Judge dismisses Yukon government's application to have legal challenge of SCAN legislation tossed

A legal challenge of the Yukon's Safer Communities and Neighbourhoods Act (SCAN) will be allowed to continue after a judge dismissed the territorial government's application to have the case thrown out. 

Yukon Supreme Court Chief Justice Suzanne Duncan issued her decision on Oct. 22. 

The Yukon government, in its application, had asked for a petition filed by Whitehorse resident Celia Wright to be thrown out, claiming she didn't have standing to pursue the case. 

SCAN allows for a Yukon government unit to investigate and deal with complaints about activity such as drug trafficking or illegal alcohol sales at specific addresses without needing to get the criminal justice system involved. While it's intended to address community safety and reduce burdens on police and the courts, some critics say it disproportionately impacts and further harms already-marginalized groups, such as people without secure housing or with addictions. 

Wright is challenging the constitutionality of a portion of SCAN that allows for evictions with five days' notice, arguing that it violates a section of the Canadian Charter of Rights and Freedoms protecting the right to life, liberty and security of the person.

The mother of eight was the subject of a SCAN eviction notice in December 2020 and filed her petition shortly after receiving the notice, which was later rescinded. 

Lawyer accuses government of inventing Pablo Escobar-type figures

In court, the Yukon government argued that Wright no longer had a personal stake in the matter that would allow her to continue pursuing her legal challenge as she was no longer being actively impacted by it, and accused her of being a 'busybody" litigant.

It also argued Wright wasn't representative of any marginalized groups allegedly disproportionately impacted by SCAN and disagreed that the legislation disproportionately impacted marginalized people at all, suggesting that SCAN targets people engaged in "sophisticated" and "lucrative" activities. 

Wright's lawyer, however, pointed out that, as an Indigenous woman, Wright was part of a marginalized group and had lived experience of the impact of being "SCANed," making her a suitable person to bring the case forward. 

He argued that the government was creating a near-impossible standard by suggesting only people actively being impacted by SCAN could challenge the legislation, and also accused the government of imagining SCAN targeting Pablo Escobar-type figures when, in fact, most people facing SCAN action don't have the resources to challenge the matter in court. 

Duncan ultimately found that Wright had public interest standing to continue pursuing the issue, and that the petition was "a reasonable and effective means of challenging the legislation," noting that no similar challenges had been launched in SCAN's 15-year history. 

"[Wright] raises a serious justiciable issue," Duncan wrote. 

"… If this application were not permitted to be brought, there is a risk that this law would be immunized from challenge, given the 15-year history with only one challenge, the short time period in which to initiate a challenge, and the vulnerability of the individuals who are affected."

Duncan also ruled in favour of an application from the Canadian Civil Liberties Association for intervenor status, meaning the human rights organization will be allowed to participate as a third-party expert in the case. 

The application had been opposed by the Yukon government, but, in her decision, Duncan wrote that the association's "national base and involvement with challenging a variety of legislation" under the Charter, among other things, would "assist me in deciding the issues raised by Ms. Wright."