- where two people want to spend a boyfriend, we sent him up there to When we began this study, hospitals night together. As the homelessness get some harm reduction kits for were not an area we were planning to crisis continues to escalate, more us…And they told them they didn’t explore, but issues related to people’s and more long-term couples are have any. And then another time experiences in hospitals came up experiencing sustained periods of he went back up there, they told so clearly and consistently that they homelessness. Many of the couples him to sit down and wait and but could not be ignored. that took part in this study felt that they were on the phone calling the cops. So he took off. – 108 having to separate every night had Homelessness entails a daily more negative impacts on their struggle for the essentials of life, and Similar concerns arose in relationships than sleeping outdoors. homelessness has a direct impact communities across BC when people One woman put it simply: “I’ve been on health. Shelter conditions can who were homeless and people who with my spouse for 17 years. So when result in exposure to infections and use substances attempted to access we were in the shelter I had to be for those who spend their days care for health conditions that would away from him (181).” outside, long periods of walking and lead anyone to seek treatment in a standing and prolonged exposure No-pet policies also present major hospital. of the feet to moisture and cold barriers to access to many people can lead to cellulitis venous stasis experiencing homelessness, and fungal infection.288 As a result, including numerous Project Inclusion people experiencing homelessness, participants. Again, it is important In cases where there whether they are staying in a shelter to recognize that pets are family or sleeping outdoors, have unique was no clear diagnosis, for some people who experience and pressing health care needs. participants told us that homelessness. They provide a source hospital staff sometimes of connection, critical emotional Even under the Canadian system refused to believe that support, and in the case of dogs, of universal health insurance, many physical safety. people experiencing homelessness people identified as do not have access to a general homeless or as substance “We always say we’d rather be in the practitioner or even a health card users who were actually bush with our cat than downtown due to the barriers to maintaining [in a shelter] (90),” one participant sick or injured. possessions while living outdoors explained. “We couldn’t justify our or in shelters. It is also difficult to cat sleeping out in the cold and we’re make or keep appointments while in there sleeping all warm and stuff. I living outdoors. love my cat.” At first, one woman was nervous to tell us she used illicit drugs. Once she Health issues that are caused or Our research shows that people’s opened up, however, it became clear compounded by homelessness, experiences with shelters are at odds that her local hospital’s response to combined with lack of access to with the popular misconception her status as an illicit substance user physicians, telephones, and safe that shelters are widely accessible, was having a profound effect on her places to rest comfortably make available, and welcoming to anyone access to appropriate health care, people experiencing homelessness in need. When considering how to despite her critical health issues. particularly likely to use emergency improve BC’s shelter system, it is health services289 and/or to require important to note the intersecting This last time I was in the hospitalization. stressors that shape the lives of hospital with my leg, my doctor recommended I go to the hospital, people experiencing homelessness. Across the province, people felt that so I went there…the staff in the Those stressors are not inevitabilities their local hospitals discriminated emergency was so mean to me, or the result of individual against people who use substances. shortcomings; they are driven like I couldn’t believe it, they were
288 C. James Frankish, Stephen W. Hwang & Darryl Quantz “Homelessness and Health in Canada: Research Lessons and Priorities” (2005) 96:2 Canadian Journal of Public Health / Revue Canadienne de Santé Publique at 23. 289 Our findings are in keeping with the results of the 2017 Metro Vancouver Homeless, which found that 50% of the respondents had used an emergency room in the past year; 40% had used the hospital for non-emergencies; 39% had used an ambulance; and, 39% had used a health clinic.
114 Pivot Legal Society him in the hospital here. And then they moved him up to [a larger hospital] and he went all the way without painkillers. And then they wanted to take X-rays in the morning and as they were taking X-rays, I guess his appendix burst because of all the pressure…You ask anybody who comes in here if they will go to the hospital, every single one of them will say no. – 181
Project Inclusion participants made it clear that BC hospitals are also poorly equipped to deal with the reality that people with addictions also have legitimate pain issues. Some are also failing to accommodate patients in withdrawal.
One person described their experiences with pain medication and dope sickness while in hospital. just so rude that they actually had nowhere would help me. I’m still “They don’t like to give me anything… me crying and I left and I went to barred from all services of the they’ll pump me full of valium and their manager. I put in a complaint [local shelter]…They barred me saline and few times I’ve been in with their manager and I don’t indefinitely two weeks before I was there, they’ll give me two milligrams know what happened with the scheduled to start my last round or five milligrams of morphine every two nurses that were being that of chemo…and they knew I was two hours, and which isn’t even way towards me. But I said, “I’m scheduled to start chemo, and enough to keep off the dope sickness leaving,” and the manager says, they barred me indefinitely…I did a (396),” they said. “Last time I was “You can’t leave, it’s your health full round of chemo—of radiation— in there, I had to shoot up and they that’s the most important.” I said, living in a fucking tent. – 153 caught me shooting up and then they “I don’t care, I’m leaving. I don’t kicked me out…I was on intravenous want to deal with these two and In cases where there was no clear Vancomycin for blood poisoning, I’m leaving”…She accused me of diagnosis, participants told us that yeah. And I had an abscess on my being outside using drugs for an hospital staff sometimes refused spine too, and they kicked me out.” hour and a half. Some lady in the to believe that people identified as waiting room stuck up for me and homeless or as substance users who said, “No she was only outside to were actually sick or injured. “I did a full round of have a cigarette and come back If they know that you’ve used chemo—of radiation— in.” And they still continued to be or whatever, they red-flag you. ignorant to me. – 397 living in a fucking tent.” So, it pops up on the computer – 153 This woman was one of three study that you’re a drug addict or that participants who reported that they you have addiction issues. So, were dealing with cancer treatment basically…they’re done with you while homeless. then…they started treating [you]… There is strong evidence that these at first if you look okay and you’re experiences are compounded In another woman’s case, the hospital not sick or looking rough, you for Indigenous patients. Several was either unable or unwilling to know, like they’re okay, and they’re Indigenous participants in this project provide a bed during treatment. polite. They get you into a room reported that they, a close friend, or fast. They come and see you every family member had been ignored or My last round of chemo I did living five minutes. And then as soon sent away from the hospital despite in a tent behind [business]. My as they find out you’re an addict, being in serious medical distress. husband thought I was going to they can leave you sitting for six BC-based research indicates that die, the hospital wouldn’t keep me hours sometimes…my boyfriend Indigenous peoples face multiple because I was an active addict, had appendicitis and they had barriers in their quest to receive the hospital won’t keep me, and
