With SCAN, we’re eroding safeguards against state power

"Safer communities and neighbourhoods" is another one of those things that no one can really argue against.

“Safer communities and neighbourhoods” is another one of those things that no one can really argue against.

Unfortunately, lurking behind a title espousing such lofty goals is legislation that shows our society would prefer to abandon time-honoured safeguards against state power in favour of policing on the cheap.

The Safer Communities and Neighbourhoods Act (commonly known as SCAN) is legislation we have had here in the Yukon for about a decade now. Modeled on laws that exist in most other provinces of Canada, the act uses semantic pretzels to create a pseudo-law enforcement body unencumbered by many of the pesky restraints that our legal system places on traditional police forces.

To understand why we have SCAN, we first have to understand why our system of criminal law has traditionally imposed such a significant burden on the state.

The state is big. It is far bigger than you or I. The 17th century political philosopher Thomas Hobbes called it “Leviathan” after a giant sea monster featured in ancient literature. Few among us have the resources to go toe to toe with this behemoth.

Recognizing the overwhelming power of the state, our ancestors wisely put in place various safeguards to ensure that the ordinary citizens stood a chance when the full weight of government resources was brought to bear. It is why we have courts, and due process, and along with them the presumption of innocence and the requirement of proof beyond a reasonable doubt.

SCAN comes from the perspective that such concerns shouldn’t stand in the way of “getting the job done.” It does away with some of these protections through what I see as little more than fancy lawyer talk – reclassifying processes that are inherently state driven as “civil,” to allow the giant sea monster to fight alleged low-level criminals on the same playing field.

Civil forfeiture or proceeds of crime legislation operates on similar philosophy. Much like SCAN, these laws involve setting the bar a lot lower than the criminal law does before the state can act against you. Such legislation allows the government to seize your property because you “probably” acquired it by selling drugs. Again it does not need to “be sure.”

In a way civil forfeiture is even worse than SCAN. Civil forfeiture actually helps government get something we all know it wants – money – and has become horribly corrupted in many of the jurisdictions where it has been implemented.

Thanks to a grassroots public outcry, the previous Fentie-led Yukon Party government scrapped plans to bring in such legislation back in 2010, and the current incarnation hasn’t given any indication that it intends to try again.

But I digress.

SCAN defenders would say that times have changed. They correctly note that governing politicians are unable to settle political scores by sending SCAN officers to knock down your door. Boosters portray the state as a benign, well-intentioned force and say that the only ones who have anything to worry about are those who are up to no good. I’m unconvinced.

Times may have changed, but people haven’t. My concern isn’t that by creating SCAN we’re on a non-stop train to a totalitarian dictatorship. I have faith in the institutional safeguard our country against an over-intrusive state.

But I have grave concerns about giving fallible people that level of power and authority. Were there assurances that the power would be invariably wielded judiciously, by scrupulous individuals with a sense of restraint and justice, SCAN may be tolerable. But there are no such guarantees, nor can such guarantees be given.

People are fallible. Even my meagre, sheltered life experience has provided me with numerous examples of interactions with unreasonable people in positions of authority drunk on their own power and willing to use their own discretion inappropriately. I shudder at the thought of potentially empowering such individuals with the authority of SCAN.

There is also a lack of institutional safeguards in SCAN. SCAN has no equivalent to the Commission for Public Complaints Against the RCMP. Some state actions of SCAN must be conducted by court application and there are provisions for appeal. But applications operate based on the substantially reduced “civil” burden imposed on the much better funded state, and appeals beyond the Supreme Court may only be made on “questions of law” and only with leave. The government has really stacked the decks in its favour.

And most importantly, let us be honest with ourselves: we don’t need SCAN. Cases can be built and evidence gathered to overcome the hurdles imposed by criminal law. The criminal burden is hardly insurmountable.

We just don’t want to pay for it. Justice is expensive and time consuming. Moreover, once in a while bad people just get away with being bad people.

