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Police speak to a man and woman on East Hastings in Vancouver's downtown eastside on Feb 7, 2019.JONATHAN HAYWARD/The Canadian Press

A new federal guideline directs prosecutors to “minimize or eliminate” some common bail order conditions for people charged with drug offences who are also addicted to drugs, saying the conditions make it more likely that offenders will be sent back to jail and more at risk of overdose when they get out.

The conditions, routinely applied in the past, include bans on possessing illicit drugs or being at certain locations. The change is one the Pivot Legal Society has been advocating for, arguing the bans are extremely difficult for drug-addicted people to comply with, leaving them in a cycle of repeated breaches that can go on for years.

“It’s a way that people got trapped in the criminal justice system and really didn’t have a way out,” Pivot lawyer Caitlin Shane said in an interview this week.

“By removing or limiting the ability of prosecutors to impose these types of conditions, our hope is that people will be less entrenched in that system,” Ms. Shane said.

That heightened risk comes because drug users’ tolerance tends to decline when they are in custody and have little or no access to illicit drugs and may not have ready access to medical alternatives.

“The imprisonment of such individuals for minor breaches related to their addiction may adversely affect their tolerance levels for opioid use, putting them at heightened risk of an overdose upon release from custody,” says the new guideline, announced April 1 by the Public Prosecution Service of Canada (PPSC). The federal authority said the new guideline was driven by overdose trends.

“Discussions started in September 2018 to address whether the PPSC could be doing more to combat the current opioid crisis, particularly in B.C.,” PPSC spokeswoman Nathalie Houle said in an e-mail.

The guideline noted “the severity of the public health emergency has not declined.”

The three conditions that “should generally not be imposed” are requirements that a person should not possess controlled substances, should not possess drug-use paraphernalia and should stay away from certain locations.

The new guideline allows exceptions for public safety concerns or as part of a programs agreed to in drug treatment courts.

Area restrictions – often referred to as red zones – typically prohibit people from going to a certain street or neighbourhood, such as Vancouver’s Downtown Eastside.

The guideline cites a 2018 report from Pivot that said red zone orders were resulting in people being cut off from services, including health care, and that conditions such as no-drinking orders for a person addicted to alcohol set them up to re-offend.

A 2016 study found up to 20 per cent of all charges within the B.C. Provincial Court concerned breach offences, the Pivot report said.

Nationally, charges for failure to comply with a court order (often breaching a bail condition) increased by 58.3 per cent between 2001 and 2012 and charges for breach of probation conditions increased by 47.4 per cent over the same period, the Pivot report said.

Over the same period, overall charges for all criminal offences increased by 4.1 per cent, the report said.

B.C. declared a public-health emergency in April, 2016, in response to increasing numbers of drug overdoses and deaths in the province.

The number of overdose deaths increased in each of the past two years and reached 1,510 in 2018, the highest in the country.

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