PROJECT INCLUSION 115 Several Indigenous participants in this project reported that they, a close friend, or family member had been ignored or sent away from the hospital despite being in serious medical distress. health care.290 For example, a recent When compared to non-Indigenous THE NEED FOR PEER-DRIVEN study published in Social Science Canadians, Indigenous people SERVICES & Medicine found that Indigenous experience disparities in “health People who took part in this study people in the Downtown Eastside status, morbidity, and mortality had a lot of positive things to say 295 face stigma when accessing health rates, and health care access.” about some of the service providers 291 care, including the denial of The racism that Indigenous people who made real differences in their painkillers when in intense pain. face in the health care system leads lives. They also expressed that Patients attribute this to the doctor’s some people to avoid the system government and non-profit services assumption that they are addicted altogether, further endangering their often felt like unsafe, inaccessible 296 to painkillers and seeking to obtain long-term health. Racism in health institutions. them.292 This perspective from care settings can also be deadly. patients is corroborated by some There have been several high-profile One participant explained how Indigenous health care workers, incidents of Indigenous people in it feels to go into a government including a nurse who recently told Canada dying after it was assumed office and engage in self-advocacy. CBC’s The Current that she has heard incorrectly that they were under the “Government offices are horrible, like of surgeons telling nurses during influence of alcohol.297 I actually trip over my tongue (416),” surgery that Indigenous patients she said. “I can’t talk in them.” have different pain receptors and that The contemporary experiences they do not require the same level of of Indigenous people, people Even where services have been narcotics as a result.293 experiencing homelessness, and designed specifically for people who people who use substances in use drugs, distrust, criminalization, When accessing emergency health hospitals across BC demonstrate and a history of experiences services, Indigenous people are often the harmfulness and persistence of of stigma can make services presumed to be intoxicated and thus stigma and stigmatizing behaviours. inaccessible for people like this their medical needs are discounted. As we’ve stated elsewhere in this woman, who offered the following In 2015, Victoria’s Times Colonist report, this is not a simple case response when asked if she used the reported the story of an Indigenous of “a few bad apples.” The stigma local Overdose Prevention Site. woman who had a seizure and experienced by people who use banged her head. Her boyfriend at substances and people who live in Interviewee: the time called an ambulance. The public space, alongside the racism No. No thanks. woman recalled that her boyfriend that Indigenous people continue to was assisting her down the stairs. experience at the hands of people Interviewer: When they reached the bottom of who have a duty to provide them No, this is probably a dumb the stairs, one of the paramedics who care, is an unacceptable outcome of question, why not? had arrived on scene said loudly, “oh generations of legislated racism and Interviewee: great, another drunk native we have stigmatizing policy that we must all Using drugs around people who 294 to pick up,” the woman recalled. work to dismantle. don’t use drugs, I’m sorry, but I just
290 Ashley Goodman, et al. “’They treated me like crap and I know it was because I was Native’”: The health care experiences of Aboriginal peoples living in Vancouver’s inner city” (2017) 178 Social Science and Medicine 88. 291 Ashley Goodman et al. 292 Ashley Goodman et al. 293 Piya Chattopadhyay “The Current” (March 2, 2018), CBC, 7. 294 Sarah Petrescu “Health system struggles with racism, research shows,” Victoria Times Colonist (February 21, 2015), online: http://www.times- colonist.com/news/local/health-system-struggles-with-racism-research-shows-1.1770821. 295 Ashley Goodman et al. 296 Ashley Goodman et al. 297 See for example: Hillary Bird, “Inuvialuit woman says uncle’s stroke mistaken for drunkenness.” CBC News (August 15, 2016), online: http://www. cbc.ca/news/canada/north/hugh-papik-stroke-racism-1.3719372 and CBC, “Ignored to death: Brian Sinclair’s death caused by racism, inquest inadequate, group says.” CBC News (September 19, 2017), online” http://www.cbc.ca/news/canada/manitoba/winnipeg-brian-sinclair-re- port-1.4295996.
116 Pivot Legal Society can’t do it. Yeah, it’s just strange to me, very strange. – 416
In some communities, peer-run services—services operated by people with lived experience of poverty, homelessness, and substance use, such as peer-run needle exchanges or peer-run groups for people who use drugs—are not widely available or understood. When we explained the concept of such services to her, she expressed more openness to making use of them.
In other communities, people we heard from were already working as peer-service providers. However, barriers like shelter rules against carrying harm reduction supplies were making it hard for them to do their jobs.
I used to carry supplies, hand them out, because I was rig digging298 through [peer outreach service] and I was homeless. They knew that I had supplies on me and they wouldn’t let me in [the shelter]…I was banned…So it was a catch 22, right. I’m just handing supplies out…I wasn’t implementing nothing. I am just here, if you need supplies I am here. I’d rather see you use safe supplies than bad supplies, like using the same rig or using the same shit over and over. That is There was a notable interest supplies safely, with supports close not good, that is not healthy. – 165 in establishing safe, inclusive, at hand. community driven spaces for people In other cases, we heard that rules to find community, solidarity in their If I ever won a lottery, I would like around employment are preventing shared experiences, and protection to have a place where people people with lived experience from from the elements. would go [to] like two different getting involved in service delivery. floors, one where they could use… There’s a lot of street people that safely, have a nurse there and all “I wish I could become staff, but use drugs, and they don’t want to that, and a place where they could because I don’t want to stop [using] stay indoors, and I always say they go without using…That way they marijuana, they don’t want to give should have a gigantic tent with could interact with each other but me a job (289b),” one participant told heaters in there, and they could be more respectful and…in [a] safe us. “They need to do a better job of all come there and be safer…you and clean environment. And clean hiring people who have experience be together and do their drugs up after themselves, like if they living out.” together…that would help a lot. – use there’d be a room where they As we spoke to people around the 326 could go and there will be things for needles. – 71 province, a vision emerged for the Participants also expressed a desire types of services that people who for an inclusive, one-stop facility in Back in front of the shelter that have experienced poverty and social which people could use substances opened this chapter, the woman exclusion would like to see in their and dispose of harm reduction who shared her experiences of communities. homelessness with us described two
298 “Rig digging” is a term for locating and safely disposing of used syringes.
