The right side of history
We can all use a bit of good news these days. Last week, the Supreme Court of Canada delivered a unanimous decision on R v Zora; a case about bail breaches in which Pivot intervened with help from Vancouver-based criminal defence lawyer David Fai. We were hopeful the Court would agree to hold the government to a higher standard when prosecuting someone for breaching a bail condition – and the Court did – but we were thrilled to see Canada’s top justices go as far as they did in cautioning against onerous and invasive bail conditions in the first place. Favouring the accused person and eight supporting interveners (including Pivot), R v Zora marks a new path forward for Canada’s broken bail system.
Pivot Staff Lawyer Caitlin Shane and co-counsel David Fai at the Supreme Court of Canada | December 4, 2019Read more
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, prohibitions on carrying ‘drug paraphernalia,' and area restrictions (or “red zones”). The direction is adapted in part from Project Inclusion's recommendations.
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. Read more about the importance of this direction here.
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.
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.Read more
When we embarked on this project, our goal was to connect with people experiencing homelessness and people who are criminalized as a result of poverty and substance use in order to develop a grounded understanding of the laws, policies, and practices that intensify harm and undermine public health.
Through our conversations with Project Inclusion participants, we learned about the frequency and nature of interactions between people who live in public space and police, bylaw officers, and private security. We came to understand the role court-imposed conditions play in shaping the lives of people who took part in this study and came to understand some of the barriers people face in accessing income assistance, shelter, and health care.
We make many specific policy recommendations, but improving the health, safety, and well-being of people who took part in this project and the broader communities in which they live will take more than changing the individual laws, policies, and practices. It will require that we address the mechanism that underlies the experiences and issues raised through this project: stigma.
Stigma is generally understood as a problem of individual beliefs and attitudes. There is inherent value in identifying stigmatizing beliefs and values that we hold and in taking steps to change them. However, those efforts are often seen as distinct from law and policy reform work. Project Inclusion participants helped us understand how stigma informs what is defined as a legal or governance problem and how it drives what makes it onto the legislative agenda.
Making stigma visible is integral to shifting laws, policies, and decision-making practices that create and intensify harms such as ill health, opioid-related deaths, and homelessness.
Stigma is often so deeply embedded in our cultural context that we don’t see it. It is only after significant advocacy and collective resistance, often undertaken at great personal risk by people who are most profoundly affected, that stigma becomes visible. We need a systematic way for policymakers and advocates to identify stigma embedded in existing laws, policies, and decision-making practices. We also need a way to pre-emptively identify situations where stigma is informing policy development or driving the legislative agenda.
Auditing for Stigma
Stigma entails problems of knowledge, problems of attitude, and problems of behaviour. We are interested in systematically identifying places where problems of knowledge and attitude—embedded in a context of unequal power relations—impact law and policy-making behaviour.Read more
Project Inclusion participants identified specific service providers as critical sources of safety, support, and community. We know that we could not have undertaken this project without the openness and dedication of overtaxed frontline service providers.
Despite the many highly skilled service providers working tirelessly to support people in their communities, participants in every region identified ways in which health and social services fail to meet the needs of people experiencing homelessness and people who are criminalized as a result of substance use.
Decades of defunding and resulting privatization of services for people who live in deep poverty has created a patchwork system of service delivery, where the number and types of services available, rules for clients, and oversight standards vary arbitrarily from municipality to municipality. There are very real and direct health, safety, and human rights implications that arise where services are not available or accessible to marginalized people.
We identified three major areas where gaps and barriers are substantially undermining health and safety:
- provincial income support programs;
- shelters; and
In one town we visited, we connected with a soft-spoken woman we met at an emergency shelter where she was staying. She was doing her best to make herself comfortable near the shelter’s front door, despite the fact that she was in extreme physical pain. We later learned that she was also living with advanced cancer.
After the death of a parent, she was alone for the first time and living on basic income assistance. Unable to find housing, she was now homeless in the same community she had lived in all her life. We could not help but ask: how, in contemporary British Columbia, could this situation even happen?
READ MORE: Project Inclusion Full Report
Some of the answer lies in the need for more low-income housing options and increases to income assistance rates. Across BC, there are also too few safe drop-in services, shelter spaces, harm reduction services, treatment beds, and advocacy services to meet the most basic needs of people living in poverty. However, we also need to dig deeper and critically examine the ideologies and beliefs that underlie the development and delivery of many essential services.Read more
“Conditions” are the legal term for rules imposed on people who are involved with the criminal justice system but not incarcerated. Over the last decade, our justice system has increasingly focused on regulating people’s behaviour while they are on bail, resulting in more conditions being imposed on people who have not been found guilty of any offence, people who are simply waiting for the slow wheels of our justice system to operate to give them their “day in court”. Individuals may also have conditions imposed on them while on probation, as part of a conditional sentence order, or when exiting prison on parole.
Being convicted for violating a condition is referred to as a “breach” or “breaching”. Breaches of conditions have become the most common criminal offence cycling through our courts.