And being sure that someone is peddling drugs before we throw them out of their home is just so hard. It is so much easier to kick them to the curb after determining that they’re “probably” drug dealers (In my head I’m saying those last two lines with the tone of a whiney five-year-old who doesn’t want to do his chores).

But has SCAN really made us any safer? Its success is highly debatable. Ten years in and drugs are still a big problem in our community. All SCAN has really done is move the problem from point A to point B. The notorious Wheeler Street drug house may be gone, but if recent news stories are any indication, knocking down drug dealing operations is little more than an elaborate game of “whack a mole.”

Orwellian-titled legislation aside, I don’t buy that my community is made “safer” by unleashing bureaucrats without the restraints of wise and prudent legal principles developed over time to protect us all against state power.

Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted


Wyatt’s World for Jan. 20, 2021

A Copper Ridge resident clears their driveway after a massive over night snowfall in Whitehorse on Nov. 2, 2020. Environment Canada has issued a winter storm warning for the Whitehorse and Haines Junction areas for Jan. 18. (Crystal Schick/Yukon News file)
Winter storm warning for Haines Junction and Whitehorse

Environment Canada says the storm will develop Monday and last until Tuesday

Maria Metzen off the start line of the Yukon Dog Mushers Association’s sled dog race on Jan. 9. (Gabrielle Plonka/Yukon News)
Mushers race in preparation for FirstMate Babe Southwick

The annual race is set for Feb. 12 and 13.

The Yukon government is making changes to the medical travel system, including doubling the per diem and making destinations for medical services more flexible. (Joel Krahn/Yukon News file)
Subsidy for medical travel doubled with more supports coming

The change was recommended in the Putting People First report endorsed by the government

Chloe Sergerie, who was fined $500 under the <em>Civil Emergency Measures Act</em> on Jan. 12, says she made the safest choice available to her when she entered the territory. (Mike Thomas/Yukon News file)
Woman fined $500 under CEMA says she made ‘safest decision’ available

Filling out a declaration at the airport was contrary to self-isolation, says accused

Yukon University has added seven members to its board of governors in recent months. (Crystal Schick/Yukon News file)
New members named to Yukon U’s board of governors

Required number of board members now up to 17

Yukonomist Keith Halliday
Yukonomist: Your Northern regulatory adventure awaits!

“Your Northern adventure awaits!” blared the headline on a recent YESAB assessment… Continue reading

Yukoner Shirley Chua-Tan is taking on the role of vice-chair of the social inclusion working group with the Canadian Academy of Health Sciences’ oversight panel and working groups for the autism assessment. (Submitted)
Canadian Academy of Health Sciences names Yukoner to panel

Shirley Chua-Tan is well-known for a number of roles she plays in… Continue reading

The Fish Lake area viewed from the top of Haeckel Hill on Sept. 11, 2018. The Yukon government and Kwanlin Dün First Nation (KDFN) announced they are in the beginning stages of a local area planning process for the area. (Crystal Schick/Yukon News file)
Local area planning for Fish Lake announced

The Government of Yukon and Kwanlin Dün First Nation (KDFN) announced in… Continue reading

Whitehorse City Hall. (Joel Krahn/Yukon News file)
City hall, briefly

A look at decisions made by Whitehorse city council this week

Fire damage, photographed on Jan. 11, to a downtown apartment building which occurred late in the evening on Jan. 8. Zander Firth, 20, from Inuvik, was charged with the arson and is facing several other charges following his Jan. 12 court appearance. (Gabrielle Plonka/Yukon News)
More charges for arson suspect

The Inuvik man charged in relation to the fire at Ryder Apartments… Continue reading

The grace period for the new Yukon lobbyist registry has come to an end and those who seek to influence politicians will now need to report their efforts to a public database. (Mike Thomas/Yukon News file)
Grace period for new lobbyist registry ends

So far nine lobbyists have registered their activities with politicians in the territory

Most Read