PROJECT INCLUSION 117 things she’d like to see change in the that services and systems are In order for all of this to happen, we realm of service provision. “I think accessible and navigable for those need more financial resources, but that there should be more advocates who need them most, and treat we also need to undo the underlying (397),” she said. “And they should be people in need with respect. Livable stigma that informs everything from more lenient with the food [bank].” income assistance rates, more social punitive income assistance policies to housing, and health care options that the negative experiences people have In her words, we hear two simple work for people living with substance with service providers during a health themes that should guide services use and poverty, are also essential. crisis. around the province: make sure
Recommendations
1. The Province of British Columbia must amend the Human iii. ensuring that hospital social workers are resourced Rights Code, RSBC 1996, c 210 to prohibit discrimination and and directed to work with patients in need to apply harassment based on social condition. for disability benefits. 2. The Ministry of Mental Health and Addictions and the 4. The Legal Services Society of BC must provide legal support Ministry of Health must improve the ability of BC hospitals for appeals where a person has been denied income to meet the needs of people living with the effects of assistance or disability assistance. substance use, mental illness, and/or homelessness by: 5. The Ministry of Housing and Municipal Affairs must a. auditing experiences in hospitals, beginning with an immediately improve the number and accessibility of shelter analysis of people’s experiences where they have been options to ensure that everyone in BC always has access to turned away from emergency rooms or discharged and a physical location where they can sleep, store belongings, where there have been negative health consequences; and attend to personal care and hygiene in safety and without threat of displacement or sanctions. To do so they b. working with people with lived experience to audit must: provincial standards for effectively managing substance withdrawal in hospital settings; a. work in partnership with BC Housing to reinstate nightly turn-away counts at shelters and use data to ensure that c. ensuring that all hospitals offer supervised consumption there are adequate shelter beds to address the level of services to patients; and need in each municipality; d. working with the Ministry of Municipal Affairs and b. with the exception of temporary Extreme Weather Housing to create transitional housing options to Response shelters, recognize that overnight-only ensuring that sick and injured people are not released shelters are untenable for residents and provide funding from the hospital to the streets or to emergency shelter. to expand shelter hours; and 3. The Ministry of Social Development and Poverty Reduction c. provide shelter residents an accessible and independent must make immediate changes to BC’s Income Assistance complaint process. and Disability Assistance programs including: 6. All government actors and health care providers must a. increasing income assistance rates to the Market Basket recognize the specific and indispensable expertise of people Measure299 and indexing them to inflation; with lived experience. Increase peer-run and peer-delivered b. reviewing the processes that are currently in place services and peer-support positions within government for reporting “welfare fraud” to provide greater services by: accountability and ensure that people receiving income a. developing a provincial advisory board of people with assistance are not denied survival income without due lived experience of homelessness for BC Housing; process; b. establishing provincial best practices for engaging c. increasing access to in-person services for income people with lived experience of poverty, homelessness, assistance and disability applicants; and and substance use in service delivery modelled on d. ensuring that people living with disabilities can access GIPA (Greater Involvement of People living with HIV/ disability support by: AIDS), MIPA (Meaningful Involvement of People Living i. simplifying the application process to reduce wait with HIV), and NAUWU (Nothing About Us Without Us) times and lessen reliance on advocates; principles; ii. providing provincial guidelines for doctors/service c. collaborating with peer-led organizations to audit all providers on how and when to fill out disability provincial services (hospital, health, income assistance, forms; and shelter, housing) to identify and fund opportunities for peer engagement in service provision and planning; and d. developing a model for peer-involvement in the design and execution of homeless counts.
299 Statistics Canada, Market Basket Measure (MBM) thresholds for economic families and persons not in economic families, 2015 (Statis- tics Canada: Census Division:2017), online: https://www12.statcan.gc.ca/census-recensement/2016/ref/dict/tab/t4_5-eng.cfm.
118 Pivot Legal Society PART THREE: MAKING STIGMA VISIBLE Why a Stigma-Auditing Process Matters for BC
At the outset of the Project Inclusion, our goal was to connect with people who currently live in public space or rely on public space for the necessities of life, as well as with people who are criminalized as a result of poverty and substance use.300 We connected with them in order to develop a grounded understanding of the laws, policies, and practices that intensify the harms associated with substance use or poverty, and undermine public health measures.
Through our research, individuals shared a range of life experiences with us. We heard from people who have been in and out of prison countless times and people who have never been convicted of a crime. We met people who had lived on the streets and in shelters since their teens, and people who were experiencing homelessness for the first time in their 40s or 50s. Some people who participated in this study have injected illicit opiates every day for decades, while others never use psychotropic substances besides drugs prescribed by their doctor or alcohol purchased from the local liquor store.
300 We make a distinction between peo- ple who are criminalized as a result of substance use and people who use illicit substances, because there are groups of people who use illicit substances who are not labelled as criminal and are at low risk of experiencing criminal sanctions as well as groups of people who are criminalized as a result of their alcohol use.
