On April 1, 2019, the Director of Public Prosecutions directed federal Crown prosecutors to minimize detentions for breaches of bail conditions, in part by no longer imposing the following bail conditions on people experiencing addiction:

• ‘Abstinence’ conditions, which criminalize people who possess and use illicit drugs;
• Prohibitions on carrying ‘drug paraphernalia’, including pipes and syringes, which impede access to life-saving harm reduction equipment and healthcare; and
• Area restrictions (or “red zones”), which banish people from the spaces, services, and communities they rely on.

The direction is adapted in part from Pivot’s most recent report, Project Inclusion.

Bail conditions are court orders imposed on people who are charged with an offence, but who are not incarcerated. While conditions are intended to address the particular circumstances of an accused and the offence at issue, the majority of people we work with are subject to broad “behavioural conditions” designed to control their everyday activities. For example, someone charged with a drug-related offence might be released on bail with conditions that they not possess drugs or even the drug paraphernalia (harm reduction equipment) that allows for safer use. Someone charged with an offence might also be “red zoned”—or prohibited from being in a geographic area, oftentimes a city block or an entire neighbourhood, and the services located within. As one participant put it:

[The red zone is] where all your services are. That’s where your food is, that’s where your doctors are, that’s where mental health is, that’s where the library is, that’s where your harm reduction is… That’s where basically any kind of service for street people or homeless or low income [people], that’s where it is.

For people living at the intersections of homelessness, drug use, and class-based oppression, these bail conditions make daily activities and interactions more dangerous and near-impossible. Bail conditions have a particularly negative impact on Indigenous and Black communities, who are already subject to over-policing.

During the development of Project Inclusion, Pivot lawyers and researchers travelled to communities across the province. Everywhere we went, folks described the tremendously negative impacts of bail conditions on their ability to get well, use drugs more safely, access critical healthcare, and maintain community ties. Project Inclusion participants told us that drug paraphernalia conditions have a chilling effect on their decision whether to carry harm reduction supplies. Abstinence conditions, if they can even be complied with, push drug use further underground. Red Zones sever people from supports and suppress their ability to build relationships and organize within the community.

Conditions that set people up to fail inevitably lead to high rates of “breach”, or non-compliance. Breaching a bail condition constitutes a separate offence under the Criminal Code. Breaches trap people in the criminal justice system, oftentimes setting off a cycle of breach-related arrests, even where they have not, and may never be, convicted of an underlying offence. One person we spoke with, for instance, had been convicted of breaching his conditions 52 times.

All told, the bail conditions system is part and parcel of a sustained attack on the well-being and survival of people struggling against the heavy-handed power of the state and criminal justice system. Bail conditions and affiliated breaches lead to rampant liberty infringements, over-incarceration, and an increase in harms associated with incarceration, including heightened stigma and loss of income, housing, or employment. The Public Prosecution Service's guideline cites Project Inclusion, acknowledging that breaches related to one’s drug use can also adversely affect one’s drug tolerance and put people at heightened risk of overdose following release.

For more information on conditions, read Part 2.2 of Project Inclusion: Everything becomes illegal: How Court-imposed conditions set people up to fail and watch the video below:

We hope this new guidance will limit the use of draconian bail conditions for people with addictions and stymie needless arrests. Given that it applies only to federal Crown prosecutors, however, we are hopeful that individual provinces, including B.C., will adopt similar prosecutorial guidelines to ensure broader protections.

This success is in large part owing to the tireless work of Darcie Bennett and DJ Larkin, who poured their energy into Project Inclusion from start to finish. We also want to send a special thanks to criminal defence lawyer David Fai, who provided significant insight and analysis throughout our research on conditions, and whose assistance throughout the years is incredibly appreciated. Finally, thank you to the folks we spoke to throughout the province, whose direct knowledge of red zones and bail conditions has led to this important change from the Director of Public Prosecutions.

Core to Project Inclusion are our recommendations to provincial and federal politicians and law makers. This guidance from the Director of Public Prosecutions, directed at federal Crown prosecutors, is a win in Pivot’s broader fight for these recommendations to become enshrined in law.

We need your help to continue carrying out this work. By making a gift to Pivot Legal Society today, you’ll help ensure that our advocacy can continue and that we can hold lawmakers accountable for their actions and policies.