Part 1 of 3 – If not prison, then where?
A small group of British Columbians are homeless, addicted, mentally ill, and trapped in a loop of repeating criminal behaviour. With the ongoing illicit drug overdose and addiction crisis, brain injuries and psychotic disorders are on the rise. The situation on the streets is worsening.
The Canadian justice system recognizes the criminal acts committed by these few are driven by medical conditions and lifelong marginalization, and has deemed they do not belong in jail. The problem is, they don’t belong on the streets either. Yet, because B.C. lacks adequate housing and treatment facilities to deal with complex addictions and severe mental illness, that’s exactly where many of them end up.
If not prison, then where? is a three-part series that will introduce readers to some of these so-called prolific offenders and others caught in the gap between the justice and healthcare systems. It will investigate how they ended up on our streets, why community supports are falling short, and what solutions might most effectively interrupt their criminal behaviour.
Note: The names of the people living homeless have been changed to protect their privacy.
It’s an unseasonably warm March morning in Northern B.C.’s most populous city. A couple dozen people are congregated on the sidewalk or huddled curbside along Third Avenue in downtown Prince George. Most sit on the cement, their backs leaned against the building that contains a supervised injection site, a needle exchange, a safe prescribe clinic, and a cultural drop-in centre.
About twice as many men as women, the majority look in their 20s or 30s, a rare few over 50. Gathered in groups of one, two, or three, they are talking to each other, themselves, or staring dully. Some hands fidget with crack pipes. A woman opens and closes a container holding a dozen or so needles. A girl, no more than 16, sits wide-eyed and alone, a blanket pulled around her slender body.
Piles of pre-packaged clean needles and government-issued drug filters are scattered in an alcove. Two shopping carts stand unattended, overflowing with someone’s worldly goods. Most people have backpacks, Naloxone kits tethered to a few. Several are lolling, drowsy-eyed, or have nodded off in the sun. Two sit on bikes. A few are passed right out, their limbs unmoving in awkward positions.
The harm reduction clinic and the drop-in cultural centre both open in a couple of hours. They are all waiting.
One man stands out.
His energy is coiled, intense. He stalks through the crowd, muttering, fierce, unseeing. Unexpectedly piercing eyes glare out from within the shadow of his hoodie. As he reaches George Street and pivots west, a screaming howl erupts like wounded rage from his chest as he disappears.
Downtown safety patrol
Four hours later, RCMP Cst. Adam Moleski drives slowly through the city’s inner-city streets and back alleys. He is part of the downtown safety unit, which proactively patrols the core and responds to calls from the public – a lot of mischief, theft, causing disturbance, and low-level drug trafficking. Today, he’s pulled the short straw and is touring a reporter around his beat.
Moleski turns onto Third Avenue past the safe injection site. The number of people on the sidewalk has increased since mid-morning, but many of the faces have changed. The cultural centre is serving its one meal of the day. Staff distribute containers of chili, Caesar salad, and juice.
Tanner, the howling man, is back. He stands slightly apart from the others, his hostility from earlier replaced by a tense restlessness. He bounces nearly imperceptibly, shifting his weight up and down, back and forth. Head tilted down, his gaze is fixed on an object in his hands – a knife? He is scraping his fingers with it. Moleski pulls the unmarked police vehicle into the laneway beside the man, rolling down the window as the SUV rolls to a stop. “Are you okay, Bud?” Moleski asks. Tanner looks up. His hood now resting on his shoulders, the eyes that stare back are startling. Unusually light, they seem almost illuminated, projecting a kind of hyper-focussed fervour. “Do you need an ambulance or anything?” Moleski addresses him again. At the sight of Moleski’s uniform, Tanner sharpens; his stance tightens. “You're gonna go into an ambulance?” he parrots back. Moleski skips over the question. “What happened to you?” Tanner’s hands are blackened from his fingertips to his wrists, possibly beyond. “I was just washing myself with soot.” “Oh, OK.” Moleski rolls with it. “Am I too dirty for you?” The man’s tone turns belligerent; his chest puffs. “No.” “You going to judge me for something? Did I do something wrong? You wanna judge me?” Tanner’s words flow in a torrent. “No, I'm just asking if you need a hand,” Moleski says at the first opening. “Are you sure? Don't judge me. You seem like you are.” “No, not at all, Bud.” “Well, you're wondering what I'm doing,” presses Tanner as if gunning for a confrontation. “I actually thought you had a knife,” says Moleski. Seen closer, the object appears to be a shaved piece of wood about the size of a butcher’s blade. “Why? Would that scare you?” Tanner taunts, seemingly pleased he might have somehow provoked the officer. Then he adds, “Why would I have a knife?” His intonation suddenly accusatory. “I don't know. Lots of people have knives,” the officer says easing out of a conversation headed nowhere good. “Have a good day,” he says before driving on.