PROJECT INCLUSION 119 Through our conversations with this study and the wide range of laws characteristics, such as being these diverse, insightful participants, and policies that we discuss in this diagnosed with a particular illness or we heard about how people become report: stigma. being an Indigenous person. homeless. We learned about the far-reaching impacts of not having Stigma is a widely used term that Stigma is not inherent to a particular 302 a private residence in municipalities means different things to different behaviour or attribute. It is across BC. We heard about the people. We begin this chapter with contextual and can shift over time. realities and layered complexities of an overview of how we understand For example, there used to be what it is to be a person who uses stigma and its component parts. significant stigma attached to “living substances while living in poverty. Next, we look at questions that in sin” and little stigma attached We also examined the frequency we can ask to identify stigma. We to driving while intoxicated. The and nature of interactions between then move on to look at processes amount of stigma attached to a people who live in public space and through which stigma can shape specific behaviour or characteristic police, bylaw officers, and private legislative agendas and become can depend on other intersecting security. We looked at the role court- embedded in our laws and policies. attributes; consider the relative imposed conditions play in shaping We work with a composite case study stigma experienced by the man and the lives of people who took part based on issues that we have seen in the woman if they were to conceive in this study, as well as the barriers a number of municipalities to explore a child while “living in sin.” Because people face in accessing income how we can audit for manifestations stigma is culturally constructed, it is assistance, shelter, and health care. of implicit and explicit stigma in often difficult for those living in the public dialogues and ultimately in our society out of which it arises to see it, law and policy decisions. Finally, we especially if one is privileged enough make recommendations with an eye not to experience that stigma directly Because stigma is to operationalizing a stigma auditing on a daily basis. culturally constructed, process in BC. As well as addressing it is often difficult stigma in future decision-making, it Stigma can be particularly difficult to identify and address where for those living in is also necessary to acknowledge the extent to which stigma is bound up the law does not protect against the society out of with our existing laws and policies. discrimination based on the attribute which it arises to see in question, as is the case for people it, especially if one is WHAT IS STIGMA? who experience discrimination on privileged enough not to the basis of “social condition” in Stigma has historically been BC.303 Social condition is defined in a experience that stigma conceptualized as an attribute, variety of ways in various Canadian directly on a daily basis. behaviour, or reputation that is jurisdictions. We recommend that 301 socially discrediting. Though BC amend the Human Rights Code they used different language for it, to adopt the following definition of people who participated in this study Throughout this report we social condition: Inclusion in a socially repeatedly describe the experience make many specific policy identifiable group that suffers from of feeling “socially discredited” as recommendations based on what social or economic disadvantage a result of their reliance on public we learned. However, we would on the basis of poverty, source of space and/or their substance use. be remiss to stop there. Improving income, occupation, housing status, While many BC residents, including the health, safety, and well-being level of education, or any other some elected officials, seem to be of everyone who took part in this similar circumstance. comfortable using language that study requires more than identifying explicitly discredits people who In her 2017 book Discrimination individual laws, policies, and are homeless and/or people they as Stigma: A Theory of Anti- practices that are leading to harmful perceive as drug users, it is important Discrimination Law, Iyiola Solanke outcomes. It requires that we address to note that many participants conceptualizes stigma as a “mark” the mechanism that underlies the also experienced being discredited and lays out a series of ten questions experiences of all the participants in as a result of other, intersecting to determine whether a particular
301 Irving Goffman, Stigma: notes on the management of spoiled identity (Englewood Cliffs, NJ: Prentice-Hall, 1963). 302 In their 2001 article “Conceptualizing Stigma”, Link and Phelan look at stigmatization as a process involving five components: • labelling (constructing a cognitive category and attaching it to a person); • stereotyping (attaching beliefs to a label that is based on misinformation or a lack of information. This mistaken belief can be widely held, and even considered to be “common sense”); • separation (distinguishing between “us” and “them”); • status loss (“they” are not just different than us, they are less than “us”); and • discrimination (unjust or prejudicial treatment- either individual or structural) 303 Unlike some other Canadian jurisdictions, BC’s Human Rights Code does not protect against discrimination on the basis of social condition.
120 Pivot Legal Society characteristic is “marked” by stigma If the case can be made that a mark not. Changing attitudes have also in a particular context.304 Working and the meanings attached to it are led some Canadians to distinguish through Solanke’s list of questions arbitrary, it is possible that stigma is between people who use cannabis is instructive for revealing implicit present. and so-called “drug users” who use stigma. cocaine, methamphetamine, opioids, 305 On first read, “drug user” may or other drugs, despite cannabis’ 1 . Is the mark arbitrary or does it seem like an objective category legal status prior to October 17, 2018. have some meaning in and of itself? or characteristic. Upon closer The federal government’s decision examination, however, it turns to legalize marijuana is shifting the This question draws our attention to out this category is not obvious, legal status of people who possess the way we categorize and talk about historically consistent, or cannabis, making it more likely that people and whether the categories universally applied. For example, in cannabis users will be spared the we attribute to people are objective, Canada people who use cannabis mark “drug user” while leaving it as well as whether the meanings and recreationally have historically been in place for people who use other connotations associated with those marked as “drug users” while people substances. At the same time, some categories are rationally connected. who use alcohol recreationally have long-term opioid users are spared the label “drug user” because their opiates are prescribed. Upon review, the category begins to feel less conceptually clear.
A consideration of the arbitrariness of a mark inevitably leads to questions about the validity of any meaning attached to it.
2 . Is the mark used as a social label? Labelling occurs when a “mark” takes on a set of meanings and values beyond the objective attribute or behaviour being described, and where a mark comes to be understood as an essential element of a person’s identity.
“Drug user” is a label that is sometimes applied to socially and economically marginalized people who rely on public space, even if they never or rarely use illicit drugs or are in a treatment program. At the same time, more privileged people can often actively use illicit substances without ever having the morally-loaded label “drug user” applied to them. The label “drug user” also carries with it connotations that extend far beyond ingesting a particular substance. Characteristics and meaning attached to the mark “drug user” include unemployment or poor work ethic, vector of contagious disease, association with violent crime, and a lack of concern for children, seniors, and community
304 Iyiola Solanke, Discrimination as Stigma: A Theory of Anti-Discrimination Law. (Oxford: Bloomsbury, 2017). 305 In many cases, labels such as “bum” or “junkie” are substituted for “homeless” or “drug user”.