Some conditions are imposed to protect against serious crimes, such as violence against women in relationships or sexual offences. But many conditions target people who are homeless or using substances, creating unreasonable standards of conduct that set people up for failure and do not contribute to individual or societal safety. These are the types of conditions Project Inclusion participants talked about.
Three types of conditions were identified as being particularly harmful:
- area restrictions (better known as “red zones”);
- abstinence conditions; and
- prohibitions on carrying so-called “drug paraphernalia” (harm reduction equipment).
These conditions trap people in a cycle of criminalization and incarceration with long-term negative health and safety consequences.
Area restrictions, colloquially known as red zones, prohibit an accused person from being in a specific area. Like all conditions, area restrictions are supposed to be linked to the specific circumstances of an alleged offence; e.g., you are prohibited from attending the specific apartment building where it is alleged you got into a fight.
But in many communities we visited, Project Inclusion participants told us the “red zone” was predetermined. Anyone charged with with an offence, particularly poverty or drug-related offences, was banned from the same geographic area. Many people we interviewed could draw the red zone on a map or list the streets that comprise its boundaries.
[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. — 396*
These red zones are preventing people from accessing the health care and social services they rely on and increasing social isolation among vulnerable people.
Participants told us that people who rely on illicit substances, as well as people who rely on alcohol, are routinely given abstinence conditions.
I got like 52 breaches, a bunch of theft-unders [shoplifting]… If I was sober, I would never have a record, that’s what everybody tells me. That’s what all the RCMP tell me, and the lawyers, and the judge and everything, because I'm a well-educated and smart and respectful person. But yeah, just the alcohol, that gets me. — 102*
Abstaining from drugs and alcohol, often with no supports or housing options, is an impossible task for people who are dependent on substances. The end result is frequent periods of incarceration. As well as being highly stigmatizing, incarceration is an independent risk factor for a variety of social and health harms.
In some communities, service providers reported that Indigenous men and women are disproportionately impacted by abstinence conditions. We also learned that these conditions prevent women from calling police when they experience violence because they fear being charged with a breach.
Prohibitions on Carrying “Drug Paraphernalia”
What is referred to as “drug paraphernalia” by the courts, is in fact harm reduction equipment.
If I’m going to fucking use drugs, I’m not just going to ignore fucking using clean shit, just sneaking around and using whatever I can to get away with… I’m going to fucking get clean shit and have it on me all the time… I mean it’s stupid; like, fucking, they breached me for having a needle on me that’s clean…I’m an addict, I’m going to use, I’m going to relapse, I’m going to have slips, you know, whether I’m trying or not, it’s going to happen, so I’d rather do it where it’s safe. — 349*
One of the primary stated goals of imposing conditions is the protection of public safety. Prohibiting people from carrying harm reduction supplies (drug paraphernalia) does the opposite. Prohibitions on carrying these critical health supplies makes some people reluctant to accept supplies from service providers or more likely to dispose of supplies less safely in case they are stopped by police.
READ MORE: Project Inclusion full reportRead more
Regardless of demographics or regions, both the police, as an institution, and policing, as a set of practices, were top of mind for Project Inclusion participants. Reaction to engagement with police ranged from exhaustion from constant experiences of displacement, to anger as a result of a lifetime of harassment, to absolute fear. Indigenous participants living in deep poverty, particularly those who live in public space or consume alcohol in public, are especially targeted by police.
One participant who was experiencing a very high level of interaction with police in her small RCMP community summed up the sentiment of many marginalized people who spoke with us: “Just about five days ago, they came to our camp and they called [name] a 'worthy target' (181),” she said. “And he was like, ‘How am I a worthy target? I live in a fucking tent.’”
Policing practices are not creating safety for people experiencing homelessness, people who use substances, people scraping by in the grey economy, or the broader communities in which they live. Especially concerning in the context of an unprecedented opioid crisis is that participants across BC described police disrupting harm reduction activities and contributing to higher risk substance use practices.
Seizure and Destruction of Harm Reduction Supplies
We learned that in several communities, harm reduction supplies provided by health authorities and local service providers are being seized or destroyed by police.
Police take all my supplies all the time. I was doing what I thought I had to do and just because I had supplies doesn’t necessarily mean that I had drugs on me all the time, either, because I didn’t. Once in a while I had drugs on me, but that is [neither] here [nor] there. That is irrelevant. — 165*
Police seizure of harm reduction supplies demonstrates a clear disconnect between provincial health policy and policing practices. On the one hand, people who use substances are actively encouraged to access clean harm reduction supplies; and on the other, carrying those supplies is resulting in punitive responses from police.
Police Presence Near Overdose Prevention Sites
In some communities, people who use drugs now have access to Overdose Prevention Sites (OPSs) where they are able to consume illicit substances without fear of arrest in the presence of people trained to provide rapid overdose intervention. The success of the OPS model in saving lives is undeniable. Yet, heavy police presence in the vicinity of these sites can, and does, make people reluctant to use these life-saving services.