Moleski emanates an upbeat, energized competence. “I used to be more upbeat. I used to be able to just sit and talk to people all the time,” says Moleski as he drives. “Now, I kind of have a finer line before I’m just done. Which is common. Really, you can’t take any of this personally. I know cops that do. And then they really get burnt out.”
He joined the RCMP in 2009, and has served in the north region ever since. His first post was in the small unincorporated community of Alexis Creek, then he moved to Smithers, before returning to his hometown of Prince George in 2017.
After five years in the city, Moleski recognizes most of the downtown regulars. Tanner is well-known to police. One of several hundred individuals making the news in B.C. lately, Tanner is what the justice system refers to as a ‘prolific offender.’
“Severe mental health problems, probably as a result of addiction. But a very violent and very dangerous guy,” Moleski says.
Tanner has had more than 500 police interactions and 75 convictions the last 10 years in the north district of B.C. alone. That’s not counting additional convictions and interactions he’s had in other districts and provinces.
In the North, Tanner’s convictions involved violence, drugs, breaches of probation and court orders, break and enter, theft, shoplifting, mischief, and firearms. Just turned 40, his longest sentence was two years in jail. But most spanned several weeks to a few months, including 112 days for assaulting a police officer. His recent firearms offence drew him a sentence of 12-months probation.
Degrading community safety
For the past many months, officials and citizens in communities across B.C. have grown increasingly alarmed about inner city crime and random violent attacks committed with seeming impunity by a relatively small group of individuals – the so-called prolific offenders.
“Many people feel like it’s becoming a lawless state,” said Terrace Mayor Carol Leclerc in an April interview. “With prolific offenders, you’re giving a message to other people…. that it is okay to do crime. It is okay to steal. Because there’s no harm in it. There’s no consequence, no repercussions.”
Public perception of community safety is degrading, said Kamloops-North Thompson BC Liberal MLA Peter Milobar.
“We’re hearing of four-plus unprovoked stranger attacks in Vancouver each and every day. Seventeen-year-olds in Surrey getting kneed and punched and kicked in the head while they’re trying to take a bus home, where they should feel safe,” said Milobar, whose own home town of Kamloops has also been plagued by rising inner city crime. “Terrace. Prince George. Kamloops. Name the city. This is happening on the streets.”
In April, a 13-member coalition of urban mayors, representing 55 per cent of the provincial population, wrote to Attorney General David Eby about “repeat offenders’ criminal activity and the catch-and-release justice cycle.”
The mayors said a couple hundred people are responsible for almost 12,000 negative police interactions in 10 of their cities, causing a disproportionate impact on community safety.
Even when police recommend charges, individuals are either not charged or are quickly released on bail, often without conditions, stated the mayors.
Because Crown is less likely to approve charges for property crimes or low-level drug dealing, police say they will often just confiscate illegal drugs and weapons – the two often go together – and release the individuals back onto the street.
Moleski recalled a recent incident when police spotted a man dealing drugs on the street. Police arrested him and confiscated the drugs, but didn’t recommend charges. “Crown will never approve a charge for that,” says Moleski, who would only recommend a case for charge approval if he had evidence of a person repeatedly dealing.
B.C. is one of three provinces where Crown must approve charges, not the police. Police provide evidence and recommend charges for approval.
“When I started, we used to have to send everything to Crown,” Moleski says. “We didn’t really have discretion. That’s changed so much.”
Whether that was due to an understanding between Crown and the small detachment where he began his service, or it was a systemwide protocol for the charge approval process, Moleski isn’t sure.
