New Brunswick

Minister lashes out as Green MLA stalls vote on 'safe communities' bill

A frustrated public safety minister has accused a Green MLA of being “a shill for organized crime” after he held up amendments to a law that lets authorities push accused drug dealers out of neighbourhoods without criminal convictions.

Ted Flemming clashes with Green MLA Kevin Arseneau over bill amendments

Green MLA Kevin Arseneau and Public Safety Minister Ted Flemming were at odds over whether a committee vote on amendments to the Safer Communities and Neighbourhoods Act should go ahead. (Legislative Assembly of New Brunswick)

A frustrated public safety minister has accused a Green MLA of being "a shill for organized crime" for holding up amendments to a law that lets authorities push accused drug dealers out of neighbourhoods without criminal convictions.

Ted Flemming lashed out at Kevin Arseneau, accusing him of wearing a "supercilious smirk" after the Kent North MLA insisted on his right to pose more questions about the bill.

Flemming had to leave the Wednesday meeting at 1:30 p.m. for an appointment, and he urged the legislative committee examining the bill to vote on it before adjourning.

Green Party MLA Kevin Arseneau wants to see data to back up Flemming's claim the SCAN program works. (Jacques Poitras/CBC News)

But MLAs have a right to unlimited questions during committee debate, and Arseneau refused to forgo that right, meaning the vote could not take place.

"I am not prepared to vote. … I have questions that have not been answered yet."

Flemming accused Arseneau of "posturing" by demanding data to back up Flemming's claim that the Safer Communities and Neighbourhoods Act has been working well. 

"He can sit there with his supercilious smirk all he wants," Flemming said. "We don't have the information."

The minister said he was willing to get the information to him later and said Arseneau would be to blame for impeding the province's efforts to crack down on crime.

Arseneau said he should not be expected to vote based only on the minister's verbal assurances that the Safer Communities and Neighborhoods Act is working.

"What I want is data, is facts. Not just 'I've seen that it works.' That's a very discretionary way to make laws." 

Committee members have a right to ask as many questions as they want, and Arseneau's refusal to allow a vote was upheld by the committee chair. (Karissa Donkin/CBC)

Other Progressive Conservative MLAs also called for a vote, but PC MLA and committee chair Greg Turner pointed out the rules allow Arseneau to keep asking questions. The debate will resume at a later date.

The Safer Communities and Neighbourhoods, or SCAN, program was passed into law in 2009 and started operating in 2010. It's designed to let authorities go through civil, not criminal, courts to force drug dealers and other criminals out of neighbourhoods.

​That means the burden of proof is not as high as establishing guilt beyond a reasonable doubt.

Flemming's amendments would protect the anonymity of neighbours who make complaints, which he acknowledged would "permit hearsay evidence" not normally admissible in court. 

They would also update the law to say there's a presumption a neighbourhood is "adversely affected" if a judge is satisfied "a property is being habitually used for a specified use" such as drug sales. That in turn makes it easier for the judge to issue an order under the act.

Nicole O'Byrne, an associate law professor at UNB, says one of the amendments puts a higher burden on the accused to disprove the allegations. (Mag Hood/Submitted Nicole O'Byrne)

University of New Brunswick law professor Nicole O'Byrne called that amendment problematic because it takes away a judge's discretion to decide how a neighbourhood is affected based on evidence.

And it also puts a higher burden on the person facing eviction to disprove the assumption.

Housing and anti-poverty activist Abram Lutes said allowing anonymous complaints opens the door to the law being abused to discriminate against poor and racialized tenants.

"It can easily be used as a pretext to get rid of people," he said. 

In 2015 an Edmundston man was evicted from an apartment after police warned his landlord he was the subject of a SCAN investigation before the case ever got to court.

In 2013, a Court of Queen's Bench judge in Saint John quashed two evictions by N.B.  Housing, the provincial government's social housing agency, that it launched after SCAN investigations.

Justice Peter Glennie's ruling was against New Brunswick Housing for not giving the tenants the chance to challenge their evictions, not against SCAN itself.

Still, Glennie said in his ruling that the SCAN investigations were "inadequate and superficial," pointing out the investigator never spoke to the tenants themselves.

Flemming's amendments have been through two readings by the full legislature and now must be approved by a committee before returning for a third and final vote. 

He said the SCAN Act has been a success.

"We have had many, many, many complaints, many investigations, many successful evictions, and many grateful people," he said. "This works. It's good legislation." 

Under the law, the SCAN unit in Flemming's department received and investigates a complaint and can then try to convince the "offending party" stop their behaviour or ask a judge to issue a "community safety order" to vacate the property.

The person named in the complaint is given a notice of that hearing so they can respond. 

But part of the amendments debated Wednesday will allow investigators to send the notice by registered mail rather than serving it to the person directly.

Public Safety Minister Ted Flemming said he didn't have the information MLA Kevin Arseneau wanted. (Jacques Poitras/CBC file photo)

Flemming said Wednesday that makes it harder for the person to avoid being served with the notice. "This allows that behaviour to not work to the advantage of a criminal," he said.

Flemming repeatedly referred to the subjects of SCAN investigations as "criminals" though at no point in the process are they charged with a crime.

Last May, Flemming told the legislature that the province's COVID-19 emergency order went "against my grain as a libertarian" because it gave the government extraordinary powers to limit personal freedoms when enforcing restrictions.

He said Wednesday the SCAN act doesn't limit a citizen's rights to procedural fairness before the courts.

"If someone doesn't like this statute they can appeal it or they can challenge it under the Constitution," he said.

ABOUT THE AUTHOR

Jacques Poitras

Provincial Affairs reporter

Jacques Poitras has been CBC's provincial affairs reporter in New Brunswick since 2000. Raised in Moncton, he also produces the CBC political podcast Spin Reduxit.

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