DIRECTOR OF COMMUNITY OPERATIONS (appointed under The Safer Communities v. Neighbourhoods Act, 2023 SKKB 280

KING ’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 280 Date: 20 23 12 22 Docket: KBG-RG-02499-2023 Judicial Centre: Regina BETWEEN: DIRECTOR OF COMMUNITY OPERATIONS (appointed under The Safer Communities and Neighbourhoods Act ) APPLICANT - and – MADDOX ROYCE BELLAMY RESPONDENT - and – SCOTIA MORTGAGE CORPORATION THIRD PARTY Appearing: Deena S. Wahba for the applicant Lexi Bellamy as self-represented respondent Erica Klassen for third party FIAT ROBERTSON J. December 22, 2023 Contents Paras.

INTRODUCTION ............................................................................................................. 1 BACKGROUND .......................................................................................................... 2-14

ISSUES ............................................................................................................................ 15 LAW ................................................................................................................................ 16 Purpose of the Act ................................................................................................. 16-17 Relevant provisions .................................................................................................... 18 Saskatchewan cases .................................................................................................... 19 Resolution of complaint without court action ............................................................ 20 Caveating and costs of enforcement ........................................................................... 21 Evidence ................................................................................................................ 22-25 Onus and standard of proof .................................................................................. 26-29 ANALYSIS ...................................................................................................................... 30 Unusual fact situation ........................................................................................... 31-34 Drug use as specified activity ..................................................................................... 35 Evidence of specified activity ................................................................................ 36-39 Whether requested order still necessary .............................................................. 40-45 Intervening foreclosure ......................................................................................... 46-49 Conclusion ............................................................................................................ 50-51 Order granted, but with condition of access ........................................................ 52-54 Right to Appeal .......................................................................................................... 55 INTRODUCTION [ 1 ] This decision addresses an application for a community safety order pursuant to s. 8 of The Safer Communities and Neighbourhoods Act , SS 2004, c S-0.1 [ Act ].

For the reasons which follow, the application is granted. BACKGROUND [ 2 ] Maddox Royce Bellamy [Owner] is the registered owner of a residential property with a civic address of 1649 Toronto Street, Regina, Saskatchewan and legally described as Lot 12, Block 245, Plan No. Old 33, Extension 17 [Property]. Ms. Bellamy’s chosen name is now Lexi Bellamy. [ 3 ] The Director of Community Operations [Director] is appointed under clause 3 (

a) of the Act with authority under s. 6(1) (

d) to apply to the court for a community safety order after receiving a complaint about specified activities on or near a property that adversely affect the neighbourhood. [ 4 ] The Director filed an originating application on November 7, 2023 seeking a community safety order with respect to the Property. [ 5 ] The Director filed three affidavits in support of the application: • Allan Hendren, Safer Communities and Neighbourhoods [SCAN] Investigator, sworn November 7, 2023 [Hendren Affidavit]; • Monica Payne, SCAN video reviewer, sworn October 1, 2023; and • Lorrie Hanna, Regina Police Service, Manager of Police Information and Evidence Management, sworn November 3, 2023. [ 6 ] The affidavits show that the Director received complaints on November 24, 2021 [First Complaint] and April 4, 2023 [Second Complaint] about suspected drug activity associated with the Property. [ 7 ] The First Complaint determined that the drug activity was connected to individuals living in the garage and a bus parked in the back alley.

Once those individuals departed, the objectionable activity ended or diminished and SCAN closed its file in 2022. [ 8 ] The Second Complaint prompted a new investigation in 2023. It determined that drug activity had resumed at the Property, based upon the high number of calls for police service, a death from drug overdose, crimes including robbery, home invasion and assaults with weapons, and disorderly conduct from intoxicated persons.

SCAN conducted surveillance of the Property from October 16 to 18, 2023 in which Investigator Hendren, a retired police officer, observed activity consistent with drug activity at the Property.

[ 9 ] The Director therefore applied to the court for a community safety order seeking to take control of and close the Property for 90 days. [ 10 ] The application was heard in chambers court on December 5, 2023 and adjourned to December 19, 2023 to allow the Owner the opportunity to file evidence. The Owner did not file any affidavit or other evidence. [ 11 ] The Property is currently vacant. [ 12 ] The Property is subject to foreclosure proceedings brought by Scotia Mortgage Corporation [Scotia Mortgage] as mortgage lender: KBG-RG-01098-2023.