PROJECT INCLUSION 121 safety. As a medical and public health That legacy is evident in the present- rights statutes, Canadian courts model of drug use becomes more day experiences of participants in this and lawmakers have tended to rely prominent, people who use drugs study who contend with restrictive on the concept of immutability— are more and more often cast as anti-camping bylaws, bylaws that whether the source of discrimination “sick,” mentally ill, and/or incapable of prevent people from sleeping cannot be changed or can only be making their own decisions. in vehicles, and restrictions on changed at excessive cost, such as panhandling. changing religions (constructively 3 . Does this label have a long immutable).311,312 history? How embedded is it in 4 . Can the label be “wished away”? society? Considering whether the label can In assessing the ‘legitimacy’ of be “wished away” creates space to Another example of a mark that is inequality or privilege, many acknowledge that individuals who used as a social label is “homeless.” Canadians make a conscious or have been labelled “homeless” While this label has shifted over time, unconscious distinction between or “drug user” can, and often do, “homeless” and other labels have an ascribed status and an achieved cease to be homeless or stop using long, deeply entrenched histories. For status. Ascribed status refers to substances, but that changing their example, the first English vagrancy a position into which a person is situation is by and large not within statue, The Statute of Labourers, born, such as race. Achieved status their control. It also recognizes that was passed in 1349 and made it an refers to a position that a person the label may persist even after they offence to give alms to someone can acquire, such as educational have found housing or ceased using a 306 capable of work. By the 1700s, the attainment or professional particular substance. fact of being homeless and sleeping credential.309 However, a careful look outdoors or in places not designated at demographic trends suggests 5 . Is the label used to stereotype as housing was criminalized through that there is significant overlap those possessing it? an ever-expanding set of vagrancy and influence between the two offences.307 categories. For example, while In order to determine whether the rate of Indigenous youth in BC there are stereotypes attached to Elements of the British Poor Law who graduate from high school is a specific label, it is useful to begin and Vagrancy Law (along with many increasing, in the 2016/2017 school by reflecting on our own cultural people convicted under those laws) year Indigenous students had a knowledge to explore commonly held were exported wholesale to colonies graduation rate of 66% compared perceptions about people targeted 308 around the world. In countries like to a graduation rate of 84% for all with a specific label. By attempting to Canada, where British laws were students in the province.310 High conjure up an image of a “homeless incorporated into domestic law, over school graduation is generally person” or a “drug user,” you may be the past several decades there has considered an achieved status, but able to identify widely held cultural been a movement toward abolishing the ongoing impacts of colonialism, stereotypes. vagrancy provisions and ensuring that including poverty, insecure housing, A stereotype is often based on a offences relate to specific activities and disproportionate child welfare knowledge gap, a mistaken belief rather than personal characteristics. involvement in the lives of Indigenous (even if it is genuinely held), an Therefore, as the law evolved, people families, all affect whether a person overgeneralization, or an incorrect labelled homeless were no longer achieves that particular status. accused of vagrancy, but rather of theory of causation. This is one of the enumerated behavioural offences in In determining whether a specific reasons that identifying stereotypes the Criminal Code or local bylaws to characteristic should be protected is difficult: we are often unaware that similar effect. under the Charter or various human we are missing information or that
306 South Africa Litigation Centre and Centre for Human Rights Education, Advice and Assistance, “A Short History of English Vagrancy Laws”, No Justice for the Poor: A Preliminary Study of the Law and Practice Relating to Arrests for Nuisance-Related Offences in Blantyre, Malawi (2013) at 16, online: http://www.southernafricalitigationcentre.org/wp-content/uploads/2017/08/No-Justice-for-the-Poor-A- Preliminary-Study-of-the- Law-and-Practice-Relating-to-Arrests-for-Nuisance-Related-Offences-in-Blantyre-Malawi.pdf. 307 South Africa Litigation Centre and Centre for Human Rights Education at 17. 308 Julie Kimber, “’A Nuisance to the Community’: Policing the Vagrant Women” (2010) 34:3 Journal of Australian Studies 275 at 279, online: doi.org/ 10.1080/14443058.2010.498092. 309 Ashley Crossman, “Sociology: Achieved Status Versus Ascribed Status”, ThoughtCo. (16 April 2018), online: https://www.thoughtco.com/ achieved-status-vs-ascribed-status-3966719. 310 Government of British Columbia, “Completion Rates for 2016/17 B.C. Public School System”, online: http://www.bced.gov.bc.ca/reporting/sys- temperformance/?evidence=completion-rates&sd=048. 311 Martha Butler, “Section 15 of the Canadian Charter of Rights and Freedoms: The Development of the Supreme Court of Canada’s Approach to Equality Rights Under the Charter” (2010) Library of Parliament Background Papers, online: https://lop.parl.ca/Content/LOP/ResearchPublica- tions/2013-83-e.htm?cat=law#a19. 312 See Solanke at 56-57 for a discussion of the evolving debates related to the concept of immutability.
122 Pivot Legal Society our genuinely held belief is mistaken, as a tool, whether consciously or individuals and groups, and it also particularly when it is shared by our unconsciously, to maintain structural creates a powerful cognitive map friends, families, or neighbours. power imbalance. of acceptable and non-acceptable places.315 As such, excluding people 6 . Does the label reduce the 8 . Do the targets suffer with stigmatized characteristics and humanity of those who are its discrimination as a result? services that cater to them is recast as protecting communities from targets? Does it evoke a punitive This report documents myriad ways devaluation by association. response? in which people who are targeted An illustrative way of thinking about with the label “homeless” or “drug whether the label reduces the user” are discriminated against when 10 . Is their access to key resources humanity of those who are its targets using public space, in accessing blocked? is to consider the extent to which services, in interactions with policing One of the core findings of this report people targeted with a specific label bodies, and in the justice system. is that people who are targeted with are dis-individualized. For example, We also learned about the profound the labels “homeless” and “drug over the course of this project, we impacts of that discrimination on user” consistently find their access is found that when one person who has people’s health and well-being. blocked to the most basic necessities been marked “homeless” commits of life. People who participated in a crime in a community, all people 9 . Do the targets suffer exclusion? this study are denied access to food targeted with that label are often banks, public space, life-saving health Exclusion is a recurring theme in implicitly or explicitly held responsible care, shelter, and police protection this report. Participants in this study and targeted for sanctions. due to the labels applied to them. described feeling excluded in parks, Based on this analysis, it is difficult in malls, and in hospitals. Community to deny that people targeted with 7 . Do these targets have low social narratives about homelessness and the labels “homeless” and “drug power and lower interpersonal drug use often revolved around the user” experience stigma. What is status? theme of “homeless drug users” less immediately obvious is how Power is central to the analysis as invaders who have come from that stigma affects people’s lived of stigma313 because it is what elsewhere and do not belong in experiences on a structural rather