WATCH: Project Inclusion videos
In one RCMP community, we had the opportunity to witness the impact of over-policing outside the OPS firsthand. The site in this community is only open a few hours each day. One afternoon, we watched police parked in front of the site slowly search a car that appeared to be someone’s home for over an hour. In that time, we saw several people come around the corner toward the site, see the police, and turn and walk away. We also watched one woman leave the site in a state of extreme distress because she saw the police outside and was fearful that they were there for her.
Police Response to Overdose Events
In cases where a person experiences an overdose, especially outside of an OPS or supervised consumption site, it is imperative that people feel that they can call 911 to get help. The Good Samaritan Drug Overdose Act (GSDOA), which became law in May 2017, offers some legal protection for people who find themselves at the scene of an overdose when emergency help arrives, including the caller, the person who overdosed, and any other bystanders. While the GSDOA provides immunity against charges of simple possession and breaches of conditions where the underlying offense is simple possession, it does not protect against outstanding warrants or against charges and breaches related to other offenses.
Project Inclusion participants identified three issues related to police attendance at overdoses:
- in many communities, the police are often the first responders at an overdose and are not intervening medically when they arrive on scene;
- at times, police interfere with people trying to administer naloxone or other first aid; and
- police are perceived to be using overdose calls to monitor and investigate drug users, sometimes leading to arrests.
Project Inclusion interviews began two months before the GSDOA became law and concluded five months after it was enacted, so it is too soon to determine its full impact. However, there is evidence to suggest that the GSDOA is either misunderstood by police, or that police are deliberately applying it in a way that undermines its intended public health purpose.Read more
Project Inclusion is a comprehensive study into the ways in which specific laws and policies in policing, health care, and the court system directly undermine the health and safety of people who are homeless and living with substance use issues by trapping them in a cycle of criminalization. Pivot travelled to municipalities across British Columbia to hear directly from those affected and has gathered insight into how local laws and practices create harm by shaping lived experience. In essence, these laws and policies are setting people up to fail.
The analysis illustrates the interconnectedness of these “systems of harm” and the role stigma plays as an underpinning force fuelling human suffering. Project Inclusion also proposes innovative solutions, informed by those affected, as answers to these problems and a means to protect the health and human rights of people across the province. #ProjectInclusion
Project Inclusion by Chapter
Policing: The Impacts of Police and Policing
Project Inclusion participants shared experiences of harassment, displacement, threats, racism, and violence at the hands of police and policing institutions across BC. Police exist to serve and protect; but they are causing harm, particularly for people who are already living vulnerably, and are working in direct conflict with health authorities.
"Conditions of release" are widely applied to people involved with the criminal justice system, but police- and court-imposed conditions have a particularly harmful effect on those who are homeless and people who use substances. Conditions are being applied in a way that fails to acknowledge the complexities of homelessness and substance use, and therefore, are trapping people in a cycle of criminalization and actually producing criminality that undermines health and safety.
BC’s income support programs, shelters, and hospitals exist to serve people in need. But across the province, people are experiencing barriers to accessing income assistance, there are not enough safe and accessible shelter options, and stigma and racism are surfacing in how people are treated in hospitals. These are public services that should serve the public good, but their inaccessibility is putting the health, safety, and human rights of marginalized people at risk.
As part of our in-depth interviews for Project Inclusion, we found one thing connecting and driving the experiences of all study participants and the laws and policies discussed in this report: stigma. We close our report with the introduction of a new tool to audit for stigma in BC’s laws, policies, and provision of services. The aim is to reveal that which can be difficult to define or make tangible. By making stigma visible, we can change the systemic processes that hold it up and allow it to cause harm.
Policing: The Impacts of Police and Policing
Project Inclusion participants shared experiences of harassment, displacement, threats, racism, and violence at the hands of police and policing institutions across BC. Police exist to serve and protect, but they are causing harm, particularly for people who are already living vulnerably, and are working in direct conflict with health authorities. [Read more]
Justice System: Everything Becomes Illegal: How Court-Imposed Conditions Set People up to Fail
"Conditions of release" are widely applied to people involved with the criminal justice system, but police- and court-imposed conditions have a particularly harmful effect on those who are homeless and people who use substances. Conditions are being applied in a way that fails to acknowledge the complexities of homelessness and substance use, and therefore, are trapping people in a cycle of criminalization and actually producing criminality that undermines health and safety. [Read more]
Services: No Access, No Support: Service Gaps and Barriers
BC’s income support programs, shelters, and hospitals exist to serve people in need. But across the province, people are experiencing barriers to accessing income assistance, there are not enough safe and accessible shelter options, and stigma and racism are surfacing in how people are treated in hospitals. These are public services that should serve the public good, but their inaccessibility is putting the health, safety, and human rights of marginalized people at risk. [Read more]
Stigma: Making Stigma Visible – Why a Stigma-Auditing Process Matters for BC
As part of our in-depth interviews for Project Inclusion, we found one thing connecting and driving the experiences of all study participants and the laws and policies discussed in this report: stigma. We close our report with the introduction of a new tool to audit for stigma in BC’s laws, policies, and provision of services. The aim is to reveal that which can be difficult to define or make tangible. By making stigma visible, we can change the systemic processes that hold it up and allow it to cause harm. [Read more]