Yukon’s Supreme Court has sided with a First Nation’s woman’s Charter challenge of the territory’s SCAN Act which allowed for evictions with as little as five days notice.
In a potentially precedent setting move, Chief Justice Suzanne Duncan struck down s. 3(2) of the act for failure to comply with s.7 of the Charter of Rights and Freedoms which guarantees a person’s right to life, liberty and security.
Celia Wright, a Ta’an Kwäch’än Council citizen, and her family of ten were served an eviction notice at the Whitehorse home they were renting with only five days’ notice in December 2020.
At the time, Yukon’s Safer Communities and Neighbourhoods Act – or SCAN – allowed for short-notice evictions based on complaints of illegal activity at rented homes, regardless of tenancy agreements.
“I feel happy. I feel confident. I feel like I’ve done something really powerful,” Wright told APTN News. “Everybody deserves a home, honestly and truly, and nobody deserves to be kicked out of their home.”
The territory’s SCAN unit operates under the Department of Justice with the goal of “shutting down” property where criminal activity like drug trafficking, organized crime and bootlegging is taking place.
A month prior to the eviction notice being served, Wright and her now husband were charged with drug, weapon and stolen property-related offences after their rental property in Whitehorse was raided by the RCMP.
Most of those charges have since been dismissed. Wright still faces a handful of other charges, which have not yet been proven in court.
The SCAN unit pursued an eviction against Wright and her family due to an investigation stemming back to 2016 that drug activity was occurring at the property, anonymous complaints of safety concerns and drug trafficking as well as the charges laid against Wright and her partner, among other things.
Wright was able to obtain a court-ordered extension until the end of January 2021. That same month, SCAN rescinded its notice after the family’s landlord gave an eviction notice of his own until the end of March 2021.
Despite SCAN rescinding its notice, Wright proceeded with a legal challenge of the SCAN law.
Wright said the eviction caused her family to experience housing instability. At one point, she and her family lived in a RV on a friend’s lawn with no running water while looking for more suitable accommodations.
“Nobody should have to be homeless, especially kids. No child should have to face that kind of disruption,” she said.
The case was heard in court last November.
Wright provided evidence from four local non-profit organizations, experts and academics who shared their observations about SCAN and how it negatively impacts vulnerable people, especially those that are Indigenous.
Judge rules eviction provision of SCAN act unconstitutional
Duncan said in her written decision that a “state-initiated eviction under s. 3(2) of the SCAN Act can detrimentally affect a tenant’s psychological integrity, and can lead to housing instability or homelessness, which in turn can increase the risks to health.”
She said there was an absence of procedural fairness in the case as the section of the act doesn’t allow the person affected to know the case against them or provide them with an opportunity to present their case fully and fairly.
“No information was provided about any legal recourse available to (Wright) other than the verbal offer of the ability to request via the SCAN email an extension of the five-day notice period, within the five days, the granting of which was discretionary,” Duncan said.
“There was no offer to the petitioner of any opportunity for her to correct or change the behaviour that was the subject of the complaints. No offer of assistance to find alternative accommodation was provided.”
Duncan also found the act to be overbroad as it affected Wright’s children and mother in law who weren’t being investigated under SCAN, among other things.
She further noted the act is not saved s. 1 of the charter that that all of its rights and freedoms are subject to reasonable limits.
“While the objective of s. 3(2) is legitimate, the means of achieving it through a five-day eviction, without procedural fairness, that negatively affects those who have nothing to do with the basis for the eviction, and in light of other less impairing alternatives already available in existing legislation, does not meet the s. 1 test,” she said.
“The negative impacts on the individuals’ rights are not outweighed by the beneficial effects of eliminating the threats to safety, security or peaceful enjoyment of property.”
However, Duncan did not agree with Wright’s argument that s. 3(2) of the act violated s. 15 of the charter that guarantees equality rights, especially concerning Indigenous people who are disproportionately impacted by the act.
She noted how there have only been 25 SCAN evictions in the territory since 2018, and that while the government couldn’t provide race-based statistics, there was “a small sample size on which to base conclusions that disadvantages experienced by Indigenous people are exacerbated.”
Her decision also noted that 10 self-governing First Nations in the territory have SCAN agreements with the government which she said “is evidence they see it as a benefit to their own communities.”
Precedent setting decision
Wright’s lawyer, Vincent Larochelle, said the decision will likely have implications for legal cases involving SCAN in other jurisdictions.
He said he’s been in contact with many people about the legislation, especially civil law societies and public law clinics who have concerns about SCAN’s constitutionality.
“This is a precedent setting decision for this type of legislation, but also in the s. 7 context. Hopefully it will help them deal with their laws. And who knows – strike them down,” he said.
Wright said she hopes the decision will help others in similar circumstances.
“I think that people losing their home is causing a lot of problems within our city, within our community, and within our families. It really changes people when you don’t have a home,” she said.
Yukon government did not provide APTN with comment by deadline.
Representatives previously said a preliminary review of the act is underway.
It’s expected to be completed by 2027.
