Alberta (Director of Law Enforcement) v. Ferguson, 2011 ABQB 13

Court of Queen ’ s Bench of Alberta Citation: Alberta (Director of Law Enforcement) v. Ferguson, 2011 ABQB 13 Date: 20110110 Docket: 1010 00539 Registry: Red Deer In the Matter of The Safer Communities and Neighbourhoods Act , R.S.A. 2007, c. S-0.5 Between: The Director of Law Enforcement Applicant - and - David Lloyd Ferguson and Public Trustee Respondent Editorial Notice: The date code above has been corrected to read 20110110. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice A.B. Moen _______________________________________________________ I.

Introduction [ 1 ] On July 14, 2010, the Director of Law Enforcement applied under the Safer Communities and Neighbourhoods Act , S.A.,

2007, c. S-0.5 (the Act ), for a community safety order with respect to a property owned by the respondent, David Lloyd Ferguson (“Ferguson”). I granted the order on that date. These are my reasons for doing so. [ 2 ] I note at the outset that Ferguson was not present nor was he represented by counsel. I was satisfied that he had been properly served with all of the relevant documents in more than ample time. He was served with the affidavits in May [1] and the brief in June, 2010.

The Public Trustee, who was responsible for his finances, was present at the hearing and advised that Ferguson had been told that he could consult with a lawyer and the lawyer could contact the Public Trustee to arrange for payment. [ 3 ] Ferguson owns an apartment-style condominium (“the property”) located at #305, 103 Hermary Street, Red Deer, Alberta in the Highland Green neighbourhood. Both Ferguson, and his wife, Elaine Ferguson (“Mrs.

Ferguson”), lived in the property. [ 4 ] As a result of five complaints made in December 2009 and January 2010 to the Director of Law Enforcement, surveillance was established which led to the Director’s conclusion that Ferguson was active in the purchase and consumption of controlled substances, and that his wife, allowed these activities to happen at the property. Further, they concluded that there was prostitution associated with the property. [ 5 ] The Director of Law Enforcement applied to the Court pursuant to

Part 1 of the Act for a Community Safety Order closing the property to use and occupation for a period of 90 days. After that period of time, the order expires and Ferguson is permitted to move back into the property. [ 6 ] The issues in this application are: 1. Should a Community Safety Order be Granted? a. Is there a reasonable inference that the property is being habitually used for a specified use under the Act ; and b. Is the community or neighbourhood adversely affected by these activities; or c.

Are the activities a serious and immediate threat to the health, safety, and security of one or more of the occupants of the property or persons in the community or neighbourhood? 2. If so, what should be the nature and scope of the Community Safety Order? II Discussion [ 7 ] The Act allows the Director of Law Enforcement to apply to the Court of Queen’s Bench for a community safety order, requiring the property in question to be closed for up to 90 days. [ 8 ]

Section 7 of the Act states that the Court may make a Community Safety Order if: (

a) it is satisfied that

(

i) activities have been occurring on or near the property named in the application that give rise to a reasonable inference that it is being habitually used for a specified use, and (ii) the community or neighbourhood is adversely affected by the activities; or (

b) it is satisfied that the activities about which an application is made are a serious and immediate threat to the health, safety and security of one or more occupants of the property or persons in the community or neighbourhood. [ 9 ] Therefore there are two possible means by which the Director can prove that a Community Safety Order should be granted by the Court. The first requires a two part test: specified use of the property and adverse affect on the community. The second is that activities are a serious and immediate threat.

Therefore, here the Director must prove one of those two possibilities. [ 10 ] The evidence before the Court consisted of affidavit evidence, as is permitted by the Act , from: · Mike Letourneau, a Peace Officer employed by the Solicitor General as an investigator within the office of the Safer Communities and Neighbourhoods (SCAN) Unit and the lead investigator in this matter; · Chris Manuel, a Peace Officer employed by the Solicitor General who worked with Investigators Letourneau, Pickard, Utigard, Stuart, and Wright conducting surveillance at the property; · Grant Wright, a Peace Officer employed by the Solicitor General; · Brent Pickard, a Peace Officer employed by the Solicitor General; · Greg Utigard, a Peace Officer employed by the Solicitor General; · Glenn Stuart, a Peace Officer employed by the Solicitor General; · Constable Joshua Matthies, Police Officer employed by the Royal Canadian Mounted Police. [ 11 ] This affidavit evidence contained hearsay information obtained by the investigator, Letourneau, from five unnamed complainants and some of that information was consistent with Letourneau’s observations made at the same time.

