On June 9, you issued an open letter responding to Human Rights Watch’s May 2003 report, “Abusing the User,” on police misconduct in the Downtown Eastside of Vancouver and its impact on injection drug users. Unfortunately, your letter attempts to discredit Human Rights Watch rather than to address the abuses detailed in our report. I am writing to express my hope that the city of Vancouver will respond with a more substantive analysis and serious commitment to end these abuses.
As you know, the interconnected epidemics of HIV/AIDS and injection drug use have had a uniquely devastating impact on the Downtown Eastside of Vancouver. At the time of your 2002 mayoral campaign, you espoused a “four pillar” approach to this problem with balanced emphasis on treatment for addiction, prevention of addiction, harm reduction, and law enforcement. Your election on that platform in November 2002 was followed with interest and hope beyond Vancouver and Canada. Human Rights Watch was encouraged by your support for all four of these “pillars,” including your promise to do everything possible to establish a safe injection site as a matter of urgency in the Downtown Eastside. Your support for a balanced approach to fighting injection drug use was never more evident than in a Wall Street Journal article on April 1, in which you were quoted as saying, “If I thought tripling the police force would solve this problem, I would do it. But that’s not the case. We’re dealing with addiction and disease, and prison doesn’t solve either of those problems.”
Six days after this article appeared, the Vancouver Police Department, over the objections of the city council, tripled the police presence in the Downtown Eastside. This has proved to be the city’s most conspicuous anti-drug initiative since your taking office. Numerous studies from Canada and many countries, including a recent study by the British Columbia Centre for Excellence on HIV/AIDS of a March 2003 police action in the Downtown Eastside, have demonstrated that relying principally on intensive policing in anti-drug policy is unlikely to be successful and poses many risks. While the stated objective of the recent crackdown was to target drug dealers, its apparent effect has been to drive injection drug users underground and potentially impede their access to health and harm reduction services.
“Four pillars” and the health impact of the police crackdown
In your open letter to Human Rights Watch, you suggest that our report misrepresented the government’s achievements in building the “four pillars” of its anti-drug strategy and thus “cast a pall over” the strategy. But our report clearly credits the city, the province and the federal government with important steps to establish harm reduction measures such as needle exchange and the long awaited safe injection site. Indeed, the report states explicitly that one of the most important concerns about the police crackdown that began on April 7 in the Downtown Eastside is that it will undermine the promising investments already made in harm reduction services. If anything has “cast a pall” over the four pillars strategy, it is your endorsement of this crackdown and subsequent reluctance to address concerns about its health impact.
To our knowledge, the public health impact of the crackdown still awaits a rigorous and independent evaluation. Your letter refers to a May 9 report by the Vancouver Coastal Health Authority, the provincial body responsible for implementing health services in the city, describing the impact of the police crackdown on needle exchange services in the Downtown Eastside. This report contains promising data from the Downtown Eastside Youth Activities Society (DEYAS) that there was “no decrease in the number of needles exchanged since April 7” when the crackdown began. We have not seen the May 9 report, but a comparison of data circulated by the Coastal Health Authority for 2002 with 2003 data, including the figures reported at our meeting with you on June 10, appears to show a decline in syringes exchanged between 2002 and 2003 in the corresponding periods of March to May. As a representative from the Coastal Health Authority reported in that meeting, it is a normal seasonal trend for absolute numbers of syringes to rise from March to May. Clearly an in-depth evaluation is still needed.
Any evaluation of the public health impact of the police crackdown should take into account the needle exchange volumes reported by the mobile exchange service of the Vancouver Area Network of Drug Users (VANDU). The VANDU numbers are particularly relevant because the organization’s late-night mobile exchange aims to reach the most marginalized drug users in the Downtown Eastside who are less likely than other users to seek syringes at fixed needle exchanges during the day. Your open letter notes that the Coastal Health Authority did not gather syringe figures from the VANDU service for its May 9 report. We are dismayed that the Coastal Health Authority is apparently complacent about the decline in the number of needles exchanged by the sidewalk-based mobile service of VANDU early in the crackdown, a decline that continued beyond the first-week data that our report was able to present.
On June 9, VANDU volunteers indicated to one of our staff that while needle numbers have recovered somewhat in this population since the first few weeks of the crackdown, the proportion of needles distributed against the exchange of used needles has dropped significantly compared to needles given as “loaners” (not against the exchange of a used syringe). The needle exchange workers attribute this trend to the continuing fear of some users to carry needles because of the police presence. This higher ratio of “loaners” should be of concern to the health authorities since it indicates that greater numbers of syringes are not being safely returned and are perhaps being shared among users or disposed of unsafely. This element of needle exchange services should also figure in the full evaluation of the impact of the heavy police presence.
You note that “HRW did not contact Vancouver Coastal Health in the course of its research.” Many of the health providers we interviewed were either employees or volunteers of programs supported by Vancouver Coastal Health.
Criticisms of Human Rights Watch’s methods and legal competence
Human Rights Watch’s report contains twenty-six first-hand accounts of misconduct on the part of the Vancouver Police Department, including unnecessary use of force, illegal search and seizure, and harassment through the use of petty offenses. In your open letter, you make various criticisms of Human Rights Watch’s research methods, including characterizing the first-hand accounts presented in our report as “hearsay”. Your use of the term “hearsay” seems aimed to belittle these accounts. Our findings are based on direct eyewitness accounts, accounts that if made in court would not be considered hearsay. In attacking these accounts as hearsay, you are impugning the source of the information, rather than the validity of the information itself; all too often in our work we have found that the genuine concerns of drug users and other stigmatized persons are not given the seriousness they deserve.