distinguishes “stigmatization,” a given community. Organized than an interpersonal level. which is a systemic exercise of opposition to services for anyone power, from dislike or prejudice. targeted with those labels is often When an individual business owner For example, if during a city council characterized as preventing “them” moves someone who appears to be meeting a property developer who from establishing a foothold in the homeless from under their awning wants to redevelop an old building is community. in a rainstorm, that act is generally personally named as part of an anti- experienced as an interpersonal This deliberate exclusion is not a gentrification campaign and targeted manifestation of stigma. However, new phenomenon nor one that is with a label they find unfair or hurtful that interaction is situated in a unique to BC. In 1997, Lois Takahashi, based on their class position, it is broader structural context in which a California based professor of urban unlikely that stigma would be at play. income assistance rates make it planning, examined the socio-spatial If, at that same meeting, residents impossible for people to secure stigmatization of homelessness of the low-income housing that adequate housing; institutionalized and HIV/AIDS. She noted that would be torn down to make way shelter rules and resource restrictions human services facilities, such as for the project are also targeted with prevent people from staying indoors shelters that serve people who are labels rooted in stereotypes linked during the day; anti-camping bylaws homeless and living with HIV “have to their socio-economic status, prevent people from setting up their increasingly become flashpoints for there may well be stigma at work. own shelter; and city-wide Crime community opposition.”314 Takahashi The underlying difference is power, Prevention Through Environmental went on to explain that this is in part in this case economic power, which Design (CPTED)316 initiatives cut because stigma creates a definition is closely tied to political, legal, and off places where people can sit or of acceptable and non-acceptable cultural power. Stigma is wielded shelter themselves in public. Those
313 Bruce G Link & Joe C Phelan, “Conceptualizing Stigma” (2001) 27 Annual Review of Sociology at 363, online: doi.org/10.1146/annurev. soc.27.1.363. 314 Lois M Takahashi, “The Socio-spatial stigmatization of homelessness and HIV/AIDS: toward an explanation of the NIMBY syndrome” (1997) 45:6 Soc Sci Med at 903, online: https://www.ncbi.nlm.nih.gov/pubmed/9255923. 315 Takahashi at 904. 316 Crime prevention through environmental design is premised on the faulty “broken windows theory” that by eliminating visual signs of poverty and disorder, major crimes can be prevented. It is presented as an evidence-based process for preventing criminal acts through careful design of the physical environment. In practice, this takes the form of eliminating places and structures were people who are homeless can shelter themselves or rest. City planners and other professionals can get a CPTED Designation. See for example: http://www.cptedtraining.net/.
PROJECT INCLUSION 123 laws, policies, and practices were all Stigma shapes what is defined as a Failure to recognize the role that designed based on a set of widely- legal or governance problem. It drives stigma plays in shaping the legal held beliefs about the root causes what makes it onto the legislative and regulatory landscape does not of poverty, people experiencing and regulatory agenda. For example, just lead to people with stigmatized homelessness, and what makes a many jurisdictions adopt bylaws characteristics feeling bad. Stigma- community safe. meant to address behaviours that driven policy is, at its core, based on arise out of homelessness rather a mistaken, though often genuinely STIGMA IN LAW AND POLICY than the fact of homelessness itself. held set of beliefs about a group of Stigma also shapes the internal people who have been marked with a Stigma is generally understood as logic of legislative and regulatory particular social label. a problem of individual beliefs and solutions; for example, deciding attitudes which may lead individuals to use zoning powers to deny Stigma-based policy is the antithesis to engage in prejudicial behaviours. projects that would house people of evidence-based policy. It leads There is inherent value in identifying experiencing homelessness based to outcomes that are harmful and stigmatizing beliefs and values and on public frustration about people even fatal to people with stigmatized in taking steps to change them. sleeping or attending to other needs characteristics and to the broader However, that work is often seen in doorways, or the sight of people public. As such, we are interested in as distinct from law and policy pushing shopping carts filled with identifying processes through which reform work aimed at addressing belongings. It also impacts the stigma becomes codified in law and systemic inequality. We take the enforcement of laws and regulations. policy and in developing a consistent position that making stigma visible Such stigma can even be seen in way of recognizing it. is integral to shifting laws, policies, the enforcement of bylaws that and decision-making practices that seem neutral on the surface, such as create and intensify harms such as prohibitions on jaywalking.317 ill health, opioid-related deaths, and homelessness.
317 Douglas King, “Pivot and VANDU slam VPD over city bylaw enforcement”, Pivot Legal Society (6 June 2013), online: http://www.pivotlegal.org/ pivot_and_vandu_slam_vpd_over_city_bylaw_enforcement.
Cultural Power STIGMA Economic Power
LABELLING KNOWLEDGE GAP Attaching a name/label to a trait, Stereotypes, misinformation, behaviour, or circumstance faulty causation Attaching that name or label Partial knowledge, to a person or group folk wisdom, anecdotes
LAW AND POLICY PREJUDICE STATUS LOSS Criminal law, bylaws, Attitudes and behaviours public space law Individual and systemic Access to social programs/regulations
Political Power Legal Power
124 Pivot Legal Society Stigma Audit in Action: Community Case Study
Our composite community is a vehicles and a “no drug paraphernalia support the housing project anywhere municipality with approximately 90,000 on city property” bylaw in response in the community unless there is a zero- residents and one homeless shelter to community anger about visible tolerance policy for drug and alcohol use operated by a faith-based organization. homelessness and substance use. and a curfew for residents. A quick look on Craigslist shows that Housed residents and local business During a lengthy public consultation there are no housing options listed owners have since become increasingly process, 48 residents spoke about their in the municipality for $375 a month, vocal in their opposition to the concerns that there would be an increase the income assistance shelter rate for encampment, which they describe as in noise or mess around the housing. a single person. Many of the available a “health hazard,” an “eyesore,” and a They also stated that it will enable drug lower-cost options also explicitly state “crime hub.” They have also publicly used users, lead to needles on the street, “no welfare” or “proof of employment words such as “junkies,” “bums,” and and that it will make the area unsafe for required” in the listing. “losers” to describe members of the local children and seniors. Some argued that it homeless population. A semi-permanent encampment has will attract homeless people from other been established in an abandoned lot BC Housing made funds available for a communities. Three representatives just outside of the downtown core. housing development and identified a lot from the local Business Improvement Some of the 200 homeless residents of for the project, but it required rezoning. Association also spoke out and said that the community use illicit substances, Housed residents of the community the project will hurt business. Two local including some of the approximately 20 immediately started an online petition service providers spoke in favour of the people who stay at the encampment on to pressure the local government not new housing project, explaining that any given night. There have been over 50 to rezone the property. Some local it will house people with longstanding opioid-related deaths in the municipality councillors were quoted in the media ties to the community, including several since the public health emergency was saying that they have heard residents’ seniors and people with disabilities. declared in April 2016, though many concerns and that they agree the site City council voted against the rezoning did not involve people experiencing identified for the development is not an application. The same week, bylaw homelessness. appropriate location because there is a officers seized several tents from seniors centre and public pool nearby. homeless people in the neighbourhood. The City has recently passed restrictions Another councillor said she will never on panhandling and sleeping in
