DJ Larkin is a staff lawyer with Pivot Legal Society.
Imagine you have a serious medical condition requiring regular care. You are charged with a minor offence, for which you are innocent until proven guilty, and your first step into the justice system is to stand before a judge who will determine whether you will be released on bail. The judge says you are free to go, but as a condition of release you are not to be within the 10-square-block area that constitutes the downtown – even though your doctor, your pharmacy and your social supports such as friends and family are all within that area. You have been "red zoned" from your community.
These conditions of release are imposed regularly in our provincial courts and are an untenable way to punish marginalized drug users and homeless people across Canada, including Ontario.
Red zones are orders that restrict where individuals out on bail can physically be. They can be "counterproductive, punitive and, frankly, unlawful," according to Marie-Eve Sylvestre, a law professor at the University of Ottawa and the lead researcher of a new study revealing the harmful ways in which red zones are setting up marginalized people for failure. Those who are found in their red zones are often arrested and charged simply for breaching their conditions of release. These charges stack for every breach, evolving into a lengthy list of charges stemming from one original alleged crime and no real other supposed offence other than occupying space against a court order.
Ms. Sylvestre and her team found that up to 37 per cent of court orders in Vancouver were breached and led to, on average, 1 1/2 to two additional breaches, "creating a 'revolving door' effect" that strains our already taxed justice system.
As a legal organization with 15 years of experience working with people living in poverty, we have seen first-hand that the harms of these conditions far outweigh any benefits to rehabilitation and public safety. We recently travelled to 10 communities across British Columbia and found that red zones are severely impairing people's ability to access basic services such as doctors, shelter and meal programs, and may be increasing the risk of HIV and hepatitis C infection, along with drug overdoses.
As part of our research, we also spoke with front-line service providers who see the pernicious effects of red zoning on a daily basis. More than half (65 per cent) said conditions of release such as red zones increased the risk of overdose in a way that "poses an immediate and serious risk to their health or well-being." We know that many drug users are being red zoned from areas where harm reduction is being offered, such as the supervised drug-use sites in Toronto's Moss Park and in Ottawa. This is forcing people to use alone, away from others who can intervene and save their lives should they overdose.
People who use drugs are also being red-zoned from vital addiction services such as needle exchange programs and methadone providers. Imagine having cancer and being forbidden to visit your oncologist? It is an apt comparison with the realities of people struggling with addiction who are criminalized for trying to access help.
Throughout the course of our research, we have even heard from individuals who have been red- zoned from their own homes, effectively making them homeless and drastically increasing the harms they are exposed to and the likelihood they will commit offences to survive. "A corporate trader who steals millions from people doesn't get red-zoned from his downtown condo," one respondent in our B.C.-wide study told us.
We are especially concerned when police – not the courts – issue red zones, because issuing conditions of release requires timely judicial oversight and procedural fairness. Such decisions should not be left to the discretion of individual officers without adequate accountability mechanisms in place. For example, we know that in B.C. the police use of red zones is not tracked – further eroding the oversight mechanisms meant to safeguard people from being punished without being found guilty of a crime.
According to the law, someone released on bail is entitled to be released without conditions; but in Vancouver, a shocking 97 per cent of all bail orders issued between 2005 and 2012 involved some form of restriction, Ms. Sylvestre and her co-researchers found. More than half of bail orders for drug offences included a red zone. These conditions, Ms. Sylvestre argues, are likely to lead to violations of fundamental rights such as the right to the presumption of innocence, the right to reasonable bail and the right to life, liberty and security of the person.
We have written to the ministers of justice and public safety, Jody Wilson-Raybould and Ralph Goodale, expressing our concern over the pervasive reliance of this harmful practice by police and the courts, which infringes upon the basic human dignity of marginalized communities. Travelling to 10 municipalities across B.C., we know that red zones are not exclusively a big city problem, endemic to places such as Montreal, Ottawa and Vancouver. In outlying communities, where people have fewer options for services, red zones are putting people's health and safety at even greater risk.
Laws must be changed to strictly limit when a red zone can be issued – namely, when individuals pose a serious threat to the safety of the community. Moreover, we live in a society where all have the right to be presumed innocent until proven guilty. We ought to ask ourselves why anyone not convicted of a crime is being subjected to a red zone in the first place.