When he moved into a 1960s-era northside bungalow in Lethbridge six years ago, Clint Russnaik liked his new neighbourhood. It was a “great place,” he says, somewhere where “nothing bad happened.” Indeed, the wartime houses and large elms on his street recall a time when people talked about the upcoming summer fair, not drug dealers. Although the neighbourhood is wearing a little, it is still a fine place to retire or raise children: nearby is a seniors centre, several schools and a chapter of the Boys and Girls Club of Canada.
At a corner property across from Russnaik, however, is a neglected-looking blue and white house. The windows and doors are boarded, and a temporary steel fence prevents entry. Facing the street is an official-looking sign with a terse warning: UNLAWFUL TO ENTER PROPERTY.
The property was shut down last fall by sheriffs acting under the authority of Alberta’s Safer Communities and Neighbourhoods Act (SCAN). In the previous months, Lethbridge police had made 12 visits to the house, but the problems persisted. Upon receiving complaints from nearby residents, SCAN investigators set up surveillance. In one four-day period last summer they observed 42 different individuals visiting the property, making at least 15 illegal drug transactions. Working with Lethbridge police, investigators learned that heroin, methamphetamine and carfentanil were among the drugs being used and sold there. Russnaik estimates as many as 20 people were flopping at the house. “The people always changed,” he says. When things were at their worst, two males violently assaulted a lone female in the street.
For Russnaik and his neighbours, something needed to be done, and soon.
SCAN relies on civil law, where the burden of proof is the balance of probabilities. The more rigorous requirement in criminal cases is to prove guilt beyond a reasonable doubt.
Enacted in 2007, SCAN gives sheriffs the power, with a court-ordered community safety order (CSO), to shut down properties for up to 90 days when drug trafficking, prostitution, child exploitation or gang activity are ongoing problems. After the fence comes down, sheriffs have input on who can live at the property for a one-year period from the date the CSO was issued. A lesser-used provision, targeted at organized crime, allows sheriffs to shut down fortified buildings and remove armoured doors, bulletproof wall plating and other modifications. In either case, costs incurred to shut down a property—fence rentals, needle cleanup, winterization—can be charged back to the owner. This is tough legislation. For criminals, the message is clear: Move along, you are not wanted here.
Modelled on similar legislation first enacted in Manitoba in 2002, SCAN gives sheriffs powers that are beyond police. This is because the legislation targets property rather than people. Whereas police respond to crime by filing Criminal Code charges against individuals, SCAN investigators shut down properties with a caveat registered against the land, so that accused lose their base of operations. This is thought to close the revolving door, where released individuals simply return home and continue dealing drugs while awaiting their trial date.
With this focus on property rather than people, SCAN investigators rely on civil legal proceedings, where the burden of proof is the balance of probabilities rather than the more rigorous requirement, in criminal cases, to prove guilt beyond a reasonable doubt. This civil approach—using the Court of Queen’s Bench—means sheriffs can act quickly, end-running many of the important but time-consuming safeguards built into the judicial system. Some of the normal checks on state power are absent. Not only is the identity of the complainants kept confidential, but surveillance occurs without warrants and the names of evictees are publicly posted at closed properties, even when they have not been charged with a crime. All of this happens with little delay because judges must hear CSO applications on an urgent basis.
Any legislation that makes it easier to rid neighbourhoods of problem residents will be popular with police and law-abiding homeowners and tenants. Still, the program is not beyond criticism. Some people may wonder, reasonably, if CSOs only move crime from one neighbourhood to another. The complaint process, which is guaranteed to always remain confidential, might encourage frivo-lous complaints and unnecessary surveillance (maybe your neighbours think you have too many backyard parties in the summer). By publicly naming the evictees on the posted CSO, sheriffs might further marginalize already marginalized people, such as sex workers. The civil aspect of the program is potentially troubling too because it gives the province a back door to legislate on matters that are, at base, criminal. With our constitutional division of powers, criminal law is an exclusive federal responsibility; provincial authority is limited primarily to the day-to-day enforcement and administration of such federal laws.
For Russnaik and his neighbours, however, the above concerns are academic when they recall the daily and nightly issues they faced on the ground. For them, the surveillance, fence and boarded windows remind them their provincial government stepped in—not with mere words, but with force—to help them take back their neighbourhood. Their right to enjoy their property, in peace and without fear, was restored.
As for the rights of evictees, however, questions remain. Could the same results be achieved using only police and the Criminal Code? Does the provincial government really need to reach for such a heavy hammer? What was motivating our MLAs when they brought forward this legislation?
With the weight of both the neighbourhood and the state against them, most evictees simply move along.
Following Manitoba’s lead, Saskatchewan enacted SCAN legislation in 2004, as did the Yukon Territory in 2006 (where lawmakers added bootlegging to their list of prohibited activities). Since then, five more provinces, including Alberta, have adopted these measures. The programs are similar, but some provinces have unique provisions. Investigators in Nova Scotia can shut down properties being used for gambling. In British Columbia, where the legislation was enacted more recently, measures must be taken to ensure vulnerable evictees are not rendered homeless. As an early adopter, Alberta largely copied the text of the Manitoba legislation.