Either way, Attorney General Eby said there’s been a 20 per cent decline in the number of reports to Crown counsel from police (which contain the evidence and charge recommendations).
“Crown can’t address files that are not brought forward by police. And if police are not bringing files forward because they’re frustrated with Crown, then it’s kind of a vicious cycle,” said Eby.
In Prince George, as in many other B.C. communities, there are certain few individuals who have had dozens to hundreds of negative interactions with police, with minimal charges or convictions. One person in Prince George was responsible for 916 negative police contacts since 2016. Of those, 62 were mischief-related, and zero charges resulted.
From 2016 to 2021, 75 per cent fewer charges recommended by police were approved by Crown and 25 per cent more stays of proceedings (no convictions) were issued. According to some legal sources, the decline in charge approvals began decades ago when the standards for charge approval were raised from Crown needing a “reasonable chance” of conviction to “the substantial likelihood” of a conviction.
According to the BC Prosecution Service data, charge assessment approvals by Crown counsel dropped by 75 per cent and stays of proceedings (no convictions) increased 26 per cent between 2016 and 2021. [Image graph BC Urban Mayors]
There are many reasons why charges may or may not be recommended by police and approved – or not – by Crown, but the charge approval standards for prosecutors are clear, said Kevin Marks, president of the BC Crown Counsel Association.
Charge approval standards are a “two-part test” based on evidence provided by police, said Marks. “Is there a substantial likelihood of a conviction? And if that’s the case, is it in the public interest to lay a charge? If you meet that test as well, then charges will be laid against the offender.”
On many files “the evidence doesn’t cut it,” Marks said. “And either you go back and you tell the police ‘Look, if you get this, that, and the other thing, I think I can lay charge. But if you can’t, I can’t lay a charge.'”
In Canada, criminal charges are tried through either the federal or provincial court systems, with 95 per cent of cases heard through the latter. Essentially, drug and tax prosecutions are done in federal courts by the Public Prosecution Service of Canada, while B.C. prosecutors handle almost everything else that falls under the Criminal Code, Marks said.
Crown counsel’s number one job is to protect the citizens of British Columbia, he said. “Just like the police, public safety is number one.”
But Crown don’t make the laws and policies. “That’s the politicians. That’s the federal government and the provincial government. We, as Crown counsel, we are to uphold the rule of law… and to follow and apply those (court) decisions.”
Justice reforms needed
The mayors suggested stricter consequences for repeat property offenders, more community courts, more public prosecutors, and a review of charge assessment guidelines, among other possible measures to maintain “public confidence in the administration of justice.”
In response, Eby and provincial Solicitor General Mike Farnworth announced the formation of a two-person panel to investigate and recommend solutions “to interrupt behaviours” of prolific offenders related to inner city crime and random violent attacks. The panel will report back by September.
“Our compassion and concern and interaction on mental health and addiction can’t cloud the fact that we need communities to be safe,” Eby said in an interview last month. “Certain behaviours are unacceptable and we need to address them.”
The government-appointed panel will consider remedies such as a dedicated Crown counsel to deal with prolific offenders throughout the court system, electronic monitoring following bail or sentencing, and mandatory treatment for prolific offenders with addiction issues or mental illness.
Opposition critics and political pundits accused the government of kicking the can down the road instead of acting immediately.
“It’s the Attorney General’s job and the government’s job to keep people safe. How is waiting another four months keeping people safe?” asked BC Liberal Opposition attorney general critic Mike de Jong.
“It’s as if the Attorney General is not in charge of a ministry, and the Solicitor General doesn’t have a ministry fully staffed with subject matter experts that could have been providing advice over the last two years on how to deal with this problem,” says Kamloops-North Thompson MLA Peter Milobar in question period in May.
According to some legal experts and police, the roots of the problem reach back decades to the deinstitutionalization of mentally ill patients who were released back into the community before appropriate treatment and housing were in place to support their re-integration. This led to a proportionate increase in the prison population when many of these untreated individuals landed in jail.
