Yukon judge strikes down section of SCAN Act that allowed evictions with only 5 days' notice

A Yukon judge has struck down a section of the territory's Safer Communities and Neighbourhoods (SCAN) Act that allowed for evictions with just five days' notice on the grounds that it was unconstitutional.

In a decision published Thursday, Yukon Supreme Court Chief Justice Suzanne Duncan wrote that the government-facilitated, short-notice evictions permitted under the section could cause "extraordinary psychological suffering" amountingto an unjustifiable infringement of the Canadian Charter of Rights and Freedoms specifically, the right to "security of the person."

The ruling marks a victory for legal and community advocates who have been outspoken against the legislation, commonly referred to as SCAN, and the conclusion of a civil case launched by a Whitehorse woman accused of drug trafficking in 2020.

SCAN investigators served Celia Wright with a five-day eviction notice on Dec. 9 that year following complaints about alleged drug activityat her rental property in the city'sCowley Creek subdivision. While Wright and her spouse were previouslyarrested by the RCMP on drug-related charges, the eviction notice was separate from the criminal justice proceedings and applied to everyone living at the property, including Wright's eight children and elderly mother-in-law.

Wright filed a constitutional challenge of section 3(2) of the SCAN Act,which allowed for evictions like hers.

Lawyer Vincent Larochelle, who represented Wright in the case, said in an interview Thursday afternoon that his client felt vindicated by the ruling.

"For her, that really felt like she was restored in her dignity and her humanity," he said.

Yukon Morning10:28We speak with the lawyer involved in a challenge of the Yukon's Safe Communities and Neighbourhoods

Yukon Supreme Court has struck down part of the Safer Communities and Neighbourhoods Act. SCAN, as it's known, allowed the Yukon government to serve eviction notices to tenants with only five days notice. The government passed the act to address community safety concerns and resolve complaints of alleged illicit activities.It gave the territorial government the power to act without police or the legal system. Whitehorse resident Celia Wright filed a constitutional challenge in December 2020.Lawyer Vincent Larochelle represented Wright in Yukon Supreme Court and spoke with Elyn Jones.

No one from the Yukon government's justice department, which enforces the SCAN Act, was immediately available for comment.

The rest of the act, introduced in 2006 with the goal of addressing community safety concerns without requiring the involvement of police and the criminal justice system, remains in effect. People can continue to report illicit activity they believe is taking place at a property, including organized crime, drug or firearms trafficking and child sexual exploitation, to a government-run SCAN unit, whichcaninvestigate and attempt to "disrupt" the activityby issuing warnings, working with the landlord or going to court to obtain a community safety order.

State's role in evictions clear, judge rules

Prior to Duncan's decision, the SCAN unit could also authorize evictions with five days' notice far quicker than permitted under the Residential Landlord and Tenant Act (RLTA).

While the Yukon government had argued that SCAN-related evictions had to be approved by the landlord and therefore were not a government process, Duncan wrote that state involvement in the evictions was clear. Notices, she said, were issued on government-branded paper and delivered by SCAN investigators, government employees who wear branded uniforms. The investigations preceding the evictions were also undertaken by the SCAN unit, and tenants had to ask the justice department's director of public safety for extensions on their evictions.

Touching on the specifics of Wright's case, Duncan noted that the eviction notice required 11 people to pack up and leave their homes in under a week in December, with further complicating factors including that it was the early days of the COVID-19 pandemic and an ongoing housing crisis.

The SCAN eviction deadline was pushed back before the landlord eventually rescinded the notice, giving Wright two months to leave under the RLTA instead. Still, Duncan wrote that the initial notice had a significant impact on Wright's psychological well-being.

"It was serious and the result of state action," Duncan wrote, adding that Wright unsuccessfully tried to findnew, adequate housing, initially moving with her children into a trailer with no power or water while her mother-in-law, an elder with mental health issues, lived in a tent at the Robert Service Campground.

"The state through s. 3(2) has interfered with the petitioner's intimate and personal life choice to ensure a safe home for herself and her family... This is an interference with her psychological integrity, beyond the level of ordinary stress and anxiety."

Duncan acknowledged affidavits filed by four local community organizations as well as evidence provided by experts on the toll that evictions, housing insecurity and homelessness can have on mental and physical health, particularly forpeople from marginalized communities.

Eviction process unfair, overly broad

While laws that violate Charter rights can sometimes be "saved" if the violation is minimal and reasonable, Duncan ruled that was not the case when it came to section 3(2). Among other things, she ruled that the process was unfair because it provided little to no opportunity for a tenant to fight the eviction or even see the evidence the SCAN unit had collected against them. The only option to fight an eviction, she noted, was to make a court application, a complicated process difficult to achieve in less than five days.

Duncan also found the section was overly broad, as evictions applied to entire properties, meaning people not accused of illicit activities but who happen to live in a home targeted by SCAN roommates, for example, or in Wright's case, her children and mother-in-law are negatively affected.

As well, a five-day eviction to achieve the goal of community safety is "grossly disproportionate" when alternatives exist, Duncan wrote, including within the SCAN Act itself. Landlords, should they have safety concerns, can also evict tenants under the RLTA, which requires 14 days' notice and provides tenants the opportunity to correct their behaviour first or dispute the notice without needing to go to court.

Wright's constitutional challenge was not completely successful. While her lawyer had argued that the SCAN section also violated equality rights because it disproportionately targeted Indigenous people Wright is a Ta'an Kwch'n Council citizen and her mother-in-law is a Little Salmon/Carmacks First Nation elder Duncan ruled that there wasn't enough evidence to reach that conclusion.

Duncan noted that 10 self-governingYukon First Nations have signed SCAN agreements with the Yukon, whichwas "evidence they see it as a benefit to their own communities, who are First Nation, and not discriminatory."