Scotia Mortgage had taken steps to secure the Property after learning it was vacant, but later decided to leave the Property not fully secured. [ 13 ] On December 8, 2023, Scotia Mortgage applied on a without notice basis for an order nisi for foreclosure proposing a 90 day redemption period and 20 day possession period after final order for foreclosure. [ 14 ] On December 19, 2023, the court heard both the application by Scotia Mortgage for order nisi for foreclosure and the Director’s application for a community safety order.

While the two applications were heard separately, counsel for Scotia Mortgage was invited to remain for this application. Her attendance and input was helpful to the court. Decision on both applications was reserved. ISSUES [ 15 ] The issues to be decided are: 1. Has the Director established that the Property is being habitually used for the specified use (drug activity) which has in turn adversely affected the neighbourhood? 2. If so, should the court authorize an order? 3. If an order is to issue, on what terms?

LAW Purpose of the Act [ 16 ] The purpose of the Act was explained by then Minister of Justice and Attorney General Frank Quennell, Q.C. [Minister] in the second reading speech of Bill No. 43 on May 10, 2004 (Saskatchewan , Legislative Assembly, Debates and Proceedings (Hansard) , 25 th Leg, 1 st Sess (10 May 2004) at 998-999): The purpose of this Bill is to provide for additional powers for police and justice agencies in their efforts to foster safer communities and neighbourhoods in Saskatchewan.

The Bill does this in co-operation with our police services and municipalities by establishing new civil procedures to address problem residents and businesses in our neighbourhoods separate and apart from existing criminal law and municipal bylaw options. Mr. Speaker, this Bill, which draws from similar successful legislation in the province of Manitoba, seeks to hold property owners accountable for threatening or disturbing activities that are regularly taking place on their property.

The Bill will improve community safety by targeting and if necessary shutting down these residential and commercial buildings and land that are habitually being used for a list of specified activities including producing, selling, or using illegal drugs; prostitution; child sexual abuse; solvent abuse; or the unlawful sale and consumption of alcohol. [ 17 ] The Minister went on at page 999 to describe the court’s ability under the Act to protect innocent owners and tenants by fashioning appropriate terms of any order: Where an owner tenant or residential tenant is affected by such an order, they have a right to apply to the court to vary the order, based on their particular circumstances, as long as they have not been participating in creating the problem.

The owner of the property will also have the right to appeal any order of the court to the Court of Appeal on a point of law. Relevant provisions [ 18 ] The following provisions of the Act may be relevant to this application:

Interpretation of Part 4(1) In this Part: . . . (f) “specified use” means, in relation to property, the use of property for: . . . (iii) 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; (iv) 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 ; . . . When court may make community safety order 8(1) 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.

(2) A community safety order shall: (

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

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

c) 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 clause (3)(e); (

d) fix the date on which the order ceases to be in effect; and (

e) contain a statement of the right to appeal the order pursuant to Division 3.

(3) A community safety order may: (

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 reoccupying 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 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.

(4) The court shall consider the following when deciding the length of a period of closure pursuant to clause (3)(c): (

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.

(5) Before the date specified for closure pursuant to clause (3)(c), the respondent may apply to the court to set aside the portion of the community safety order requiring the property to be closed.

(6) In the case of a lease other than a tenancy agreement, before the date specified for termination of the lease of any tenant pursuant to clause (3)(b), a tenant may apply to the court to set aside the portion of the community safety order terminating the lease. . . . Evidence based on information and belief 60.01 Evidence based on information and belief is admissible with respect to any application pursuant to this Act . Saskatchewan cases [ 19 ] The Act came into force in 2004. This Court has considered applications under s. 8 (1) of the Act in the following reported decisions:

a) Saskatchewan (Director of Community Operations) v S.M.M., 2006 SKQB 19 (McMurtry J.) - application dismissed

b) Saskatchewan (Director of Community Operations) v Carroll , 2006 SKQB 360 , 283 Sask R 305 [ Carroll ] (Gerein J.) - application dismissed

c) Saskatchewan (Director of Community Operations) v Li , 2007 SKQB 114 , 294 Sask R 15 [ Li ] (Currie J.) – application granted

d) Saskatchewan (Director of Community Operations) v Mercer , 2007 SKQB 271 (Ball J.) – application granted

e) Director of Community Operations v Vrska , 2011 SKQB 291 [ Vrska ] (Schwann J. (as she then was)) – application dismissed

f) Director of Community Operations v Orr, 2012 SKQB 213 , 397 Sask R 177 [ Orr ] (Barrington-Foote J. (as he then was)) – application dismissed

g) Director of Community Operations v 101150089 Saskatchewan Ltd. , 2014 SKQB 289 , 454 Sask R 277 [ 101150089 ] (Elson J.) – application granted

h) Director of Community Operations v Goodman, 2020 SKQB 80 [ Goodman ] (MacMillan-Brown J.) – application granted; leave to appeal granted and stay ordered 2020 SKCA 51 Resolution of complaint without court action [ 20 ] The Act in s. 6 contemplates that the Director may give warning to the owner of the property or its occupant and attempt to resolve complaints before applying to the court. That was done in this case. That is as it should be, given the willingness of the Owner to cooperate and the significant personal and property interests affected by a community safety order.

