SCAN legislation ‘terrible,’ ‘Draconian,’ unconstitutional

Tenants of a Kopper King trailer who were served an eviction notice this week have no easy way to appeal the decision that’s left them homeless.

Tenants of a Kopper King trailer who were served an eviction notice this week have no easy way to appeal the decision that’s left them homeless.

“There isn’t an (informal) appeal process for that type of eviction” apart from taking the government to court, said Justice department spokesperson Dan Cable.

Yukon Justice department employees served the notice Tuesday morning on behalf of the property’s landlord following an investigation.

It’s the first action under the Yukon’s Safer Communities and Neighbourhoods Act.

The law gives government investigators wide-ranging powers to shut down properties suspected of housing illegal activities, like drug trafficking, bootlegging and prostitution.

But legal and civil rights experts interviewed by the News call the legislation “terrible” and “Draconian” and suggest it could be challenged in court.

And they criticized sections of the law that allow a landlord to evict a tenant with five days notice, the law’s loose wording and the scant proof it requires to oust tenants from their home.

They also suggested it may violate the Constitution.

Basically, there are two ways the government can now force suspected lawbreakers from a property under the new law.

The SCAN director could go to court for a community safety order to turf the tenants.

In that case, the tenants have 14 days to appeal the decision.

Going to court would usually be a last resort, said Cable.

Most complaints will most likely be resolved through “informal action.”

That could mean approaching the landlord and serving the eviction with their co-operation, which is what happened this week.

And, in that case, the tenants have no way to fight the eviction unless they sue.

And they have no right to see the evidence against them unless they go to court.

“They call it ‘informal action,’ which makes it sound light and fluffy, but it’s probably the most ominous, Draconian thing one could do,” said Winnipeg defence lawyer Josh Weinstein.

Weinstein has worked with Manitoba’s Safer Communities and Neighbourhoods Act, which is similar to the Yukon’s legislation.

It has been effect in the province for five years.

If the complaint is resolved through “informal action,” and a co-operative landlord agrees to oust the suspected criminals, then whatever lease or agreement the landlord and tenant had becomes null and void.

The landlord may terminate the tenancy with five day’s notice.

Under the territory’s Landlord and Tenant Act, one month to one year’s notice must be given before someone’s lease is terminated, unless they are on a week-to-week agreement, in which case they can be given one week’s notice.

(There is a clause in that act for a “substantial breach of agreement.” In it, tenants can be ousted with 14 day’s notice, but the landlord must also state the details of the breech and reasons for the eviction.)

The safer communities legislation trumps the Landlord Tenant Act, and any other act it may contradict.

Weinstein says that the landlord act’s rules are there for a reason.

“It recognizes that there’s a sympathetic factor to an individual,” he said.

That means people are not tossed out in cold weather without notice unless there are extenuating circumstances.

“I guess these people aren’t worthy of those sympathies,” Weinstein said, noting the legislation will probably affect people with low incomes and addictions.

“Potentially the indigent will be targeted, and they’ll have no place to go,” said Weinstein.

They also most likely have limited financial resources and education, which limits their ability to challenge the legislation.

“Generally these are not going to be individuals who can go bouncing to a private lawyer’s office to appeal,” said Yukon Legal Aid executive director Nils Clarke.

“The ability for people to test this legislation is probably limited, but that doesn’t make it right,” said Clarke.

And the loose wording allows the government to have a tenant evicted (with the co-operation of the landlord) without having to show evidence, said Weinstein, adding that’s “frightening.”

And there’s no appeal process.

“There are problems with having a proceeding where you’re very adversely affected and you haven’t even been heard,” said Weinstein.

“You don’t have a chance to make any representations, and suddenly you’re evicted.”

The law’s Section 3, which outlines how the director is to proceed after receiving a complaint, is also pretty loose, said Weinstein.

They are allowed to, “take any other action that the director considers appropriate.”

“That’s pretty broad,” Weinstein said.

“I’m never a fan of that type of language. On the one hand, you’re trying to specify things that the director can do, and then specify the things the director may do, which includes anything they consider appropriate.

“It provides no guidance for the person who may carry out these activities,” he said.

While giving the director leeway in decision-making, it also gives them access to detailed personal information.

“This is a terrible, terrible piece of legislation,” said the BC Civil Liberties Association’s executive director Murray Mollard.

Under it, the director and investigators are considered a “law-enforcement agency,” which gives them access to personal information about individuals through the Access to Information and Protection of Privacy Act.

Under that legislation, “personal information” includes things like name, age, fingerprints, blood type, political beliefs, heath-care history, finances, employment, education and personal views or opinions.

The safer communities act gives the director access to the “personal information” of anybody who owns, occupies or enters the property under investigation.

“From a due-process point of view, it really is a flawed piece of legislation,” said Mollard. “It’s quite breathtaking in terms of its power.”

Another troubling aspect of the legislation is that it only requires investigators prove the illegal activity is probably happening at the residence, said Mollard.

Since SCAN is a civil law, investigators must only prove that “activities have been occurring on or near the property that give rise to a reasonable inference that” it’s a booze can, drug house or prostitution den, according to the act.

“The standard of proof is so low — this reasonable inference, is simply too low for such a serious consequence as losing one’s home,” said Mollard from his Vancouver office.

This is different than what’s needed to charge someone with a criminal offence, which requires proof beyond a reasonable doubt.

“We gather sufficient evidence so that, if we have to go to court, we’re on firm ground,” said Cable.

“The people that we hired are professionals and we’re not trying to kick people out of their homes.”

Another problem is that the legislation encourages neighbours to spy on one another, said Mollard.

Because it is complaint-driven it could pit neighbour against neighbour or allow one resident to be targeted unfairly, said Mollard.

 “It promotes a vigilantism that’s really questionable.”

“It encourages citizens to rat on each other,” said Weinstein.

“It deputizes citizens to rat on another person for suspicious activity, and that’s never safe.”

And some aspects of the act may violate the Canadian Charter of Rights and Freedoms, says Toronto defence lawyer Clayton Ruby.

For example, perhaps the most quoted section of the charter, Section 7, guarantees “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

But that’s something that would have to be proved through a court action against the legislation.

Regardless of whether the act is unconstitutional, Ruby calls it “bad politics.”

The legislation may be overstepping its bounds because the territory may be trying to legislate things that are in the federal domain, said Ruby.

For example, Prince Edward Island passed a law saying that only certain accredited hospitals could perform abortions.

But then the court looked at it and nixed the statute.

Decreeing that only some hospitals can perform abortions is, in essence, banning abortions.

And only the government of Canada can do that under the Criminal Code.

“It was unconstitutional for them to do it as a province,” said Ruby from Toronto.

“That’s the same question you’ve got: Can a territorial legislation deal with a criminal law? And the answer is: I don’t know — each case has to be looked at differently,” said Ruby.

If the legislation were challenged it could go a couple of ways, said Weinstein.

Its constitutionality could be challenged by an individual through one specific case, or through an organization, which could seek a declaration from a superior court to invalidate the legislation, or parts of the legislation that are found to violate the charter, he said.

However, lawyers in Saskatchewan or Manitoba were not aware of any challenges to the legislation in those provinces.

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