Leighann Chalykoff
Special from the Yukon News
Monday, February 5, 2007

WHITEHORSE - A residence in downtown Whitehorse was served an eviction notice Jan. 19.

It was the second served under Yukon's recently enacted Safer Communities and Neighbourhoods Act (SCAN). The territory's SCAN office has been open for just six weeks.

The Yukon government, in co-operation with the property's landlord, is ousting the tenants for their alleged connection to illegal drugs.

The Justice department is not releasing the names of the tenants being evicted, or the controlled substance allegedly being produced, used or sold in the residence.

Under the federal Controlled Drug and Substances Act, it could be anything from pot to amphetamines to cocaine.

"We're happy to see the legislation is working," Downtown Residents Association president John Pattimore said on Monday.

Frustrated with the disturbances caused by drug houses in the downtown area, the association has supported the safer communities legislation since its inception.

"We've been loud and clear in Whitehorse and even throughout the rest of the Yukon - we don't want drug dealers, prostitutes or bootleggers in our community. Period."

Although the legislation could be seen as "radical" or "controversial," it doesn't mean it's unconstitutional or "unduly harsh," he said.

"What about all the people who have been damaged by drug use in the community?" said Pattimore, who has seen many cars moving along some downtown streets and making quick stops at certain houses.

"They must have done something wrong or else they wouldn't have been investigated by the SCAN investigators and they wouldn't find themselves evicted.

"On the other hand, nobody deserves to freeze to death," he said of those evicted.

"They should get some help, but they shouldn't be taking precedence over someone who is just down on their luck.

"Who should take precedence on getting social service help - the criminal or the person on the street who struggling with a problem?

"So we should think along those lines before we complain about the brutality of this legislation."

SCAN is triggered when a neighbour makes a confidential complaint to Justice department investigators.

Then investigators stake out the property to see if the illegal activities are habitual and if they're adversely affecting the community.

It's civil legislation, so investigators only need to be convinced illegal activity is probably happening. It's different than what's needed to lay a criminal charge, which requires proof beyond a reasonable doubt.

Next, the department approaches the landowner to try and resolve the problem informally. If that fails, the government can apply for a community safety order to shut down the property, terminate the lease or turf out the offenders.

In this case, Justice department officials approached the landlord, who worked with them to serve the eviction notice.

Those evicted through this legislation may just move to another area, but the government will follow them and kick them out of that place also, said Pattimore.

"They're going to get hounded at place X, place Y, place Z, until they leave, or until they quit."

Legal and civil rights experts interviewed by the Yukon 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.

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.

"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.