The evidence also contained evidence of observations made by the above police officers which was given in considerable detail. A. Constitutionality of the Act [ 12 ] I wish to briefly acknowledge the issue of the constitutionality of this legislation. While this issue was not raised before me and I make no finding on it, it has arisen in a number of other decisions considering this type of legislation. I note that very similar legislation was upheld as constitutional by the Nova Scotia Supreme Court in Nova Scotia (Director of Public Safety) v.

Cochrane , 2008 NSSC 60 , 263 N.S.R. (2d) 159, and the Saskatchewan Court of Queen’s Bench in Saskatchewan (Director of Community Operations) v. Li , 2007 SKQB 114 , 294 Sask. R. 15. B. Standard of Proof

[ 13 ] We must first determine what the standard of proof is under this particular legislation. S. 7 (

a) of the Act requires the Court to draw a “reasonable inference” that certain activities are occurring on or near the property in question. Does this imply a criminal standard, the civil standard of a balance of probabilities, or a standard less than the civil standard? [ 14 ] Gerein J. in Saskatchewan (Director of Community Operations) v. Carroll , 2006 SKQB 360 , 283 Sask.

R. 305 in discussing similar legislation in Saskatchewan, held that, for the court to draw a reasonable inference that the property was being used for a “specified use”, a high standard of proof was not demanded, but that there must be some evidence from which the court could logically draw an inference: at para. 6. That Saskatchewan legislation used the language “reasonable inference” as does s. 7 of Alberta’s legislation. [ 15 ] In Alberta, Yamauchi J., approved of this statement of the law in the unreported decision of Director of Law Enforcement v.

Thomas Andre Benoit and Eileen Elizabeth Benoit (8 October 2009), Edmonton 0903-14658 (Alta. Q.B.). [ 16 ] When he used the language “high standard of proof” it is possible that Gerein J. was referring to the criminal test, that is, proof beyond a reasonable doubt. He does not explain whether a “high standard” was meant to include the civil standard. Therefore, I refer to the line of cases in other jurisdictions that find that the proof required is the civil test of a balance of probabilities, rather than a mere inference. [ 17 ] In Saskatchewan (Director of Community Operations) v.

S.M.M. , 2006 SKQB 19 , McMurtry J. refused an application, finding that the evidence of the investigator and the complainants were insufficient. He noted: The Act anticipates that the Director will put forward evidence, through the investigator, that the investigator has gained from confidential sources. Given the serious consequences for the respondents , the Court must carefully consider the quality of the evidence received, particularly as the complainants cannot be subjected to cross-examination.

Many of the allegations are lacking in sufficient detail to establish that the alleged activity occurred at the premises ... (Emphasis added) [ 18 ] In Nova Scotia (Director of Public Safety) v. Cochrane , 2008 NSSC 60 , 263 N.S.R. (2d) 159, Warner J. held that the burden of proof applicable to the evidence giving rise to a reasonable inference should be greater than the standard required to obtain a search warrant and concluded that the standard should be on a balance of probabilities.

He reasoned that the remedy granted under the Safer Communities and Neighbourhoods Act is similar to the remedies associated with injunctions or equitable remedies generally, therefore, the burden of proof from the civil context should apply to this legislation (at para. 48): As Justice McMurtry noted in M(SM) , the Court must carefully consider the quality of the evidence, given the serious consequences of making an Order. The burden of proof as to what gives rise to a reasonable inference is contextual.

I know of no burden in any civil context that is not at least a burden of establishing the facts on a balance of probabilities . The nature of the remedies in the Act are not dissimilar to those associated with an injunction, or equitable remedies in general. I apply that burden in this case. (Emphasis added) [ 19 ] In Nicloux v.

