Commentary: A look at the Yukon’s latest SCAN decision

It appears to have been more thorough and lengthy than many serious criminal investigations I have encountered.

Luke Faught

On March 22, in Director of Public Safety and Investigations vs. Arielle Courtney Lee Devilliers, Supreme Court Justice Duncan ordered a 90-day eviction (with seven days notice) for all tenants of 81-4 Prospector Road, a trailer in the Kopper King neighborhood under Yukon’s Safer Communities and Neighborhoods Act (SCAN).

An anonymous resident whose slumber was disturbed triggered a multi-month investigation that involved SCAN investigators, RCMP members, and a fire investigator. They deployed sophisticated surveillance techniques and a significant amount of state resources were used in the investigation and litigation of the matter. The housing rights of any occupants were compromised.

No one has been charged criminally to my knowledge. Through its investigation, legal process, and consequences, the case illustrates the power of state surveillance in Canadian society.

Five complaints on separate occasions from two witnesses triggered SCAN investigations.

The first complaint was made in 2017 and closed for insufficient evidence.

Four more complaints between July 2018 and January 2019 triggered the investigation that led to these court proceedings. An anonymous complaint (the identity of the complainants is protected under the act) indicated there was a lot of foot and vehicle traffic day and night. This traffic and noise was affecting the sleep of the complainant, who was “frustrated and fed up”.

The investigation that followed was thorough. Officers deployed video surveillance, live surveillance, and mobile surveillance between November and December of 2018, and confirmed the complaints.

Officers observed a lot of activity consistent with illegal drug operations, including a high volume of short duration visits to the property, and the presence of convicted drug offenders at the property.

Investigators also noted people associated with the property were using law enforcement evasion techniques, including: switching vehicles and license plates, “heat checks” (driving in a way to evade law enforcement, including doubling back, sudden turns, roundabout routes, and turning one way while signaling the other way), and vehicles registered to other people.

The investigators’ affidavits supported Justice Duncan’s finding that the residence was being used for drug-related purposes. She relied on precedent in further ruling such activity inherently affects the safety and security of a neighborhood and therefore a 90-day eviction order was justified under the law.

It is important to note that the hearing did not proceed with two fully represented opposing parties. The Director of Public Safety and Investigations was represented by lawyer Kelly McGill. However Ms. Devilliers did not have a lawyer present or attend the hearing herself, even though:

• The judge previously adjourned the hearing to give Ms. Devilliers time to file any evidence in support of her case;

• She was given the opportunity to appear by telephone; and

• The court tried to reach her five times by phone on the hearing date before proceeding in her absence.

Ms. Devillier’s absence meant that the director’s evidence was not challenged or tested by the opposing side, and therefore it was open to the judge to accept it at full value. The director’s evidence included sworn statements by peace officers and a fire investigator. Opposing parties are allowed to thoroughly question the authors to test the quality of their evidence.

That of course did not happen here. In fact there were no legal arguments made by Ms. Devilliers or a competent lawyer to persuade the judge to rule in her favour.

Critics of SCAN and its counterparts in other provinces worried such legislation could lead to profiling or operate in a discriminatory way against racialized communities and/or those with drug and mental-health problems. As Ms. Devilliers did not attend the hearing, provide any evidence about her personal circumstances, or challenge the evidence, these critiques cannot be addressed on the available facts.

SCAN legislation has also been criticized because it is overly broad. Critics quoted in a 2014 National Post article point out that “shutting down a crack house is one thing, but SCAN acts have also been levelled against households with just one addicted member of an otherwise law-abiding family. They’ve targeted boarding houses, late-night bars, massage parlours and even corner store accused of selling mouthwash to homeless people”.

That concern doesn’t arise in this case, as the unchallenged evidence strongly suggests the target residence was being used for a “crack house”-type purpose (which is unquestionably serious) and therefore the act was deployed legitimately.

In January 2018 Jacqueline Davies, the acting director of public safety and investigations with Yukon’s Department of Justice responded to concerns that the act could be deployed on inadequate information or weak evidence. “We have a very high threshold,” she told the CBC. “Once we get the complaint, we thoroughly investigate it. Investigations aren’t done overnight, they take a long time to do.”

The facts of this case back up Ms. Davies’ assertions. This was undoubtedly a detailed investigation into both the residence and the people associated with it, conducted by well-trained officers. Indeed, it appears to have been more thorough and lengthy than many serious criminal investigations I have encountered.

Luke Faught is Senior Criminal Counsel at the Yukon Legal Services Society. His practice focuses heavily on state and police powers.

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