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.

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