Whitehorse Housing Authority , 2009 YKSC 45 , Johnson J. concluded that the appropriate standard of review was on a balance of probabilities, and concluded that in that case there was insufficient evidence to draw the necessary inference on a balance of probabilities that drug dealing took place at or near the property. [ 20 ] In my view, there are several reasons to interpret s. 7 as requiring proof on a balance of probabilities:

Section 7(a)(

i) says that the Court must be “satisfied” that the property is used for the specified use. Similarly, s. 7(

b) says that the Court must be “satisfied” that the activities complained of are a serious and immediate threat. “Satisfaction” suggests a higher threshold than a mere inference; 2. S. 7(

b) does not reference “reasonable inference” It is logical to presume that the same standard of proof applies to both s. 7(

a) and 7(b), that is, proof on a balance of probabilities; 3. Where the term “reasonable inference” is used, it is merely a recognition that for some of the specified uses there may be no direct evidence, but that does not have the effect of lowering the standard of proof. In fact, adding “reasonable” to the inference suggests a requirement that the evidence be relatively strong; 4. The remedies under the Act are similar to injunctions, and would have serious consequences for the respondents; 5. The informants are permitted to remain anonymous, not subject to cross-examination.

This disadvantages the owner of the property in question in that s/he cannot test the reliability or credibility of the complaints. Therefore, it would, in my view, be unreasonable to apply a lower standard of proof than a balance of probabilities; and 6. Generally, a balance of probabilities is the standard of proof for civil matters, subject to a legislative indication to the contrary, and here, if the legislation intended proof of less than a balance of probabilities, the legislature ought to have made that clear in the legislation.

Here there is no indication that the civil standard is not the one to apply. [ 21 ] Therefore, I shall apply a balance of probabilities as the standard of proof in this case. [ 22 ] I turn now to a discussion of whether the Director has met this standard of proof for each of the essential elements required under the Act before granting an order closing the property. C.

Should a Community Safety Order be Granted in the Circumstances of this Case? [ 23 ] Here, we must consider whether, on a balance of probabilities, the property in question has been habitually used for a specified use under the Act , and whether the community or the neighbourhood has been adversely affected by that use: s. 7 (a). Alternatively, the Court may consider whether the activities about which the application is made are a serious and immediate threat to the health, safety and security of one or more occupants of the property or persons in the community or neighbourhood.

If the Director proves either of these things on a balance of probabilities, the Court may make a Community Safety Order. [ 24 ] First we will consider s. 7 (

a) of the Act by asking two questions, about the use of the property and about whether that use adversely affects the community. 1. Is there a reasonable inference that the property is being habitually used for a “specified use” under the Act ? [ 25 ] “Specified use” is defined in s. 3 of the Act (attached as an appendix to this decision).

For the purposes of this application, the specified use of the property complained of includes: the possession, growth, use, consumption, sale, transfer or exchange of a controlled substance, as defined in the Controlled Drugs and Substances Act (Canada), in contravention of that act ( s. 3 (e)(iii)); and prostitution or activities related to prostitution ( s. 3 (e)(v))). [ 26 ] There are currently no reported decisions in Alberta considering the application of the Act . There are, however, a number of decisions from other provinces considering very similar legislation.

These decisions have been helpful in assisting the Court in interpreting and applying the provisions of Alberta’s Act . [ 27 ] The complaints in this case date back to September 25, 2007. The complainants told the investigators that they believed that the activities at the property were a serious threat to their health, safety, and security. As a result of these complaints, the Safer Communities and Neighbourhoods Unit (“SCAN”) began an investigation into the activities at the property. As a result of the complaints and some surveillance conducted by SCAN, it was decided to serve Ferguson with a warning letter.

[ 28 ] On December 10, 2009, investigators went to the property to serve Ferguson with the warning letter advising him that the activities on the property were having an adverse effect on the community and needed to cease. Both Mr. and Mrs. Ferguson spoke with investigators when the letter was served. Ferguson said that he would quit selling and smoking crack. Mrs.

