The hearing for the legal challenge of the Safer Communities and Neighbourhoods (SCAN) Act concluded on the evening of Nov. 10, following closing arguments from the petitioner’s lawyer, the Crown and the Canadian Civil Liberties Association (CCLA), which is an intervenor in the case.
Celia Wright, the petitioner, wants the section of the act allowing landlords to terminate tenancy agreements with little notice struck down by the court. Wright was issued a SCAN Act eviction notice in late 2020. The month prior to receiving her eviction notice from SCAN unit officers, Wright’s residence was raided by police, who discovered drugs, more than $13,000 in cash, a loaded handgun and stolen property. Charges related to the raid are still before the courts.
The SCAN Act allows the Yukon government to settle complaints of alleged illicit activity at a property by serving an eviction notice with as little as five days warning, regardless of any existing tenancy agreements.
Vincent Larochelle, the lawyer who brought the challenge forward on behalf of Wright, focused on the arbitrary nature of the legislation and its impact on personal liberty in his concluding arguments.
Larochelle said that in the landlord and tenant relationship, tenants are almost always the weaker party and that the power granted by the SCAN Act is open for abuse. He also pointed out perceived conflicts between the SCAN Act and the Residential Landlord and Tenant Act.
He argued that evictions by the SCAN unit impact a tenant’s liberty by infringing on their autonomy to decide where they live. Larochelle added that the government serving someone with a short-term eviction notice affects that individual’s personal space “very intimately.”
Larochelle told the court that he’d also presented evidence that evictions by the SCAN unit can result in homelessness, namely that Wright ended up living in a trailer with no running water after she was evicted and that her mother-in-law had to live in a tent at Robert Service Campground.
“You are targeting inherently vulnerable people and making them more vulnerable to substance use,” Larochelle told the court while noting that removing a person’s housing can result in negative social consequences, such as increased substance use.
CCLA lawyer Fraser Harland pushed against the notion that eviction orders issued under the SCAN Act are simply “landlord-tenant relations.” He argued that government involvement plays a key role throughout the eviction process, from soliciting and collecting complaints to serving eviction notices.
Harland also highlighted the adverse impact of the legislation on Indigenous communities and noted that it impacts people who are not a danger to public safety.
As an example of the latter, Harland pointed to the potential eviction of prostitutes under the SCAN Act. He noted that it is not illegal to sell sex in Canada and that under the act, a sex worker could be removed from their home without having committed a crime. Prostitution-related activities are listed among the illegal activities the SCAN unit will investigate.
In the Crown’s closing statements, lawyer Kelly McGill told the court that a decision to accept Wright’s argument — that she had a right to remain in the home she was living in — could have significant ramifications on law in the Yukon and beyond.
McGill also noted that striking down the section of the SCAN Act that allows for evictions won’t necessarily result in fewer evictions, as the SCAN unit can still conduct investigations and provide their findings to landlords who can pursue a tenant’s expulsion through the Residential Landlord and Tenant Act.
She argued that Wright’s right to life was not violated — she was simply required to move on short notice — and that, while people have a right to choose where they live, they do not have the right to remain in a specific house.
McGill added that the SCAN Act empowers community members to complain about illicit activities at a property without confronting the people living there.
The act was also credited with relieving landlords of the need to surveil their property if they believe it is being used for drug trafficking or other crimes. It was noted throughout the hearing that landlords are often scared to confront problem tenants.
The Crown also criticized elements of the testimony the court heard from experts called by Larochelle. The definition of homelessness provided by Stephen Gaetz, a York University professor and president of the Canadian Observatory on Homelessness, was characterized by McGill as “incredibly broad.”
Crown attorney Amy Porteous further noted that the expert testimony of Carmela Murdocca, York research chair in reparative and racial justice, came across as unfamiliar with the Yukon’s SCAN Act. Porteous said that much of Murdocca’s testimony focused on complaint-based property ordinances in other jurisdictions that are very different from the Yukon’s legislation.
Additionally, parts of Murdocca’s research were highlighted by the Crown as poorly cited or including incorrect citations. One example given in court was that a research paper by Murdocca incorrectly attributed the contents of a quote by Yukon NDP leader Kate White to Yukon-based advocacy groups.
Following the conclusion of closing arguments, Larochelle told the News that he’s confident his client and himself put their best foot forward and that the hearing played out much the way he expected.
“There were no surprises, no curveballs, the evidentiary record is essentially the way I thought it would pan out […] I’m happy with the result. Obviously, I have no idea what the decision is going to be […], but all I can say is that I’m happy with the way things turned out,” Larochelle said.
When asked when he expects a decision in the case to be delivered by Chief Justice Suzanne Duncan, Larochelle said, “All we can say is we are waiting for the decision to arrive, and there’s no saying when it will. But we are comforted in the knowledge that courts do everything they can to render decisions as quickly as reasonably possible.”
Contact Matthew Bossons at matthew.bossons@yukon-news.com