AUDITING FOR STIGMA and associated knowledge gaps, found that respondents from Over the course of our research for misinformation, and prejudices countries with greater acceptance this project, we identified the need that are driving a policy agenda and of homosexuality reported more, for a systematic way for policymakers leading to policy outcomes that not less discrimination against gay, 318 and advocates to identify and intensify disadvantage for people lesbian, and bisexual people. These discuss stigma embedded in existing with stigmatized characteristics while findings suggest that where stigma laws, policies, and decision-making failing to improve public health or and discrimination are highest, they practices. We also need a way to safety. are also most tolerated and least pre-emptively identify situations likely to be visible to those who are Stigma is pervasive and often so not directly impacted. where stigma is informing policy deeply embedded in our cultural development and/or driving the context that it becomes invisible In addition to problems of structural legislative agenda. except to those who are targeted power, stigma entails problems of Auditing for stigma must be more with stigmatizing labels. Even those knowledge, problems of attitude, 319 than a semantic exercise. It is not who are negatively impacted by and problems of behaviour. The just about looking for labels that are it may internalize that stigma. It purpose of a stigma-auditing process overtly problematic or discriminatory is only after significant advocacy is to identify places where problems and removing them from legislation and collective resistance, often of knowledge and attitude— and policy. It is also more than simply undertaken by people with embedded in a context of unequal auditing for compliance with human stigmatized characteristics and at power relations—impact law and rights and Charter law, although that great personal risk, that stigma policy-making making behaviour. should certainly be an element of becomes visible. For example, a 2014 study looking at multinational, In order to examine how we might the process. Auditing for stigma is begin the process of auditing for about identifying underlying labels longitudinal data on public attitudes toward homosexuality stigma in both existing laws and
318 Tom W. Smith, Jaesok Son & Jibum Kim. “Public Attitudes towards Homosexuality and Gay Rights across Time and Countries” (2014) The Wil- liams Institute, UCLA School of Law, online: https://williamsinstitute.law.ucla.edu/wp-content/uploads/public-attitudes-nov-2014.pdf. 319 Graham Thornicroft et al., “Reducing stigma and discrimination: Candidate interventions” (2008) 2:3 International Journal of Mental Health Systems, online: doi.org/10.1186/1752-4458-2-3.
PROJECT INCLUSION 125 policies and in policy discussions, we But it becomes quickly apparent during the official rezoning process have put together a composite case whom the bylaw is meant to regulate and in the media, at events, or online. study based on laws, policies, and against when we consider the public institutional decision-making that we conversation at the time the law was It is also important to look to see if have encountered over the course of put in place, comments from counsel the project was subject to additional our research for this project. when the law was debated, and consultations and administrative enforcement data. requirements as compared to other 1 . IS THERE A STIGMATIZING development proposals. In this LABEL AT PLAY? To that end, it is instructive to look at composite community, councillors the community reaction to a real-life made public comments that showed In order to ascertain whether bylaw amendment in Kelowna, which a clear focus on who would use the there is stigma at work, we need focused largely on panhandling and service. This focus on service users to determine whether there is a collecting bottle donations, but also rather than land use issues suggests “marked” population that the law included changes to the regulation stigma might be at play. or policy is meant to regulate or of buskers. Reportedly, there was exclude. In some cases, this may “an onslaught of public criticism on 2 . ARE THERE STEREOTYPES, be obvious. For example, HIV non- social media” after news of the city’s MISINFORMATION, AND disclosure laws are exclusively proposed changes to the busker UNTESTED THEORIES OF relevant to people who have tested program surfaced.320 One Kelowna CAUSATION AT WORK? positive for HIV. city councillor was quoted as saying The fact that a law, either overtly or that critics feared it amounted to It’s not always clear, however, in practice, acts upon a specifically “criminalizing culture.”321 Council whether there is a labelled population labelled group is not necessarily then said it plans to review the entire that a given law or policy is meant problematic. For example, laws such busker program in consultation with to regulate, target, or protect. To as the graduated licensing program the local arts community.322 Concerns bring clarity to what can often be for new drivers are intended to act about criminalizing poverty through murky territory, recall Iyiola Solanke’s upon a specifically labelled group: the bylaw amendments, however, did questions to determine whether a teenagers/young adults (even not garner the same type of political particular characteristic is “marked” though older adults may at times or media attention. by stigma in a given context: be affected). Those laws are not • Is the label arbitrary? In order to understand whether problematic in the context of our the decision to deny the rezoning stigma audit. We are auditing for laws • Is the label socially discrediting? application in our composite and policies grounded in stereotypes • Do the targets of the label have community was based in stigma, we or misinformation, not evidence. low social power or social status? have to look at the decision-making Laws and policies are likely not stigma process and the belief systems and • Does the label have a long based if they are: history? evidence that informed it. • grounded in solid evidence rather • Can the label be wished away? Municipalities in BC have the power than relying on stereotypes or to regulate land use, based on folk wisdom; In our case study community, factors such as traffic, sight lines, • rationally connected to a the bylaw restricting people from and density. Neighbours have the legitimate policy objective; and carrying “drug paraphernalia” on right to weigh in on those issues. city property is a law of general Municipalities (and individual • written and enforced in a way application. However, it is likely residents and business owners) do that is respectful of human rights to mainly impact people who use not, however, have the authority and does not place unreasonable substances in public space, or who to decide who lives in a particular or unfair restrictions on a specific are marked with the social label neighbourhood or what type of group. “drug user” based on factors such as health services are offered. It is actual substance use, but also social therefore important to examine the As such, it is important to look for condition and ethnicity. Proponents type of arguments that were raised contextual information to better of such a bylaw may state that it is to during the process, as well as what understand the ideologies, beliefs, be one of general application—and was being said by councillors both and evidence that informed the law, therefore neutral and stigma-free.