Ferguson told investigators that Ferguson continually let people in to the property to smoke crack, and that she was unable to keep them out. [ 29 ] Between December 1, 2009 and January 14, 2010, the investigators conducted further extensive surveillance at the property. This surveillance included the installation of a video camera in the third floor hallway of the condominium building.

This camera sent a live feed of the images of the third floor hallway, including the exterior door of the property, to monitors in the surveillance team’s vehicles. [ 30 ] The activities at the property continued after the warning letter was delivered.

Between December 16, 2009, and January 23, 2010, five individuals complained to the Director of Law Enforcement about drug use, drug trafficking, and prostitution occurring at Ferguson’s property. [ 31 ] The complainants, whose anonymity is protected under s. 31(1) of the Act , advised SCAN Unit of the following: · Numerous individuals approached the property on foot, stayed for a short period of time, and then left.

These visits happened throughout the day and night; · Ferguson had been observed meeting with several vehicles in the parking lot of the property, getting into the vehicles, driving one block away, and then returning on foot; · Numerous individuals, including Ferguson and Mrs. Ferguson, had been observed leaving the property, appearing to be high on drugs; · A strong odour of marijuana had been smelled coming from the property; · Ferguson had been observed meeting with the same two black males on numerous occasions in the parking lot of the condominium in which the property is located.

The meetings were brief, and afterwards Ferguson returned to the property. The men often arrived in different vehicles, and the vehicles often had rental plates; · Several men and women had been observed standing outside the property, screaming for “Lloyd” (Ferguson), throughout the day and night, requesting drugs; · A number of women had been observed visiting the property, many of whom appeared to be high on drugs and appeared dishevelled.

On one occasion, a woman dressed in a mini skirt, with no jacket, track marks visible on both arms, stood outside of the property in minus 20 degree Celsius weather screaming for Lloyd to let her in; and · Two men were overheard at the main entrance to the condominium building. The first man asked, “Do you have the coke”?

The second man replied, “Yes, it was 305.” [ 32 ] The investigators observed many of the same activities as had the complainants including dial-a-dope transactions, individuals leaving the property displaying signs of drug impairment, and a large volume of foot and vehicle traffic coming and going from the property. They also observed individuals, coming to and from the property, causing damage to the condo building. [ 33 ] In January, the investigators observed a woman frequently coming and going from the property. Further, they observed her

[ 33 ] In January, the investigators observed a woman frequently coming and going from the property. Further, they observed her standing on the street near the apartment complex and behaving in a way they say is common for soliciting. However, they provided no evidence that she was using the property for the purpose of prostitution. It appears that she lived at the property. She admitted to investigators that she was a prostitute who was staying at the property. She also admitted to using crack cocaine.

Her frequent comings and goings appeared to be related to dealing drugs which was shown to be connected to the property. The evidence, therefore, supports an inference that she obtained drugs from the property and may have been involved in dealing drugs. However, the evidence is not sufficient, that is, it is not proved on a balance of probabilities that her prostitution was associated with the property.

In order for this to be proved there must be sufficient evidence that an inference can be drawn that the property was used for the purpose of prostitution. [ 34 ] On another occasion in January, police stopped a vehicle full of passengers immediately after they left the property. The occupants of the vehicle admitted to smoking crack cocaine in the property, and that they had done so on at least one other occasion. [ 35 ] The Director continued to receive complaints through the spring of 2010, and there was additional surveillance conducted in June and July of 2010 shortly before the application.

Both investigators, and complainants observed the same type of activities as in December and January necessary for the requirement that the Director prove habitual use. [ 36 ] In addition to the information from the complainants and the extensive surveillance, the investigators gathered information about the persons who frequented the property.

A number of the individuals possessed criminal records for drug related offences. [ 37 ] Based on the above information, it was Investigator Letourneau's belief that a controlled substance or substances were being habitually trafficked and consumed at the property, and that at least one prostitute was living at the property.