Downstream effects of deinstitutionalization
Deinstitutionalization in Canada was in full swing by the 1990s when B.C. began transferring thousands of psychiatric patients from Coquitlam’s Riverview Hospital back into the community. The theory was that people could be more humanely supported in community. Except the community supports never fully materialized.
Even as far back as 2009, researchers warned: “Due to a deficiency in mental health resources, this population is at risk for homelessness, drug abuse, incarceration in jail, and suicide.”
With the ongoing illicit drug usage and overdoses, brain injuries and psychotic disorders are increasing the need for these services, yet these supports are still missing today.
“As we reduced the populations of institutionalized persons with mental health issues, they were put in the community, and unfortunately, a lot of them were just left to fend for themselves,” said RCMP Supt. Wright. “It’s tragic for some of them, because they don’t have the skills or the ability to (cope). There’s certainly an element of that population that is, on a daily basis, just being victimized. It’s really quite sad.”
Moleski tells of a young man who recently appeared on the downtown Prince George scene. Jacob is a 25-year-old man who climbs out of his wheelchair and repeatedly lays on the sidewalk. “We get about 25 calls a day about him. It’s awful,” says Moleski. “He’s laying in front of businesses all the time under this filth and he’s covered in feces.” Hospital staff told Moleski Jacob had a brain tumour when he was kid. “I don’t know why he’s out on the streets. His family’s not looking after him,” Moleski says. “The hospital refuses to take him so he’s just laying on the street.” Moleski doesn’t know his back story because Jacob is not able to converse. “He’s completely out of it. You can’t even talk to him. I don’t know why he’s not in a home,” says Moleski, adding, “He’s a drug addict now too.”
Falling through the cracks
The question now is, how to get these people the health care that they need, Wright said. “Because they’re still falling through the cracks today and causing a lot of issues.”
In Prince George, 27 per cent of all RCMP Criminal Code files generated between February 2021 and February 2022 were for mischief, 70 per cent of which were for loitering. Only one per cent of all files resulted in charges.
A few streets away is Paul, a drug user with severe mental illness. "If he's out (of jail), he's schizophrenic, he's not getting his medication, he’s out on the streets,” says Moleski. Somewhere around 40, Paul is calm, curious, if wholly unintelligible when he tries to speak earlier in the morning while waiting outside the safe injection site. When Moleski passes him a few hours later, Paul is milling about with a few others in front of a retail storefront. “We get about 10 calls on him a day. He just walks into random buildings. He won't leave. We're constantly kicking him out of places,” Moleski says. “He's a complete thief. I think it's part of his schizophrenia. He does damage to anything. Some of these people don't have the mental capability to be out on the road. This is one of these guys.’’
Incarceration makes people worse
Not surprisingly, a longitudinal study of British Columbians diagnosed with schizophrenia who were convicted of crimes over a 10-plus year period, revealed a “significantly reduced risk of offending” for those who adhered 80 per cent or more of the time to their antipsychotic medication regime, and high recidivism rates for those who didn’t stick with a medication schedule.
Incarceration makes most mentally unwell people worse, said Kevin Westell, a criminal defence attorney with Pender Litigation who also acts as public prosecutor in both federal and provincial courts.
“(If) you put them in to a pretrial facility where there is little space, little resources, little rehabilitative help, almost no mental health resources, it’s not hard to see how whatever mental health issue they were suffering from before they went in, is going to be exacerbated in pretrial corrections,” Westell said.
And holding people in custody will not protect them from illegal substance use, he said.
“There’s rampant drug use in our pretrial correctional institutions. So, the mentally ill are still exposed to drug use. They’re exposed to other kinds of violent criminal behaviour, and they’re not being provided the resources or the treatment they need.”
In fact, illegal drugs are so prevalent, the federal medium security prison in Drumheller, Alberta just ran a pilot supervised drug consumption project “because a high number of prisoners were overdosing,” according to a Globe and Mail report last month.
“I don’t have the answer,” Westell said. “But the answer is not more jail. There’s no question about that.”
Tilted legal landscape
Across societies, prison systems have long housed those with mental illness and substance use disorders. However, Canadian courts are now instructed by law to try to keep those same people out of the correctional system.
