Yukon judge hears constitutional challenge of evictions under territory's SCAN Act

The future of a controversial Yukon law that allows short-notice evictions at properties alleged to be harbouring illegal or disruptive activities is now in the hands of a judge.

Yukon Supreme Court Chief Justice Suzanne Duncan spent much of last week hearing a legal challenge of a section of the Safer Communities and Neighbourhoods (SCAN) Act that permits evictions on five days' notice.

Lawyer Vincent Larochelle, who's representing the woman behind the challenge, said the section is unconstitutional, a stance rebuked by Yukon government lawyers Kelly McGill and Amy Porteous.

Whitehorse woman and Ta'an Kwäch'än Council citizen Celia Wright, who was living at a rental property in Cowley Creek with her family — including her eight children and mother-in-law, an elder with mental health issues — took the issue to court after getting a five-day SCAN eviction notice in December 2020.

The SCAN Act allows members of the government's SCAN unit to investigate complaints about activities at a property that are "adversely affecting" a neighbourhood or community. Complaints may be informally "resolved" by the landlord evicting everyone from the property. 

Former SCAN investigator Kurt Bringsli testified Nov. 8 that his unit received drug trafficking complaints about Wright's property for four years leading up to the eviction notice. Yukon RCMP also raided it as part of a drug bust a month prior, laying a number of charges against Wright and her now-husband. The criminal case is still before the courts.

In emotional testimony Nov. 7, Wright said her landlord didn't have an issue with the police investigation as long as her family paid rent. She said she spoke to him after receiving the notice and he told her he was "bullied" and threatened with his house being "seized" if he didn't agree to the eviction.

Wright said the situation was "very difficult on my kids, myself, my whole family." 

"I believe I actually miscarried because of [the stress]," she said. 

The SCAN unit gave Wright an extension to the end of January 2021. Her landlord rescinded the SCAN eviction that month and gave her more time to leave. 

Wright said it was difficult to find somewhere to go.

"The lineup for housing here is so insane, it's scary… I'm Indigenous to this land, and I was homeless — I didn't even have a parcel of land to pitch a tent on," she said.

Wright's mother-in-law ended up in a tent at the Robert Service Campground, while Wright moved into a trailer in a friend's yard. While she's now in a house, Wright said she's still looking for a new home that's large enough for her family.

Bringsli said he didn't know how many people lived at the property when he gave Wright the eviction notice or if any of them were Indigenous. He wouldn't elaborate on the complaints SCAN received about the property, only saying drug trafficking has an inherently adverse effect. He also denied SCAN pressured Wright's landlord into evicting her.

He added that SCAN has always granted extensions on evictions if requested and has only given evictions with 14 days' notices since December 2020. 

Besides Bringsli and Wright, the court also heard from sociology and homelessness experts. A number of local organizations including Safe at Home and Blood Ties Four Directions also filed affidavits. 

SCAN 'short-circuiting' tenant rights

Wright's lawyer argued in submissions Nov. 10 that the government was trying to make SCAN evictions seem like a landlord-tenant dispute with no "state involvement" despite being "elbow-deep" in the issue.

"[It] reminds one of the proverbial ostrich that buries itself in sand and pretends no one can see it," Larochelle said. 

However, the legal challenge wasn't just about Wright's "unfortunate case," he continued.

SCAN evictions, he argued, are a "short-circuiting" of the Residential Landlord and Tenant Act (RLTA), under which landlords must give tenants a chance to remedy problems before evicting them. Landlords must also serve eviction notices via a form that includes a list of tenant rights and how to appeal the eviction. 

No such process or notification of rights exists under SCAN, Larochelle said, with the only real remedy to take the matter to court — something that's often not realistic, given the tight timelines of evictions and people's limited resources.

The evictions, Larochelle also argued, violate two sections of the Canadian Charter of Rights and Freedoms — the right to life, liberty and security of the person, and equality rights. 

SCAN evictions deprive people of the ability to choose where to live, he said, and lead to homelessness, which overall increases the risk of death and can worsen issues like substance use disorder. They can also result in someone's bail being revoked if they're required to live at a certain address. 

Citing the affidavits from local organizations, Larochelle said that the vast majority of housing-insecure or homeless people in Whitehorse are Indigenous. He argued SCAN evictions perpetuate historical injustices, racism and discrimination. 

A lawyer for the Canadian Civil Liberties Association, which is intervening in the case, also attacked the section's constitutionality.  

Fraser Harland argued the SCAN unit "deputizes" landlords to meet community safety objectives. He also said the eviction section is "over-broad," because it applies to people living at a property who aren't necessarily involved in any harmful activities.

Harland also expressed concerned about the list of activities, called "specified uses" in the act, that the SCAN unit accepts complaints about — in particular, "prostitution," which is legal in Canada.
 
He described the SCAN unit as a "self-declared law-enforcement agency" and said it disproportionately targets low-income and marginalized communities. 

Wright claiming right to 'not be made homeless,' government argues

McGill, one of the government lawyers, said in her submissions that Wright was claiming a constitutional right to "remain where she lives" and to "not be made homeless" — a position McGill warned could have a "profound impact" on other laws, including the Residential Landlord and Tenant Act. 

She argued the eviction section doesn't violate any Charter rights, and that SCAN evictions do not "equal homelessness."

Porteous, the other government lawyer, argued there was no evidence SCAN contributes to Indigenous people being homeless in the Yukon, and that it "wasn't fair" to say SCAN discriminates against Indigenous people when several Yukon First Nation governments work in collaboration with the unit.

Echoing Bringsli, McGill emphasized that evictions cannot happen without the consent of a property's landlord. She also pointed to the "small" number of SCAN evictions — 25 in the past five years — and described SCAN evictions as a "tool" for landlords to put an end to unwanted behaviour at their properties without needing to investigate or confront the tenants themselves. 

As well, the SCAN Act has a "safety valve" built into, McGill claimed, because it contains a section stating that any resident of a property subject to an eviction may dispute it in court.

Asked how people would know about the dispute process since it's not mentioned in eviction notices, McGill said that people simply go read the SCAN Act. 

Larochelle, in his reply, took aim at that suggestion.

"Go tell that to the schizophrenic Indigenous elder who had to go live in a tent," he said, referring to Wright's mother-in-law. 

Duncan reserved her decision.

The Yukon government, separately, is also undertaking a review of the SCAN Act.