Letourneau also believed that the respondent was active in the purchase and consumption of controlled substances, and that his wife, allowed these activities to happen at the property. [ 38 ] I find that the evidence tendered by the Director in this application is more than sufficient to give rise to a reasonable inference that Ferguson's property was being used for the possession, use, consumption, sale, transfer or exchange of a controlled substance, as defined in the Controlled Drugs and Substances Act , in contravention of that Act .

The seemingly unending stream of vehicular and foot traffic of visitors who stayed only for very short periods of time, the observation of drug impaired individuals coming and going from the property, Ferguson's repeated engagement in the sale of drugs in the parking lot of the property, and Mr. and Mrs. Ferguson's admissions that the use and sale of drugs was consistently occurring in the property all leads me to this inference on a balance of probabilities.

Further, the property was habitually used for such purposes supported by complaints as old as 2007 and as recent as June/July 2010. [ 39 ] However, I do not find that the evidence gives rise to a reasonable inference that the property was being used for prostitution or activities related to prostitution. The only evidence of prostitution was that an admitted prostitute told investigators that she sometimes stayed at the property, and was observed coming and going from the building.

In my opinion, this does not lead to a reasonable inference that the property was being used for prostitution or activities related to it. 2. Is the community or neighbourhood adversely affected by these activities? [ 40 ] The second part of s. 7(

a) requires the court to find that the community or neighbourhood is adversely affected by the activities. Whether a community or neighbourhood is “adversely affected” is defined in the Act . [ 41 ] Section 3(2) of the Act defines the term“adversely affected”as follows:

(2) For the purposes of this Part, a community or neighbourhood is adversely affected by activities if the activities (

a) negatively affect the health, safety or security of one or more persons in the community or neighbourhood; or (

b) interfere with the peaceful enjoyment of one or more properties in the community or neighbourhood, whether the property is

privately or publicly owned. [42] In Saskatchewan (Director of Community Operations) v. Li, at para. 7, the Court held that where there is a reasonableinference that the property is being used for “specified use” activities, the community and neighbourhood will be adversely affectedbecause the activities, by their very nature: (

a) negatively affect the health, safety or security of one or more person in the communityand neighbourhood in which they are occurring; and (

b) interfere with the peaceful enjoyment of one or more properties in thecommunity in which they are occurring. The Court continued (at para. 8): These activities, by their nature, have these effects because: (

a) by virtue of the inference I have made under s. 8(1)(a)(i), the activities are criminal, and they attract to the community andneighbourhood people who engage in related criminal activity; and (

b) criminal trade in a controlled substance in a community or neighbourhood is anathema to the well-being of people in thecommunity or neighbourhood, and to the peaceful enjoyment of the community or neighbourhood. [43] In Li, the Court was faced with very similar facts to the case at bar - a high volume of repetitive vehicle and pedestrian trafficconsistent with drug use and trafficking, and the persistent presence of individuals with drug-related criminal records. [44] Yamauchi J. in Benoit adopted these comments. [45] I agree, but with some qualifications.

Section 7(

a) provides that the Court must be satisfied both that (

i) the property ishabitually used for one of the specified uses, and (ii) that the community or neighbourhood is adversely affected by the activities. Ifproof of the first was all that was necessary to establish (ii), there would be no purpose to including (ii). Principles of statutoryinterpretation presume that the legislature will avoid superfluous or meaningless words ( R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61 at para.28).

As noted by Sullivan in Sullivan on the Construction of Statutes (5th ed.) (Markham: Lexis Nexis Canada, 2008) atp. 210: ...every word and provision found in a statute is supposed to have a meaning and a function. For this reason courts should avoid, as muchas possible, adopting

interpretations that would render any portion of a statute meaningless or pointless or redundant. [46] In my view, the same evidence that gives rise to the inference that drugs are being used, consumed, sold and/or transferredmay also be evidence that the community is adversely affected but that evidence must go specifically to whether there is an adverseeffect. In this case, the complainants and the investigators noted frequent stop and go traffic, late night noise and commotion, and theattendance of known criminals.