Caveating and costs of enforcement [ 21 ] The Act in s. 23 allows the Director to register a caveat against a property which is the subject of an application.

Section 26 makes the owner personally liable for the costs of securing and closing a property subject to a community safety order.

Section 34 provides that a community safety order is effective against any subsequent owner.

Evidence [ 22 ] The application relies upon affidavit evidence, including records of police attendance at the Property and information told to the affiants. [ 23 ] In B.L. v Saskatchewan (Social Services), 2012 SKCA 38 at para 47 , 393 Sask R 57, the Court of Appeal upheld admissibility and reliance upon police records of attendance as business records under s. 52 of The Evidence Act , SS 2006, c E-11.2 . [ 24 ] The Act was amended in 2021 by The Safer Communities and Neighbourhoods Amendment Act, 2021 , SS 2021, c 27 , s 14 to add s. 60.01 , reproduced above.

This provision expressly allows evidence based on information and belief. [ 25 ] The court may draw an inference of adverse impact on the neighbourhood from evidence of the specified use. See: Carroll at para 6 ; Li at para 7 ; 101150089 at para 34; and Goodman at para 12 . In this context, it requires no stretch of the imagination to find that a “drug house” is bad for the neighbourhood. Onus and standard of proof [ 26 ] The Director has the onus to prove on the standard of a balance of probabilities 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.

See: Vrska at para 15 ; Orr at paras 10 and 17 ; and Goodman at para 10 . [ 27 ] Even if the Director satisfies this test, the court must still be satisfied that the requested order is appropriate, including what terms are appropriate and necessary. [ 28 ] In this case, there is a question whether the requested order is still necessary, given the changes in occupancy at the Property. The order must be necessary to stop current and ongoing activity. There must be a present need.

See: Carroll at para 7 ; Vrska at paras 13-14 ; and Goodman at para 13 . [ 29 ] In Goodman at paras 9 - 13 , MacMillan-Brown J. summarized the prerequisites for a community safety order, with reference to previous decisions of this Court: C. Prerequisites for a CSO [9] In Saskatchewan (Director of Community Operations) v Carroll , 2006 SKQB 360 , 283 Sask R 305 [ Carroll ] , Gerein J. described the interplay between the subsections contained in s. 8(1) of the Act . At paras. 4 and 5, he stated: 4 First, an order may issue if the court is satisfied that one of two situations exists.

The one is where there is a reasonable inference that the activities relate to a specified use which adversely affects the community. The other is where the activities are a serious and immediate threat to the community. The two situations are distinct and with respect to each the court must be satisfied about different things. 5 The second observation is that the two parts of s. 8(1)(

a) are conjunctive. Thus the court must be satisfied: (1) that the property “is being habitually used for a specified use ...” and (2) the community is adversely affected.

[10] As in Carroll , the Director’s application in this case is grounded in s. 8(1) (a). Therefore, the Director must establish that the Property: 1. is being habitually used for a specified purpose – in this case, drug activity; and 2. the neighbourhood and community are being adversely affected. [11] These two prerequisites to the granting of a CSO can be satisfied if the court is able to draw a “reasonable inference” in that regard. As noted by Gerein J., this does not mandate a high standard of proof. Rather, the court must ask itself whether there is evidence from which the inference can logically be drawn.

In other words, is there a sufficient evidential foundation provided in the materials filed in support of the Director’s application? See Carroll at para 6 . [12] In Saskatchewan (Director of Community Operations) v Li , 2007 SKQB 114 , 294 Sask R 15 [ Li ] , Currie J. noted that the inference that a property is being used for a specified purpose can be drawn from the nature of the activity itself – in that case drug activity.

