Updated: NDP's Farnworth defends new law against charge it violates democratic rights

Former civil liberties lawyer, now Attorney General David Eby won’t comment on Community Safety Act amendments

B.C.’s solicitor general is confident his Community Safety Act amendments are legally sound despite civil libertarians’ assertions proposed changes violate basic Canadian constitutional legal rights.

Both the B.C. Civil Liberties Association and the Canadian Civil Liberties Association say Minister of Solicitor General and Public Safety Mike Farnworth’s additions to the 2013 law violate rights such as the presumption of innocence when charged with a crime and due process in the court system.

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The groups said the changes violate the Constitution’s Charter of Rights and Freedoms section on right to life, liberty and security of the person.

“They can think whatever they like,” Farnworth said April 9 as he defended the changes, saying similar acts have been passed in other provinces and that local governments support the proposals.

Farnworth said B.C.’s amended law is similar to those in Alberta, Saskatchewan, Manitoba, Nova Scotia, New Brunswick and Yukon.

However, only the Alberta, Saskatchewan and New Brunswick laws go as far as apparently presuming people to be guilty based on past convictions.

But, when a Nova Scotia couple was evicted under a community safety order in that province’s legislation, the courts upheld the order. The court found that the property was habitually used for the possession, use, consumption, sale, transfer or exchange of illicit drugs. It said previous convictions were not needed to corroborate that fact. The court said that police observations of known drug dealers, confessions of drug use and multiple anonymous complaints established a problem property.

“The impugned activity need not be daily, continual or permanent,” the Nova Scotia Court of Appeal ruled in 2012. “Occasional activity implying ongoing conduct would suffice.”

Farnworth said B.C.’s bill has passed a legal review.

“We have every confidence in it,” Farnworth said, adding people in communities around B.C. are tired of nuisance properties and drug houses.

Farnworth said April 4 that Bill 13 will help crack down on such properties.

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.

The original act was passed in 2013 after being presented by then-minister of Justice Shirley Bond.

While it allowed confidential complaints, the legislation did not specify use of previous convictions or that officials need not testify to those offences as the current bill does.

Liberal attorney general critic Michael Lee, a lawyer, said the 2013 law tried to balance legal rights and community concerns.

“This government has had a tendency to step all over those rights,” Lee said, pointing to the looming ICBC minor injuries claims cap as another example.

Lee said the Liberals would be addressing concerns about the community safety bill when it gets to committee stage.

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

The civil liberties associations say the law strips British Columbians of the constitutional right to face an accuser, pits landlords against tenants and will put the poor and mentally ill onto the streets during a housing crisis.

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.”

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.”

The ministry said the lower standard of proof required under the bill would allow a court to accept that alleged offenses are occurring given similar offense had happened in the past.

Victoria lawyer Michael Mulligan, a member of Lawyers’ Rights Watch Canada, said Farnworth should be discussing “whether it’s wise, fair, or reasonable, to permit people to be evicted from their home based on anonymous reports, or things they may have done in the distant past.”

“There is some significant risk that this legislation will be used by landlords as a mechanism to evict tenants, without needing to go through the residential tenancy process, so that they can raise rents, Mulligan said.

 “It would be entirely possible to design legation that would meet the reasonable objective of ensuring communities aren’t inappropriately disrupted by unlawful activity without resorting to anonymous reports, or decision making based on past, rather than present, behavior,” Mulligan said.

Canadian Civil Liberties Association executive director and former Ontario attorney general Michael Bryant said April 8 the bill poses “significant constitutional risk.”

It targets people struggling with poverty and with mental health and addiction issues, Bryant said.

B.C. Attorney General David Eby, former executive director of the B.C. Civil Liberties Association and PIVOT Legal Society, which advocates for the poor, has championed the rights of the underprivileged in the past.

“Minister Eby is not available for an interview,” his staff said, directing Glacier Media back to Farnworth’s office.

Farnworth stressed the tools in the act will target criminals operating in neighbours and will be in addition to the existing justice regime, not an alternative to it.

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