In Alberta the idea to bring in SCAN legislation came from recommendations made in 2007 by the Crime Reduction and Safe Communities Task Force. Chaired by Heather Forsyth, a long-time MLA and Klein-era solicitor general, the task force had a threefold mandate: “to make recommendations on effective ways to reduce crime, make Alberta’s communities safer, and improve public confidence in the criminal justice system.” Other task force members were Edmonton’s chief of police, two municipal politicians (including Ric McIver, a Calgary alderman at the time) and several legal experts and community leaders.
Although many of the 31 recom-mendations focused on crime preven-tion—addictions treatment, early education, expanded mental health services—the motivation was also to make the consequences of crime more severe. The SCAN legislation was one such recommendation, but the task force also called for more police, closer monitoring of repeat offenders and a civil forfeiture program that would use the proceeds of crime to compensate victims and fund crime prevention. The task force members were serious about dealing with the public’s lack of confidence in the criminal justice system.
At the time, though, crime was not a growing problem in Alberta. In their report, the task force members acknowledged that serious crime rates had been declining since the early 1990s. Their own survey found that 93 per cent of Albertans felt safe in their homes after dark. But Albertans did not—and usually do not—talk about crime in these aggregated, statistical terms. The preoccupation here is that criminals have it too easy. Recalling their community consultations, the task force members wrote that they “repeatedly heard concerns about the lack of meaningful consequences for crimes and about sentences that appear to be nothing more than a ‘slap on the wrist.’ ”
With those punitive overtones, the proposed bill was brought to the legislature. Support came from across party lines. Art Johnston, a retired police officer, and the Progressive Conservative who introduced the bill, called it “a proactive approach at stopping and preventing disturbing and dangerous activities in our neighbourhoods.” Mo Elsalhy, with the Alberta Liberal Party, hoped the legislation would empower citizens. “It’s the same philosophy as Neighbourhood Watch,” he said, “but now with a mechanism at the end where there is a result.” Ray Martin of the Alberta New Democratic Party gave the full support of his caucus. No MLA spoke expressly to oppose the bill.
Now, more than 10 years after it was established, the SCAN program employs roughly 40 sheriffs and has an annual budget of $3-million. In 2009, sheriffs conducted 351 investigations, resulting in 19 warning letters and six CSOs; in 2018 there were 836 investigations, 83 warning letters and six CSOs. Over the lifespan of the program, 4,700 problem properties have been investigated and 72 CSOs have been issued. These numbers reveal Albertans are quite willing to confidentially register complaints against their neighbours. In turn, this means sheriffs are conducting a considerable amount of surveillance without public knowledge and without a judge’s oversight.
Linda McKay-Panos believes that Albertans should be concerned the province is using civil legislation this way to tackle criminal matters. She is the executive director of the Alberta Civil Liberties Research Centre at the University of Calgary, where she is also a sessional law instructor. “Although they say it is only property they are focused on,” she says, “what they do does affect people.”
She explains that tenants are particularly vulnerable because SCAN overrides the Residential Tenancies Act, where the notice period for eviction from a month-to-month tenancy is normally one month or, in exceptional cases, 14 days. When a CSO is issued, however, the eviction date is whatever the court decides. This can make tenants homeless almost immediately.
To be fair, investigators rarely apply to the courts for a CSO. Most landlords, when they receive a warning letter, take their own steps to avoid a CSO. Usually this means eviction. Only now, when landlords pursue an eviction, as they normally would under the Residential Tenancies Act, the surveillance collected by the SCAN investigators can be used as evidence. This also presents a problem for tenants, says McKay-Panos, because they do not know who made the complaints. “There is not a lot of opportunity for the person to meet the case being made against them,” she says. With the weight of both the neighbourhood and the state against them, most evictees simply move along.
This high level of community involvement, where citizens are always watching, was exactly what MLAs were looking for as they debated the legislation. “[SCAN] is commendable,” said PC Len Mitzel, “because it proposes an entirely community-based answer to crime. Citizens in our community are suitably placed to know when illegal activity is taking place. They know when something is out of the ordinary, and they have a personal stake in ensuring that crime does not happen in their neighbourhoods.” MLA Elsalhy delivered a more direct message to criminals: “You know what? You are not going to go unnoticed. And you know what? Everybody’s watching. I’m watching you. My neighbours are watching you. The person down the street is watching you.”
McKay-Panos takes issue with the more ominous aspects of SCAN. “It is kind of like citizens are acting as a watchdog on behalf of the state,” she says. Andrew Woolford, a criminology professor at the University of Manitoba, has similar concerns. Writing from a critical perspective, he wonders if the legislation leads to the “deputization” of citizens, enlisting us as partners to work on behalf of the criminal justice system. This Orwellian take on the legislation may not be an exaggeration. Complainants do little more than call a toll-free number or go online where they fill in nine lines of text. They only need to believe there is illegal activity, that it is ongoing and that it adversely affects their neighbourhood. SCAN investigators will then move in with their surveillance, while regularly providing updates to the complainant (who can never be called upon to testify in court).
