NDP law presumes guilt, violates constitution, civil libertarians say

Community safety bill targets poor, mentally ill and pits landlords against tenants: lawyers

B.C.’s new Community Safety Act violates the basic democratic principle of the presumption of innocence and is unconstitutional, say federal and provincial civil liberties groups.

Minister of Solicitor General and Public Safety Mike Farnworth said Bill 13, the amended Community Safety Act, will help crack down on nuisance houses, including organized-crime drug shacks, where illegal activities take place.

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The law would allow people to make confidential complaints to a dedicated government unit, Farnworth said April 4 as he announced the 2013 law would be revamped and enforced.

Subjects of such complaints would have evidence of their past criminal convictions presented to courts as evidence of current wrongdoing.

“I think there’s significant constitutional risk with this law,” said Canadian Civil Liberties Association executive director Michael Bryant. “It violates the presumption of innocence. It violates the principle of due process.”

Both Bryant and B.C. Civil Liberties Association lawyer Meghan McDermott said the bill violates the Charter of Rights and Freedoms section on right to life, liberty and security of the person.

“It also has a bit of a flavour of vigilantism in that it allows people to report on neighbours just based on what they think is happening,” McDermott said. “This is going to be a boon to landlords who have tenants they want to evict.”

She questioned why the BC NDP would try to pass such a law when homelessness or affordability is already close to crisis in B.C.

“It’s extremely concerning. This just blindsided us,” she said of the bill.

Bryant said the law targets those in poverty, with mental health and addiction issues – groups the NDP has repeatedly promised to assist.

Moreover, Bryant said, the law would bring tenants and landlords into conflict while pushing those with housing issues from once place to another.

Bryant, a Harvard-trained lawyer and former Ontario attorney general, called Farnworth’s bill a “cheap trick” to look tough on law and order.

B.C. Attorney General David Eby, who formerly was executive director of the B.C. Civil Liberties Association, was not available for comment.

The bill provides for so-called certificates to be presented to courts. They would include previous criminal convictions of people at problem sites that are subject of anonymous reports.

The ministry said prior convictions are relevant because “they are proof that specified activities have been occurring at or in close proximity to the property. Previous criminal convictions may also show how the community is being adversely impacted.”

McDermott said the anonymity factor is a concern because people have a basic right to face an accuser.

“You should be able to answer complaints against you,” she said.

And, she questioned how far back in times people’s past convictions would be used against them.

“You’ve paid your dues to society; now, they’re going to hold it against you,” she said. “Sure, you were a drug dealer in the past. Why are we going to use that as evidence you’re doing that now?”

She said dredging up people’s pasts goes against the concept that the Canadian justice system is built on the principle of rehabilitation.

The ministry also said including people’s past convictions reduce court administrative burdens, meaning investigating officers needn’t testify, and that less evidence would  “have to be gathered and submitted to the court to prove that specified activities are occurring that are adversely impacting the community when there is a lengthy criminal history associated with the property.”

Asked if giving a court a person’s prior convictions was fair, the ministry said that if a conviction had already been entered in a similar offense, the previous court would have to have accepted the evidence of a crime was beyond a reasonable doubt.

“For a community safety order, the court needs to be convinced on a balance or probabilities that specified uses are habitually occurring and that they are adversely impacting the community, the ministry said. “It stands to reason that the court, in an application for a community order that is applying a lower burden of proof, will find the same offence occurred as the criminal court if all the same evidence was introduced.”

Bryant said all of those points are constitutionally offensive.

“They rely on the principle of guilt by association and presumption of guilt – guilty once and guilty thereafter,” he said.

Moreover, Bryant said, there has never been evidence of a chronic nuisance property problem in Canada.

“There’s absolutely no need for this law,”he said.

McDermott said condominium dwellers unhappy with a sex worker next door could use the bill to oust a person doing something legal in their own home.

“It reeks of puritanism,” she said.

Further, she asked, if there are children in a home, who will look after them?

And, she said, it could also be used against homeless people living in tent cities or against protesters.

Like Bryant, McDermott questioned the need for the bill.

Farnworth stressed the tools in the amended Community Safety Act will target criminals operating in neighbourhoods and will be in addition to the existing justice regime, not an alternative to it.

 

Reporter Jeremy Hainsworth can be contacted at jhainsworth@glaciermedia.ca

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