That evidence together with other evidence before me is proof of the activity, and establishes that itadversely affected the community by interfering with the peaceful enjoyment of the community. It is not that proof of (

i) establishes (ii),only that the same evidence may apply to both. There may be occasions, for example, where there is enough surveillance evidence toinfer that a property is being used to sell drugs, but the activity does not adversely affect the neighbourhood or community because thenature of the activity is not particularly disruptive to the neighbourhood or because of the nature of the neighbourhood (industrial forexample). [47] Moreover, it may be that some of the specified uses under s. 3(1)(

e) will not “by their very nature” negatively affect thehealth, safety or security of those in the community or interfere with the peaceful enjoyment of properties in the community. In thatcase, it will be necessary to provide additional evidence of adverse effect. [48] In any event, here, some of the complainants stated to the investigators that they were losing sleep over the activities takingplace in the middle of the night. Further, all of the complainants expressed fear for their safety. One complainant complained of propertydamage.

All of this shows an adverse affect in that it is interfering with the peaceful enjoyment of their property and may have beenhaving an adverse effect on their health, safety or security.

[ 49 ] Having found that there is a reasonable inference that the property was habitually being used for drug-related activities, I also find that these activities adversely affected the community and the neighbourhood. Applying the reasoning in Li , I find that these activities by their very nature had an adverse affect on the other residents of the condo building. This was borne out by their complaints that they feared for their safety, and were having trouble sleeping due to the activities that were being carried out at the property and suffered property damage.

While I did not hear any evidence of complaints from outside of the condo building, I am satisfied that the building itself is enough to constitute a neighbourhood or community under the Act . 3. Are the activities a serious and immediate threat to the health, safety, and security of one or more of the occupants of the property or persons in the community or neighbourhood? [ 50 ] In the alternative to the two questions above relating to s. 7 (a), the Act provides at s. 7 (

b) that we can consider whether the activities are a serious and immediate threat to the health, safety, and security of one or more of the occupants of the property or persons in the community or neighbourhood. [ 51 ] As I have determined that there is a reasonable inference that drug-related activities were occurring at the property, and that they had adversely affected the surrounding community, it is unnecessary to consider whether the activities were a serious and immediate threat to the health, safety and security of one of the occupants of the property, or persons in the community or neighbourhood. 4.

Conclusion I find that the Director has proved on a balance of probabilities, that the property in question has been habitually used for a specified use under the Act , that is, dealing and using illegal drugs, and that the community or the neighbourhood has been adversely affected by that use. Therefore, a Community Safety Order should be granted. D. Nature and scope of the order [ 52 ] Once the decision is made to grant the Community Safety Order, the Court must also consider the nature and scope of the order.

The Act sets out mandatory requirements in the order, discretionary requirements and the maximum closure period at 90 days. In Manitoba (Director, Aboriginal & Community Law Enforcement) v. Manaigre , 2009 MBQB 113 , 239 Man. R. (2d) 302, the Court grappled with the appropriate duration of closure.

The Court stated at para. 48: "It is unlikely that the setting of such a time frame, for the purpose of achieving the goal (of stopping the activities) and not for any other extraneous purpose, can be more precise than a reasoned estimate based on general experience and the specific factors in a given situation." [ 53 ] In this

section I will set out in a cursory way the requirements for a Community Safety Order as I granted an order at the time of the hearing. [ 54 ] The Act specifies what must be included in a Community Safety Order, should the Court decide to grant one. Section 7(2) states that a Community Safety Order shall: (

a) describe the property and the activities with respect to which the order is made, (

b) if the Director intends to register a caveat under

section 22, specify the certificates of title with respect to which the order is made, (

c) enjoin all persons from causing, contributing to, permitting or acquiescing in the activities, (

d) require the respondent to do everything reasonably possible to prevent the activities from continuing or reoccurring, including anything specifically ordered by the Court pursuant to subsection 3 (e),

