April 5, 2022: BC Urban Mayors’ Caucus (representing 13 cities) writes to Minister Eby & Minister Farnworth, to highlight critical issues with “repeat offenders’ criminal activity and the catch and release justice cycle.” 

May 5, 2022: The province of BC, in co-operation with the Urban Mayor’s Caucus, commissions an Investigation Panel into “prolific offenders.” The full Terms of Reference for this investigation can be found online. The investigation will be undertaken by Doug LePard, a retired police officer (VPD and Metro Vancouver Transit Police), and Amanda Butler PhD, a health researcher and criminologist. The Panel’s report must be finished by September 2022.

A recently-announced provincial Investigation Panel ("the Investigation") will focus on two groups of offences - chronic property crime and violent offences. Quoted in the province’s press release, Mayor Lisa Helps of Victoria notes that “some, not all, prolific offenders experience mental-health and substance-use challenges and for these individuals a path to care and treatment is needed to address the root cause of the problem.” The Investigation’s terms of reference, however, focus on court-based interventions, first responders, compulsory programs (including complex care housing and involuntary mental health care), and “any other policies identified as promising.” 

This Investigation uses stigmatizing assumptions and terminology, and is a rushed and inadequate process that is not centered on people’s basic human rights and their lived experience of criminalization.

READ: Legislative Assembly of BC’s Draft Report of Debates - Thursday, May 19, 2022, Afternoon. Includes discussion of “prolific offenders.” 

Defining Prolific Offenders 

Like “prolific offender” research that came before, the current rapid review is putting a political bandaid on structural inequality. Minister Eby’s recent comments at the Legislative Assembly refer to “one group seems almost particular to Vancouver that's been identified by VPD, committing random, violent attacks on strangers, unprovoked. Another group with serious mental health and addiction issues committing chronic property crime.” 

From the outset, the Province's investigation conflates distinct crimes, as well as the impact of “serious mental health and addiction issues.” Prolific offenders are described with overbroad criteria, leading us to see the term as a political scapegoat. The province has not provided any clear definition of “prolific offenders.” 

Pivot takes issue with the terminology being used by this Investigation. Terms such as “repeat offender,” “chronic offender” or “prolific offender” are dehumanizing, and rely on stigmatizing labels that ignore underlying inequalities. Like the term “superpredator,” these reductive labels serve as media fodder, and create a lasting impact. Human rights advocates must reject the use of these terms as racist, classist, and demeaning. 

For over a decade, the province of BC has attempted to remedy “prolific offending” through enforcement. The Attorney General’s 2011/12-2013/14 Service Plan references a Prolific Offender Management Project that sought to reduce criminal behaviour through an integrated approach, including increased enforcement. A 2013 press release announcing the conclusion of the Prolific Offender Management pilot referenced a pilot project in 6 communities, from 2008-2010. That project similarly focused on coordinated police and probation partnerships, with insufficient attention to social determinants of health, Indigeneity, social condition, and prohibition. Academic evaluation of “prolific offender” projects, including a review of the Prolific and Priority Offender Management programs and 2014 Fact Sheet, lack critical analysis of the criminal justice system and instead focus on individualized narratives. 

We must stop criminalizing Indigenous People 

The province of BC has committed to upholding the calls to action from the Truth and Reconciliation Commission by using the Declaration on the Rights of Indigenous Peoples Act as its framework for reconciliation and to protect Indigenous human rights in Canada. However, the term “prolific offenders” is rooted in anti-Black and anti-Indigenous racism, and, further, the “proposals” explored in this report include compulsory care and court-based interventions, which will further perpetuate the overrepresentation of Indigenous people in the prison system and the oppressive cycles of criminalization and marginalization.

As Nits’ilʔin (Chief) Joe Alphonse, O.B.C., Tribal Chair, Tŝilhqot’in National Government states: 

Our Tŝilhqot’in communities need to be able to tackle this problem directly. We are the ones who are closest to the social issues and addiction and substance abuse. We see the impacts in our communities everyday. Through our culture and the knowledge of our Elders, we know how to address it best. My community of Tl’etinqox has the majority of prolific offenders in the region. Federal, provincial and municipal governments have repeatedly failed to address the problems around addiction and prolific offenders. It should be obvious that funding for the RCMP is not the solution while there remains the unaddressed issue of systemic racism throughout the police force. The government’s proposed plan seems to be more about scoring political points, rather than being about effectiveness and seriously addressing the issue. - May 6, 2022: Tŝilhqot’in Nation Demand a Leadership Role to Address Prolific Offenders 

It should be obvious that funding for the RCMP is not the solution while there remains the unaddressed issue of systemic racism throughout the police force. The government’s proposed plan seems to be more about scoring political points, rather than being about effectiveness and seriously addressing the issue.

Justice doesn’t happen on a 4 month deadline

In a 4 month timeframe, the province expects two individuals to meaningfully explore ‘solutions’ to complex and well-entrenched oppressive systems. This isn’t realistic.

