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