320 Alistair Waters, “Kelowna council changes panhandling, busking rules”, Kelowna Capital News (27 March 2018), online: https://www. kelownacapnews.com/news/kelowna-council-changes-panhandling-busking-rules/. 321 Ron Seymour, “Kelowna to fine those who donate empties near depots or give cash to intersection panhandlers”, Vancouver Sun (27 March 2018), online: http://vancouversun.com/news/local-news/kelowna-to-fine-those-who-donate-empties-near-depots-or-give-cash-to-intersec- tion-panhandlers. 322 Waters.
126 Pivot Legal Society regulation, or government action by “drug paraphernalia”) in public space, stated purposes of a piece of law asking: and culminates in a city councillor or policy; • is there a faulty or unsupportable setting parameters (abstinence- • using derogatory language or assumption about the “labelled” based) around housing models for allowing such language to go group at work? people who use substances. In these unchallenged in public venues; instances, it is important to ask what • is there a faulty or unsupportable type of evidence is being relied on • actively spreading assumption made about the to adopt policy positions or inform misinformation; “problem” this labelled population decision-making, and which bodies • preying on prejudice (which they has been connected to that is of evidence are being excluded or may or may not genuinely share) underlying this law or policy? discounted. to rally support; • what evidence was relied on in • ignoring harms to the stigmatized making the decision in question? Sometimes, the knowledge gaps that inform law and policy are immediately group; and • what evidence was excluded or evident. In other cases, the beliefs are • failing to accommodate ignored in making the decision? so pervasive that even experts and marginalized populations allies cannot agree on whether they In our case study community, there to participate in processes are problematic. As a result, a stigma- are several stereotypes, knowledge through the use of physical, auditing tool needs a mechanism gaps, and unsupportable theories administrative, or bureaucratic for determining what evidence has of causation that are guiding barriers. been considered in coming to a policy-making. Like many of the policy or legislative decision and communities we visited over the 3 . IS PREJUDICE OR for weighing the completeness and course of this study, in our case DISCRIMINATION BEING credibility of that evidence. Beyond study community there are public CODIFIED IN LAW AND POLICY looking at relevant legal precedents, narratives about people who are IN A WAY THAT PERPETUATES academic literature, and expert experiencing homelessness at DISADVANTAGE? opinions, it is critical to ensure that play—including a belief that people the voices of labelled populations In determining whether stigma who are currently or have previously are part of the discussion. However, is present, Solanke invites us to experienced homelessness are not sometimes there is a level of consider whether those targeted from the community in question, prejudice or discrimination at work with a particular label experience and pose a danger to seniors and in the community that makes such exclusion, and whether their access children. engagement unfeasible or unsafe. to key resources is blocked. In the context of auditing for stigma in There are also attribution errors at It is possible that in many instances, laws, policies, and institutional work. Behaviours that result from law and policymakers believe they are decisions, we consider whether the homelessness, such as belongings acting on the best possible evidence law or action in question increases being stored in vacant lots, people to create good policy. However, in discrimination or exclusion for a sleeping in doorways, or people some cases law or policymakers may: stigmatized population, and whether relieving themselves in public are access to specific key resources are • refuse educational opportunities; being conceptualized as being due to blocked. We also take the analysis the character and innate attributes of • fail to work in good faith with one step further and consider people experiencing homelessness labelled populations; whether the law, policy, or decision in rather than as natural results of the question invites further stigma. fact of homelessness and a lack of • fail to seek out widely available information or relevant experts; social supports and services. This In our case study community, we see and misattribution results in communities a cascading series of decisions based pushing for a punitive policy solution • ignore credible information that on stigma that impact the people (do not build housing for people who is provided while accepting or targeted with the labels “homeless” are currently homeless) that works actively soliciting less credible and “drug user.” At an individual level, at cross-purposes with the policy information. prejudicial beliefs about people who outcomes they are seeking (fewer receive income assistance are leading visible signs of homelessness on their In those cases, stigma is likely at landlords to refuse accommodation streets). play. At the same time, stigma is to people targeted with labels likely driving the legislative and policy associated with receipt of “welfare.” In our case study community, we also agenda if policy makers are actively see a reliance on folk wisdom about perpetuating stigma by: At a policy level, prejudices that how best to address substance use. • othering the objects of policy in evoke a punitive response have led It begins with the decision to ban their public comments or in the to income assistance policies and harm reduction supplies (labelled impossibly low benefits rates that
PROJECT INCLUSION 127 systemically block access to housing. These policies in turn lead to people living in public space without access to enough income to meet their most basic needs. The result of having a population without access to housing or adequate income is an increase in grey-economy income generation activities, such as panhandling. That has led to new bylaws that open the door to ticketing and eventual criminal justice system involvement, inviting further stigma for those marked as “criminal,” a label which is then applied to all people labelled “homeless.”
All of this informed the decision not to issue the rezoning required to build the housing that would bring people inside. That decision, rooted in stigma, will lead to people remaining on the street, where they will continue to be at risk of further stigmatization as a result of behaviours directly attributable to the fact that they live in public space without access to adequate income.
Ultimately, identifying places where stigma is driving law and policy is not about preventing governments from addressing governance challenges. It is about reframing discussions in order to create policies that reduce social exclusion, promote public health, and increase safety for everyone.
Recommendations: Operationalizing Stigma-Auditing
Broader implementation of a stigma-auditing program would introduce the stigma-auditing tool to law and policymakers, require consultation and refinement, as well as the creation of a and to train stigma auditors. training program and a tool for policymakers and advocates. 4. In its first year in operation, the BC Human Rights To that end, we make the following recommendations: Commission should prioritize stigma-auditing areas of law and policy that most directly impact highly stigmatized 1. The Province of British Columbia must amend the Human populations, including, but not limited to: Rights Code, RSBC 1996, c 210 to prohibit discrimination and harassment based on social condition. i. public space governance; 2. In consultation with experts, including human rights law ii. income assistance and disability policy; organizations, trauma specialists, and people with lived iii. housing policy and residential tenancy law; experience, the Province of British Columbia should adopt a standardized tool and training protocol for conducting iv. child welfare law and policy; “stigma audits” of current laws, policies, and regulations in v. policing law and policy; BC, and to inform the development of new laws, policies, and regulations. vi. health policy related to mental health and substance use; and 3. The relevant provincial ministries should engage in extensive education and outreach to legislators and staff vii. privacy law as it relates to people who live in public across the provincial government, and local governments to space and people who are criminalized as a result of substance use.
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