To their credit, SCAN investigators in Alberta have not developed a reputation for abusing their power or acting arbitrarily. In other provinces, however, some curious scenarios have resulted from use of the legislation. In Nova Scotia, for example, a family of five was evicted from their home, without any of them being criminally charged, when the parents failed to control their drug-addicted adult sons. In Saskatchewan, a young man who regularly smoked marijuana was evicted from his rental home when a neighbour reported he was selling drugs. He was eventually charged with simple possession, and the trafficking charges—the basis of the original complaint—never stuck in court. Critics point to these examples, and others, to make their case that SCAN legislation is too heavy-handed.
The legislation has not yet been tested in Alberta higher courts. In one case in Saskatchewan, however, an evicted tenant challenged the constitutionality of SCAN, saying the law is criminal in nature and therefore beyond the powers of the province to enact. The judge in that case admitted that criminal activities were indeed referenced in the civil court proceedings but concluded that the SCAN legislation still only affects the property and, in and of itself, does not put evictees at risk of being charged with a criminal offence.
Not surprisingly, police in Alberta are strong proponents of SCAN. They work closely with SCAN investigators, in fact, openly sharing information and resources. Police are often as frustrated as nearby residents when it comes to their capacity to respond effectively to the ongoing problems associated with drug houses. Indeed, when the legislation was being debated, several MLAs recalled stories they had heard, directly from police, where they were told the criminal justice system alone is often not enough to rid a neighbourhood of serious crime.
Mark Smallbones, a sergeant with the Lethbridge Police Service’s Priority Crimes Unit, knows first-hand the limitations inherent in the criminal justice system. Along with his constables, he was directly involved in bringing criminal charges against the people coming and going from the blue and white house. They also identified two other problem properties in the same neighbourhood, eventually determining that all three were connected. Using the criminal code, Smallbones secured search warrants and pressed charges. The landlords at the latter two properties co-operated, bringing an end to the ongoing issues. As might be expected, though, the drug activity was then pushed toward the remaining house. Smallbones knew the sheriffs were finally needed. “I like SCAN,” he says, “because they come in with the civil aspect and they have powers I do not have as a police officer.”
To shut down the house, Smallbones worked closely with Mike Letourneau, a SCAN investigator who has been with the program since its inception. As Letourneau explains, the circumstances at the third property were complicated. Of the three owners, only one was living at the property. Because of his ongoing drug use, the other two owners—his mother and his former spouse—distanced themselves from the property. When he ignored the warning letter from SCAN, the investigators proceeded with a CSO. When it was served, Letourneau says, the drug-addicted owner was apprehended and everyone flopping at the house left without incident. The bank that issued the mortgage then proceeded with a foreclosure. As has become the custom, Letourneau held a media scrum as the property was being boarded up. He thanked the community for stepping up and sharing their concerns with SCAN. “Four very fearful and very frustrated complainants contacted the SCAN unit,” he told reporters, before detailing the investigation. “There was enough evidence in this property to go forward and take an application for a community safety order in Queen’s Bench court and on September 25 we did just that, and we were successful.”
Justice Minister Kathleen Ganley praised Letourneau’s work. “This is yet another example of the important role SCAN investigators play in keeping Alberta neighbourhoods safe and secure,” she said. “I want to thank SCAN investigators for their diligent efforts to address criminal activity across our province.”
Should Alberta’s SCAN legislation be left alone, or does it need to be amended?
If the burden of proof is only the balance of probabilities, as in civil court, the legislation can probably continue to serve our communities well enough without changes. But when put against the criminal standard, where charges must be proven beyond a reasonable doubt, some aspects of the legislation are drawn into question. It’s not clear, for example, what communities gain when sheriffs publicly name evictees, especially those who haven’t been charged with a crime (which is why none are named in this article). Also, if SCAN did not override the Residential Tenancies Act, evictees would then have at least 14 days to figure out where they’re going to live next. Moreover, until the legislation is finally challenged in our higher courts, the matter of whether the province is acting beyond its constitutional powers will remain unanswered. At least one lawyer in Edmonton, however, is standing by, ready to meet the challenge. A court challenge, he writes, might determine that SCAN is a “serious infringement of people’s liberty and a draconian approach to penalization rather than keeping communities safer.”
Back on Russnaik’s street, several of his neighbours are unwilling to speak publicly because they still fear the people they watched coming and going from the blue and white corner house. They are just relieved the ordeal is over. They are not much interested in talking about how the legislation might undermine civil liberties or the safeguards built into the criminal justice system. For them the differences between civil and criminal law are largely abstractions.
When asked if he has any concerns with the process, Russnaik only brings the conversation back to the results. “It was a really good day when that house was shut down,” he says, standing in his kitchen. “The whole block was pretty much celebrating.”
Jeff Doherty lives in Lethbridge. In 2016 AV published his story on secondary suites.