Several Supreme Court of Canada rulings – Jordan, Antic and Zora to name three – the 2019 Bill C-75 amendments to the Criminal Code, and the Gladue principles (which also flow from a Supreme Court decision) combine to direct the justice system, as a default, to not unduly detain, charge, restrict through conditions, or prosecute racialized or otherwise marginalized individuals. There are also protections for those breaching bail and limits on the amount of time that can elapse from charge stage to a trial.
Currently, bail or any conditions of bail recommended by Crown must only relate to ensuring the person shows up in court; protecting the safety of the public; and maintaining public confidence in the administration of justice.
“That balance has been lost,” said de Jong. “And it’s been lost to the detriment of public safety and the safety of people within communities.”
Among many other things, Bill C-75 instructs special consideration be given to “vulnerable and disadvantaged accused, including racialized populations, the homeless, the poor, or those suffering from mental illness or addiction.”
The Gladue principles stipulate an open-ended sentencing framework for Indigenous offenders in federal courts. In B.C., Crown counsel must also apply Gladue principles at the charge stage, as the BC Prosecution Service Crown counsel policy manual instructs Crown must “consider every reasonable alternative to prosecution before approving a criminal charge against an Indigenous person.”
Basically, because of who they are and the struggles they have, certain offenders cannot be unduly detained following arrest, and any conditions of release or bail must not unreasonably restrict their liberty. All of which can give the appearance of ‘catch-and-release,’ when accused individuals are not charged, or not detained, or are quickly returned to their community following an arrest.
No jail policy falls short
“If you’re going to take the Gladue approach, or the approach that says there’s a category of people… who shouldn’t be put in jail for the thing they’ve done, that only works if you have a funded available alternative,” said Geoffrey Plant, a practicing lawyer and former B.C. attorney general.
“Don’t be doing the first thing, unless you’re committed to do the second.”
But the alternative – properly resourced, evidence-based treatment programs and supportive housing facilities – is expensive, extensive, and far from simple, Plant said.
“It’s not good enough for government to say that we’ve got these well-intentioned policy ideas to keep people out of jail, if the result is that they just get put back on the streets in situations of the kind of acute distress that leads inevitably to the commission of more offences,” said Plant. “That’s not the right or acceptable policy approach.”
The street scene in Vancouver and the implications for social disorder of serious health issues is enormously different today in a fentanyl-laced world, than it was 10 years ago in a methamphetamine world, than it was 10 years before that in a heroin world, said Plant.
“So, the problem with public policy-solving here is the target is complex and it moves,” he said. “That’s not to excuse inaction. That’s just to say that if we’re going to make a difference here, we have to be committed over the long haul. We can’t set short term targets and think we’re going to win.”
“It’s a very worthy goal to try and reduce the representation of Indigenous persons, or whatever group, in prison. But I don’t think we do that by just arbitrarily letting them out,” the RCMP’s Wright said. Nor can it be achieved through sentencing or over the span of just a few years. “I think we need to address the systemic issues on the front end. And it’s going to take a generation to get there.”
In a May interview, Eby conceded the prolific offender situation was “a really vexing problem” with many nuances and moving unknowns.
“(But) if we accept, at its core, that these offences are driven by the physical health of this person, that they have a physical health problem of addiction and mental health that is causing them to be a danger and a threat for other people in the community, then the answer is clearly not jail,” Eby said. “But it’s not nothing either.”
Requiring an individual to obtain health services to stop being a threat to other people and themselves is not new, said Eby. “It exists in different ways in our system. But it’s not addressing these offenders and we need to find out why.”
Déjà vu all over again
The need to rein in the out-sized impact of a small group of prolific offenders is an old problem. While the types of crimes have varied – auto theft, home invasions, domestic violence – successive governments in B.C. have been studying and implementing strategies to deal with chronic offenders for decades.
As the BC Association of Chiefs of Police noted in 2008, Vancouver “prolific offenders account for a huge amount of crime and that sentencing practices… (don’t) serve as a deterrent.”
“When I was attorney general, which is increasingly a generation ago, the problem was called the revolving door,” said Plant, who served as attorney general for the B.C. Liberals from 2001 until 2005. “There would be reports of people who had been repeatedly convicted of offences – not just a dozen, but 50, 60, 80 offences.” Theft, failure to appear, breach of probation, bail or parole, more theft, on and on, the convictions would range from substantive to procedural.
