Whitehorse woman wins challenge of Yukon safer communities law

The Yukon Supreme Court has told the Yukon government it will need more than suspicions and hearsay the next time it wants to evict a suspected drug dealer from their home, as a recent court challenge has found.

The case by Karen Nicloux of Whitehorse is the first time someone has challenged the Yukon's Safer Communities and Neighbourhoods (SCAN) Act, enacted in late 2006.

A spokesman for the Yukon's Justice Department told CBC News Monday the government has no comment on the decision.

'You can't make somebody homeless based merely on a suspicion.' — Colleen Harrington, lawyer for Karen Nicloux

Nicloux was evicted by the Whitehorse Housing Authority earlier this year, after an anonymous tipster had called the SCAN office alleging "illegal drug activities" at her rental unit.

In a written decision dated Thursday, Justice E.D. Johnson stated the case against Nicloux was "weak" compared to similar cases in other jurisdictions.

"I am unable to draw the necessary inference on a balance of probabilities that drug dealing took place at or near the unit," Johnson wrote in his decision.

Under the SCAN Act, members of the public can file complaints about a residential property that they believe has criminal activity, such as drug dealing, prostitution and bootlegging.

Tenants can be evicted under act

If SCAN investigators find evidence of illegal activity at the property, the tenants responsible can be evicted or even removed from their homes by court order.

In Nicloux's case, a "confidential informant" called the SCAN office on Feb. 26, alleging that Nicloux was dealing crack cocaine in her unit.

According to the court decision, the female tipster said Nicloux "is up all night and sleeps all day" and has visitors mostly on weekends. The woman also told investigators she saw a known drug dealer at Nicloux's unit three times in the past week.

Following that complaint, investigators parked a surveillance van outside Nicloux's unit and watched it for a couple days, but did not collect enough evidence to warn or evict her.

Investigators also met with Nicloux to say they were watching her. They told her some of her visitors were known drug users and she should keep them away.

The same informant called the SCAN office again on March 30 and April 1, alleging Nicloux was dealing crack cocaine and marijuana.

RCMP arrested Nicloux on April 7 in another part of the city, and charged her with possessing cocaine. SCAN investigators later went to Nicloux's home and served her the eviction order.

Targeted based on associations with others: lawyer

"You can't make somebody homeless based merely on a suspicion," Colleen Harrington, Nicloux's lawyer, told CBC News on Friday.

Harrington said her client was evicted from her home largely because she was associating with people who had also been evicted from their homes under the SCAN legislation.

"It seems clear from this case that my client was being targeted based on who she was associating with. There's also allegations that they had systematically followed and evicted these two particular people that she was said to be associating with," Harrington said.

"In the Yukon, the human rights legislation does prohibit discrimination based on one's criminal record. So I would argue that certainly they should be a lot more careful about complying with the charter and with ... human rights legislation in the Yukon."

Harrington said she believes the ruling is an important victory for civil liberties in the Yukon, adding that evidence in eviction cases should at least go before a judge before anyone is kicked out of their homes.

However, the court victory won't help Nicloux with her other legal problems, as she is currently in custody awaiting trial on the drug charges.