How a Yukon court ruling could affect NWT’s Scan act plans

Advocates say a Yukon Supreme Court ruling on the territory’s safer communities act should influence the NWT’s plans to develop similar legislation.

In a decision released earlier this month, Yukon Supreme Court Chief Justice Suzanne Duncan struck down a section of Yukon’s Safer Communities and Neighbourhoods Act, or Scan, as unconstitutional, as first reported by CBC.

The section allowed as little as five days notice for landlord-assisted evictions of tenants suspected of illegal activity.

Duncan found that could cause “extraordinary psychological suffering and a risk to a person’s health,” as well as lead to housing instability or homelessness.

The judge also ruled that the section was “procedurally unfair, overbroad and grossly disproportionate to its objective.” She said it could affect people not involved in illegal activity at a residence, such as children or roommates, and did not allow tenants to know the case against them or give them a fair chance to fight their eviction.

What is Scan?

Scan legislation aims to improve community safety by allowing neighbours to make complaints to provincial and territorial authorities that can then target and shut down properties where illegal activities, such as drug trafficking, habitually occur. It is separate from criminal law and police enforcement, which requires a higher standard of proof.

Several jurisdictions across Canada have enacted such legislation including Alberta, Manitoba, Saskatchewan, Nova Scotia and New Brunswick.

NWT Premier RJ Simpson, who is also the territory’s justice minister, has expressed plans to develop a Scan act as one way to “shut down known drug houses” in response to an increase in drug poisonings and drug-related crime in the territory.

“This is an issue that has come up time and time again for years. And as we’re seeing more drugs in communities and more housing units being used as the base for selling those drugs, there’s action that needs to be taken,” he told the assembly in May.

Some MLAs and other leaders across the territory, along with residents, have also called for more tools and action to address drug-related crime in their communities.

“We need Scan legislation so civil courts can pursue owners and occupants of homes who are facilitating criminal activity. We can’t let anyone turn a blind eye,” Range Lake MLA Kieron Testart said in the assembly in June.

Impact of Yukon case

The Canadian Civil Liberties Association, which acted as an intervenor in the Yukon case, said other jurisdictions should consider the ruling when reviewing or developing their own Scan legislation.

Harini Sivalingam, director of the association’s equality program, said short notice evictions put marginalized and vulnerable people at risk of homelessness.

“These types of evictions can negatively affect the physical and mental health of those that are impacted,” she said.

In Yukon, she noted, Indigenous people are disproportionately affected by homelessness.

According to Whitehorse’s point-in-time homeless count, roughly 197 people were experiencing homelessness in April 2023, 90 percent of whom were Indigenous. Comparatively, 16.3 percent of the city’s total population was Indigenous in 2021, according to Statistics Canada.

Sivalingam said there are other eviction processes that are less extreme and infringing on rights.

For example, she said under Yukon’s Scan act, the territory can apply for a community safety order, which involves “a more rigorous” court process that allows people to respond before they are required to vacate a property. She said many jurisdictions also have landlord and tenant legislation that provides a more fair eviction process.

‘Scan was not creating safety,’ NGO says

Jill Aalhaus is executive director of Blood Ties Four Directions, a harm reduction non-profit in Whitehorse. She said she’s seen first hand how short notice Scan evictions can “lead someone’s life to spiral and really affect all aspects of their life.”

“I think that we all want to live in safe and inclusive communities but Scan was not creating safety, it was creating harm,” she said.

Aalhaus said Scan further marginalizes and displaces people who use substances, people living in poverty, Indigenous communities and other marginalized groups. She said short notice evictions can exacerbate problematic substance use, decrease people’s access to resources and services, and cause families to be continually displaced.

“A neighbour reporting eviction process doesn’t create safety. Displacing people from homes causes further harm and can often lead to a cycle of violence that is perpetuated,” she said.

“I think it can look on paper like a tool for creating safety, but in practice, it has created further harm.”

Aalhouse said that is particularly concerning in an overdose crisis and housing crisis. She called for a more fair and transparent process to address tenant issues and said providing safe and affordable housing as well as access to health care supports and food increases safety and quality of life.

Scan in NWT

The NWT Legislative Assembly previously attempted to introduce Scan legislation in 2007. MLAs at the time, however, voted down the proposal following concerns from some residents that the legislation could be misused.

The NWT Human Rights Commission also cautioned about the need to prevent discrimination.

“You’ve got to make sure that if you’re receiving complaints that you’re going to use for a Scan action that you’re checking to make sure that they’re not being given to you … for a discriminatory reason,” Charles Dent, chair of the commission, recently told Cabin Radio.

He gave the example of someone making a false complaint based on a bias that people of a different race are more likely to be drug dealers.

“These types of legislation are challenging because they’re often undertaken without having good evidence and that’s problematic,” Dent said. “That’s, I think, the issue that’s going to come up before the courts all the time.”

He added that the legislation needs to balance the competing rights of neighbours who may be concerned about public safety and people’s right to their home.

Dent agreed that the Yukon ruling could impact Scan elsewhere in Canada.

“I would expect that jurisdictions across Canada are paying attention to what’s happened in the Yukon because it sets a precedent,” he said, adding they will have to ensure their legislation is in compliance.

NWT Scan review in early stages

In response to Cabin Radio’s request for an interview, Premier RJ Simpson issued a written statement indicating the Department of Justice is in the early stages of exploring what Scan legislation could look like in the NWT.

He said that includes reviewing how such legislation has been implemented elsewhere in Canada.

“While Scan legislation shows potential, it is critical that we conduct a thorough analysis to fully understand its implications, including any challenges related to the Canadian Charter of Rights and Freedoms and those brought up by residents in the 15th assembly, when the bill was first being considered,” Simpson wrote.

“Before moving forward with any legislative proposal, the department will ensure that the unique needs and challenges of our communities are carefully considered, while safeguarding the rights and freedoms of all residents.”