Pubdate: Mon, 20 Nov 2017
Source: Globe and Mail (Canada)
Copyright: 2017 The Globe and Mail Company
Author: DJ Larkin (Staff lawyer with Pivot Legal Society)
Page: S2


Regularly imposed bail condition is an untenable method of punishment
and sets up marginalized people for failure

Imagine you have a serious medical condition requiring regular care.
You are charged with a minor offence, for which you are innocent until
proved 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, 11⁄2
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 redzoned 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

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 must 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.
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