At para. 7, he stated: 7 With reference to s. 8(1) (a)(ii) and s. 4(2) of the Act , I am satisfied that the community and the neighbourhood are adversely affected by the activities because, by their nature, the activities: (

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

b) interfere with the peaceful enjoyment of one or more properties in the community and neighbourhood in which they are occurring. See also the decision of Elson J. in Saskatchewan (Community Operations Director) v 101150089 Saskatchewan Ltd. , 2014 SKQB 289 at para 34 , 454 Sask R 277 . [13] There is a temporal element to s. 8(1) (a). The impugned activity must be currently taking place – in the present tense. If the activity has ceased, then a CSO will no longer be required and should not be ordered.

As indicated by Gerein J. in Carroll at para. 7 , “[t]his makes good sense, for if the objectionable activity has ceased and will not be renewed there is no need for an order”. ANALYSIS [ 30 ] Before turning to the issues, it may be well to acknowledge the unusual fact situation of this case. Unusual fact situation [ 31 ] This case is different from the usual circumstances that bring about an application for a community safety order. Most cases, not to mince words, involve a nuisance property either owned by a slum landlord or occupied by a drug trafficker or both.

The activities associated with the “drug house” create a blight on the neighbourhood. Other residents fear for their safety and the value of their property. The community safety order is intended to end the crime and disorder associated with the nuisance property. [ 32 ] In this case, the Director does not allege that the Owner is either a slum landlord or a drug trafficker or other type of criminal occupant of the Property.

On the contrary, the Owner has herself called police and has been a victim of crime on the Property. [ 33 ] The Owner opened her home up to vulnerable and homeless people as an apparent act of compassion and charity. As stated in the Hendren Affidavit at para. 29: Reading a number of IEIS reports, it became apparent that Bellamy, self-admittedly, opens her home to individuals living on the street and struggling with drug use in attempts to help them out. [ 34 ] As the saying goes, no good deed goes unpunished.

Drug use as specified activity [ 35 ] The Director relies upon the habitual use of the Property for a specified use, specifically “the possession, use, consumption, sale, transfer or exchange of a controlled substance, as defined in the CDSA, in contravention of that Act ”. While not stated, this description matches that in clause 4(1)(f)(iv). The activities described in the affidavit evidence might also fall within the definition in 4(1)(f)(iii) with respect to consumption of intoxicants on or around the Property.

Evidence of specified activity [ 36 ] The affidavit evidence does show the habitual use and consumption of intoxicating drugs at and around the Property over extended periods of time in 2021/22 and 2022/23. The Hendren Affidavit at para. 53(

a) reports that police described the Property as a “flop house”. [ 37 ] The Hendren Affidavit also records that the Owner called police for assistance and was herself a victim of crime associated with drug activity at the Property: (

a) paragraph 15(

b) that in November 2021 the Owner was the victim of a machete assault at the Property. (

b) paragraphs 18-19 that in December 2021 the Owner told police she had tried unsuccessfully to get people to leave the garage on the Property and bus parked behind the Property. (

c) paragraph 28 that on January 8 and 9, 2022 the Owner called police to remove unwanted guests from the Property.

(

d) paragraph 33 that on February 24, 2022 the Owner’s father told police that personal property had been stolen from the Property. (

e) paragraph 34 that on March 3, 2022 the Owner told SCAN investigators that she had kicked out “Nikkita, who was responsible for letting people into the Property” and that “she is finished allowing people into the Property.” (

f) paragraph 35 that on April 4, 2022 the Owner called police twice about an unwanted guest and disturbance on the Property. (

g) paragraph 44(

b) that on February 9, 2023, the Owner called police to report being attacked with a gun and bear mace on the Property. (

h) paragraph 44(

c) that on April 6, 2023, the Owner called police to report an attempt by a man with a shotgun to break into the Property. (

i) paragraph 52(

a) that on May 1, 2023 the Owner called police to report squatters on the Property and that there was no power, but ultimately told police she was okay with the people staying in the Property. (

j) paragraph 52(

c) that on June 15, 2023, the Owner called police to report someone kicking in the front door of the Property. (

k) paragraph 52(d)) that on July 14, 2023, the Owner called police to report a woman being assaulted and that the Owner had locked herself in the garage. (

l) paragraph 52(

e) that on July 17, 2023, the Owner gave permission to police to enter the Property as she wanted the people inside removed. (

m) paragraph 52(

f) that on July 31, 2023, the Owner called police about a mentally ill friend on the street. (

n) paragraph 50 that on August 21, 2023 the Owner told Investigator Hendren that she was now living in the garage and the Owner’s mother told Investigator Hendren that the house was “trashed”. [ 38 ] The materials filed show that the Owner has been cooperative with SCAN. However, the motivation or intent of the Owner is not especially relevant to the key issue of whether the Property is being habitually used for the specified activity which has in turn adversely affected the neighbourhood.