You also criticize the use of anonymous accounts. The accounts in our report were in some but not all cases anonymous because witnesses said they feared retribution if their identities were revealed. You further criticize Human Rights Watch for not “providing the information necessary to confront the issues raised” and to allow formal investigation of each incident. Yet the purpose of our report is not to make a legal case against the Vancouver police, but to use first-hand accounts to show both a pattern of abuse and the inadequacy of existing complaint procedures, and to prompt an official independent investigation.
You note that Human Rights Watch “spent only four days in the city” before releasing our findings. In fact, our researchers were able to gather more first-hand testimony in those four days than we would have been able to gather in four months in many other countries. The diversity of the places in which Human Rights Watch conducts its investigations means we do not adhere to a fixed research period for all of our research. In this case, we completed our interviews once we had collected enough testimony to disclose a credible pattern of police misconduct. We reviewed numerous official statements in the local and national media, interviewed two city officials who spoke very knowledgeably about the “four pillars” strategy, and had a lengthy telephone conversation with Inspector Bob Rich of the Vancouver Police Department.
You further claim that Human Rights Watch’s report “betrays a weak understanding of Canadian law.” Our report was co-authored by a Canadian lawyer who recently completed a judicial clerkship at the Supreme Court of Canada. The account of Canadian law provided in your letter does not differ from what we say in the report. According to your letter, “the HRW report claims that police can only search a person after lawful arrest with a search warrant.” In fact, we state:
In Canada, searches by the police of a person’s possessions or full searches of a person’s body are legal when the person has been arrested or when there is a duly issued search warrant. [Footnote 41] In other cases, police must demonstrate either that the individual gave his informed consent to be searched or that exigent circumstances, such as a threat to the officers’ safety, necessitated the search.
Footnote 41 states:
See Hunter v. Southam Inc.,  2 S.C.R. 145. Police may conduct a “pat down” search for weapons when they have “articulable cause” to detain someone for investigative purposes: R. v. Ferris,  B.C.J. No. 1415. Strip searches are a special category of body search and are discussed below.
You claim that “all the facts surrounding each incident” would need to be known in order to assess the merits of our allegations. This assumes that HRW researchers do not attempt to ascertain these facts before drawing their conclusions. In some cases, interviewees said they had been searched under conditions where police clearly had articulable cause or reasonable and probably grounds; these cases were omitted from our report. Other cases were omitted because witnesses contradicted themselves, did not remember events clearly, or had obviously committed a criminal offense justifying police action. (We also omitted the numerous incidents where our researchers observed the police being verbally abusive to persons on the sidewalks.) Even following this careful vetting process, we found many cases where there was solid and credible evidence of abusive action by the police.
You write that the report “contains serious factual errors” that undermine our credibility. The only potential factual error we can find relates to the account by one of the witnesses cited in the report on the use of leg irons by the VPD. We stand corrected on this point, though the use of leg restraints under some circumstances in Canada led us to conclude that the allegation was not a priori incredible. The fact that one witness out of twenty-six may have misrepresented or misremembered part of his account does not cast doubt on every other witness.
Need for independent oversight of the police
Human Rights Watch’s reporting is no substitute for an independent adjudication of police misconduct by a body other than the police department. Unfortunately this does not exist in Vancouver or British Columbia, at least not in the typical case. As we note in our report, the Police Complaint Commissioner at the provincial level as a matter of usual procedure turns over complaints against the police to the investigators of the police department in question. In your open letter, you note that the Police Complaint Commissioner “can ask a force not involved in a matter to conduct the investigation”; however, this is rarely done. Our recommendation is that the province consider establishing an investigation team that at least for some categories of complaints against the police does not comprise local police inspectors, such as the system of independent provincial inspectors in place in Ontario.
Given the numerous complaints about police misconduct against the Vancouver Police Department that have been reported in the national and international press in recent years, including the department’s alleged mishandling of the case of the sixty missing sex workers and other women and the incident of alleged police abuse of three suspected drug dealers in Stanley Park in January 2003, we would think that the city and the police department would wish to take swift and effective measures to demonstrate a conscientious regard for the need for truly independent oversight of policing in Vancouver.
One of the allegations in our report was that the police conducted a public strip search of a man on the evening of April 12. We are pleased that the police department responded to this allegation by tracking down the people involved and conducting interviews. Again, however, an independent evaluation of the incident still has not occurred. The police report quoted in your open letter says that “the [suspect’s] second layer of clothing—the sweatpants—remained up at all times.” This is simply not what our researchers observed. Your letter also suggests that the incident took place at 9:35 p.m., not “a little before midnight” as our report states. Our researchers clearly reported both the time of the events they observed and that they were not present at the beginning of the incident two hours earlier. The difficulty of resolving these sorts of factual questions underlines the need for an independent body to investigate allegations of police abuse.
On June 10, you stated to the press that Human Rights Watch’s methods are more suitable to countries such as Afghanistan or Kosovo than to places such as Canada where there is a free press and functioning court system. Ideally, it would be the case in Canada, the United States and other democratic countries where Human Rights Watch does investigations that these mechanisms would root out and correct abuses. However, where complaints about official misconduct are not fully and independently investigated, we are prompted to act.
We look forward to the time when there will be genuinely independent oversight of police actions in Vancouver and when the city’s commitment to the treatment, prevention and harm reduction elements of its laudable “four pillar” strategy against drugs will be as evident to residents and visitors alike as the police crackdown in the Downtown Eastside. Unfortunately, a campaign designed to distract the public by shooting the messenger rather than taking the message seriously is unlikely to move us toward that goal.