(

e) fix the date on which the order ceases to be in effect, and (

f) contain a statement of the right to appeal the order pursuant to

section 23. [ 55 ] In addition to the mandatory elements of the Order, the Court may also include the following terms, set out in s. 7(3): (

a) require any or all persons to vacate the property on or before a date specified by the Court, and enjoin any or all of them from re- entering or re-occupying it; (

b) terminate the tenancy agreement or lease of any tenant of the property on the date specified pursuant to clause (a); (

c) require the Director to close the property from use and occupation on a specified date and keep it closed for up to 90 days; (

d) limit the order to the part of the property about which the application was made, or to particular persons; (

e) make any other provision that the Court considers necessary for the effectiveness of the community safety order, including, but not limited to, an order of possession in favour of the respondent. [ 56 ] When determining the length of the period of closure, pursuant to s. 7(3)(c), the Court must consider the following criteria, set out in s. 7(4): (

a) the extent to which the respondent’s failure, if any, to exercise due diligence in supervising and controlling the use and occupation of the property contributed to the activities; (

b) the impact of the activities on the community or neighbourhood. [ 57 ] Having decided that a Community Safety Order should be granted on the basis of the habitual and continuing use of the property for drug consumption and sale, I must now consider what the nature and scope of the order should be. [ 58 ] In exercising its discretion as to the duration of the Order, t here are certain factors that the Court must take into consideration including: the extent to which the respondent's failure, if any, to exercise due diligence in supervising and controlling the use and occupation of the property contributed to the activities; and the impact of the activities on the community or neighbourhood. [ 59 ] First, I find that Ferguson failed to exercise due diligence in supervising and controlling the use of the property.

He admitted to investigators that he sold and used crack cocaine at the property. His wife also told investigators that other people did the same, and that she was unable to stop them. It is clear that Ferguson did not exercise any diligence in preventing himself or others from using or selling drugs at the property, and in fact, he participated and encouraged these activities to continue. [ 60 ] Further, he was given a warning in December 2009 but he continued in these activities as observed by the investigators as late as July 2010, shortly before this application.

Complaints continued to be made by residents of the condominium. [ 61 ] Second, I have already found that these activities have had an adverse affect on the condo community.

[ 62 ] In its application, the Director requested that the maximum closure period of 90 days be imposed on the Respondent. This was due to the high number of people who frequented the property to use or purchase drugs. It was the Director's argument that the 90 day period was required for these various individuals to realize that the property could no longer be used for those purposes, and to eventually stop coming to the property. [ 63 ] I agree.

Based on the extensive evidence before me, I find that the maximum closure period is required in order for the steady stream of traffic to the property to cease, and for those individuals to realize that they can no longer purchase or consume drugs at Ferguson's property. III. Conclusion [ 64 ] I find that a Community Safety Order should be granted with respect to Ferguson and the property and that the length of the Order should be 90 days. Heard on the 14 th day of July, 2010. Dated at the City of Edmonton, Alberta this 10 th day of January, 2011. A.B. Moen J.C.Q.B.A.

Appearances: Cynthia Hykaway for the Applicant Elizabeth MacInnis for the Public Trustee David Ferguson Self Represented (did not appear)

Safer Communities and Neighbourhoods Act. SA 2007, c. S- 0.5 3(1) ... (e) "specified use" means, in relation to property, the use of property for (

i) the manufacturing, import, purchase, sale, transport, giving, possession, storage, consumption or use of liquor, as defined in the Gaming and Liquor Act, in contravention of that Act , (ii) the use or consumption as an intoxicant by any person of an intoxicating substance, or the sale, transfer or exchange of an intoxicating substance if there is a reasonable basis to believe that the recipient will use or consume the substance as an intoxicant, or cause or permit the intoxicating substance to be used or consumed as an intoxicant, (iii) the possession, growth, use, consumption, sale, transfer or exchange of a controlled substance, as defined in the Controlled Drugs and Substances Act (Canada) , in contravention of that Act , (iv) child sexual abuse or activities related to child sexual abuse, (

v) prostitution or activities related to prostitution, (vi) the commission or promotion of a criminal organization offence, (vii) the accommodation, aid, assistance or support of any nature of a gang or criminal organization or any of its activities or the facilitation of any of its activities, or (viii) any other use prescribed in the regulations; [1] With the exception of an additional affidavit sworn by Grant Wright concerning the video surveillance in the hallway outside the property which was connected by a live feed to the officers situated outside the condominium building.