“The list of these violations, and then sometimes convictions, would grow to alarming lengths without any apparent increase in the seriousness of consequences for the person committing these infractions,” recalled Plant, now a partner in the Vancouver law firm Gall Legge Grant Zwack.
“In addition to general public concern about the lack of accountability that this seemed to represent, there was at that point, widespread concern about all kinds of petty crime, most of which was being done to feed drug addictions,” Plant said.
Over his years in public service, Plant visited a lot of correctional facilities and was struck by a recurring thought: “These people are not criminal. These people are sick. They’re in need. They’re desperate. They’re marginalized. And we have somehow failed them by incarcerating them.”
In Prince George, there is an especially volatile mix of individuals needing complex supports because the city hosts the only detox clinic and the single remand centre for the entire northern B.C.
“Anybody who commits a violent crime and gets remanded into custody, they’ll come to the correctional centre here,” said Supt. Wright. When they get released, a lot of them head for the city’s downtown drug scene and decide to stay. “So, they come into our homeless and criminal populations.”
Nowhere else to go
A few blocks from the safe injection site, a grey-haired man lies on his back sprawled across the sidewalk. His head rests on a duffel bag.
“There’s another guy that shouldn’t be out on the street,” says Moleski. “He’s actually one of the guys that’s not friendly or polite though.” Wyatt is known for his erratic behaviour. Some days he’s easy going, other days he has angry outbursts.
He’s had over 100 police interactions in the last few years, most for mischief, causing a disturbance, assault, and other mental health files.
Moleski pulls to the curb in front of the man and hops from the vehicle.
“Hey Wyatt, how’re you doing, Bud?” “Ah yeah,” the man answers squinting up at the officer. “Just checking on you. You going to get some help, like we talked about?” Wyatt mumbles, then perks up with a reporter present. He wants to talk.
“I’ve been trying to get a home for a long time. It seems like I keep getting put on wait. I’m tired of getting up and getting kicked out every day. Nowhere to relax, feel safe,” he says. “My stuff keeps getting stolen. I put my phone by my head and it got stolen.” Of the dozens of people living homeless who agreed to be interviewed for this series – from Terrace, to Prince George, to Victoria – everyone complained of indiscriminate theft on the street. People get their knapsacks, clothing, even their boots and socks stolen from their feet when they’re zoned out on drugs. A fentanyl high leaves a person particularly vulnerable. When asked where he sleeps at night, Wyatt grows agitated. “They’re saying I assaulted somebody at (the shelter),” he tells Moleski. “I never did anything. I never assaulted anybody. I don’t even know what it’s about. I’m not physically abusive. I don’t hurt ladies. I don’t assault people.” Wyatt says he was banned from the shelter by police. Moleski assures him police have no restrictions on him, and that the ban likely came from the shelter provider.
In fact, Moleski says later, Wyatt was probably banned from all the shelters in town. To Wyatt, he says, “You don’t have any conditions from us that you can’t go into the shelter.” Shelters, the lowest-barrier housing available, aren’t structured or staffed to handle people suffering violent mental illness or extreme anti-social behaviours. Which leaves Wyatt, along with many others, living on the streets. “Seems like I’m always fighting. Everything seems like it’s all bottling up,” Wyatt says helplessly. “I can’t get anywhere. I don’t know what I’m doing wrong.”
Whatever the solutions are, they won’t be easy to achieve and they will require some societal introspection: When dealing with individuals suffering mental illness and substance addictions, what constitutes criminal behaviour? How far should personal agency be respected? At what point does community safety take precedence? To what extent should we care for those unable to care for themselves? Just what, exactly, do we owe each other?
Meanwhile, people should not have to accept a certain amount of crime as the price of living in a civilized society, said Plant.
“But the answer is obviously more complex than ‘Let’s catch them and put them in jail,’ he said. “That’s why we’re having a conversation.”
Read the rest of our series, If not prison, then where?:
Part II, Hardest to house: Gaps, flaws, failures.
Part III, The quandary of mandatory care.