For over 20 years, Pivot has fought for the rights of criminalized communities living in poverty, recognizing that survival is a critical driver in “property crime.” In 2018, we published a report called Project Inclusion: Confronting Anti-Homeless and Anti-Drug User Stigma in BC, which included 22 recommendations directed at police, courts, social and health services. We continue to recommend de facto decriminalization, ending the displacement of people who rely on public space and ending harmful policing practices. These recommendations are grounded in the expertise of people with lived and living experience with the criminalization of poverty. 

Community calls to action, informed by people with lived and living experience who use drugs and people who rely on public space for living and working, have already provided the solutions to the conditions they are living in. In fact, these calls were already put to the province’s Special Committee on Reforming the Police Act. 

The province’s timeline is not only unrealistic - it is unethical. In order to meaningfully work with individuals and communities who have been impacted by “prolific offending,” a respectful timeline must incorporate an opportunity to build trust, receive feedback, correct misunderstanding, and address underlying assumptions. The short rapid review format inherently disregards the importance of relationships - particularly criminalized individuals who have been labelled as “prolific offenders.” Without meaningfully engaging with these folks, recommendations will not have been verified by their lived and living expertise and knowledge of the involved systems. This means that we will likely return to this same conversation in a few years, once again playing political football with people’s lives. 

The province clearly acts quickly when the issues at stake, as framed by the Urban Mayors’ Caucus, reflect the protection of property and private businesses. Obviously, a two-person Investigation Panel cannot resolve the underlying conditions that drive crimes of survival in the next three months. To actually make meaningful and lasting change, the government must commit to addressing the true chronic offenders: white supremacy, settler colonialism, and state-manufactured poverty. 

Private Property vs Human Rights 

Municipalities that are advocating for rapid response are privileging private property over individual, collective and communal rights. We acknowledge the inconvenience caused by theft, broken windows and graffiti, but remind ourselves that just 2 years ago we witnessed a global reckoning with racist policing. In the aftermath, many people recognized and condemned anti-Black and anti-Indigenous patterns of criminalization. Yet, less than two years later, we are witnessing public policy conversations driven by retailers' opinions, instead of policy based on human rights. 

We don’t have to accept destructive behaviour in our communities. We also don’t have to accept high rates of homelessness, lack of income security, and diminishing places for drug users to organize and hold meetings. Cities such as Surrey and Nanaimo use local bylaws to prevent drug user unions from maintaining office spaces, despite offering life-saving support to community members. These public policy failures don’t seem to register with the province. 

We cannot arrest or institutionalize our way out of this.

The Investigation’s Terms of Reference centre around potential expansions of incarceration, coercive care, and other interventions that deprive people of their human rights. The Charter explicitly protects against cruel and unusual punishment, and guarantees the right to life, liberty, and security of the person. Coercive and punitive approaches can violate these basic constitutional rights.

The Investigation Panel’s approach to the investigation has been suggested to be one based on addressing the social determinants of health. However, the Investigation’s Terms of Reference include: exploring the relationship between involuntary care and complex mental health care; increasing the involvement of people in specialized courts; and increasing the use of electronic monitoring of people who have involvement with the criminal justice system. These ‘solutions’ do not align with an evidence-based, health and human rights-informed approach. 

We need to address the reasons that people are being criminalized in the first place, instead of looking for ways to remove them from property and punish them with criminal charges. It does not appear that the gravity of charging people with crimes is appreciated by business owners, municipal mayors and council members, and the province. Criminalization (including charges, prosecution, and sentencing), as well as coercive mental health treatment, have lifelong impacts that harm people across all aspects of their lives. These life-altering (and in some cases, life-limiting) interventions are being positioned as the central “solutions” to address the issues that business owners have with people who rely on public space.  We know these are not truly solutions at all.

Pivot’s Recommendations 

1. Enshrine social condition as a protected ground under the BC Human Rights Code so that people cannot be discriminated against for living in poverty, having no legal source of income, the nature of their occupation or their occupation status, their housing status, and their level of education
2. Formalize de facto decriminalization of substance use and rapidly scale-up peer-led access to safe supply throughout BC
3. Protect the rights of drug users to gather, organize, and rent space in municipalities throughout BC 
4. Increase income assistance & disability assistance rates 
5. Fund and develop a spectrum of rights-based shelter- and pension-rate housing throughout the province 
6. Defund the police and invest in community-led responses to harm 

Resources

• Blueprint for Justice - BC Poverty Reduction Coalition
• Choosing Real Safety: a Historic Declaration to Divest from Prisons and Policing and Build Safer Communities
• Equity is safer: Human rights considerations for policing reform in British Columbia - BC’s Office of the Human Rights Commissioner
• Red Women Rising - Downtown Eastside Women’s Centre 
• Red Zones: Criminal Law and the Territorial Governance of Marginalized People - Marie-Eve Sylvestre, Nicholas Blomley, Céline Bellot
• Social Condition Backgrounder - Pivot Legal Society