It may be relevant to the terms of any order, having regard to the flexibility afforded to the court by ss. 8 - 10 of the Act . [ 39 ] Property owners are responsible for the use of their property. Although the Owner has herself been a victim of crime on the Property and has called police and cooperated with SCAN, she has also been inconsistent or ineffective in controlling the use of the Property. I am satisfied that, as a result of the drug activity on and around the Property, the Property became a nuisance property which adversely affected the neighbourhood.

Whether requested order still necessary [ 40 ] As discussed above, the court must be satisfied there is a present need for a community safety order. [ 41 ] The Hendren Affidavit is the most recent affidavit. It was sworn November 7, 2023.

The Hendren Affidavit records at: para. 61 that on October 24, 2023 SCAN received a new complaint of two or three men living in the garage; at para. 62 that police were called on November 1, 2023 about someone stealing power from a neighbouring property with an extension cord; and at para. 63 that on November 5, 2023 police were called to a report of people kicking in the door to the Property and breaking a window.

So although the Property is now vacant, the Property appears to have a lingering reputation as a “flophouse” which is attracting criminal and anti-social activity likely associated with drug use. [ 42 ] The Director contends that the stigma or reputation of the house as a “flop house”, created by the previous drug activity, has resulted in ongoing objectionable activity which thereby justifies a community safety order. Simply put, the Owner may have left, but the Property remains a nuisance. The public and especially the residents of the neighbourhood are entitled to secure and quiet enjoyment of their property.

A community safety order is required to remedy the nuisance. [ 43 ] The Owner believes she can deter further drug activity on the Property. I do not doubt her sincerity, but I do doubt her ability to achieve that result, given the record of past drug activity. While not in evidence, the Owner told the court on December 19, 2023 that there had been a fire in the garage in recent days which I infer resulted from some trespass to the Property. [ 44 ] While the drug activity may be diminished, it continues and could quickly resume, as it has in the past.

On the evidence before me, I am satisfied that there continues to be a present need for the community safety order. The community is entitled to the assurance of peace and order which the community safety order is intended to provide. [ 45 ] There is another factor which requires consideration – the foreclosure proceeding.

Intervening foreclosure [ 46 ] As stated above, because the applications of the Director and Scotia Mortgage both concerned the Property, the two applications were heard on December 19, 2023. [ 47 ] Foreclosure proceedings are underway which may result in Scotia Mortgage taking title to the Property. The Owner has vacated the Property. Scotia Mortgage had secured the Property, but is not in possession of the Property.

If Scotia Mortgage were to take possession or title to the Property, it would be subject to any existing community safety order. [ 48 ] But if Scotia Mortgage took possession or title to the Property, then a community safety order should not likely be

needed. Scotia Mortgage would then be responsible for the Property and could be expected to have the ability to control the use of the Property. [ 49 ] Scotia Mortgage is seeking an order nisi for foreclosure with the standard 90 day redemption period. The Owner is opposed to foreclosure. She wishes to retain the Property. While I am not convinced that the Owner will be able to remedy the mortgage default, I have decided that the Owner is entitled to that opportunity, at least to the extent of the 90 day redemption period.

That being the case, foreclosure is not so imminent as to make the community safety order sought unnecessary. Conclusion [ 50 ] It was appropriate for the Director to bring this application. From the evidence, I am satisfied that the Property is being habitually used for drug activity and that activity has adversely affected the neighbourhood. [ 51 ] I gave serious consideration as to whether there continued to be a present need for a community safety order, given the changes in circumstance from: the Owner vacating the Property; the securing of the Property; and the foreclosure proceeding.

In the end, I am satisfied that the Director has shown a present need based upon continuing drug activity on or around the Property. I therefore grant the application. Order granted, but with condition of access [ 52 ] The draft order may issue, but with provision that the Director shall provide reasonable access upon prior request from Scotia Mortgage or the Owner. The requesting party should, in their request, give their reason for seeking access, when they wish to gain access and how long they would anticipate being on the Property. [ 53 ] Scotia Mortgage said it might wish to inspect the Property.

The Owner said she has personal property on the Property which she is in the process of removing. While I prefer to provide all parties with flexibility, I want to be clear that SCAN is not expected to provide immediate or frequent access to the Property. [ 54 ] I will remain seized should there be need for further direction, which may be requested on a without notice basis. Right to appeal [ 55 ] Because the Owner is self-represented, I draw to her attention the ability to appeal against this decision to the Court of Appeal on a question of law, pursuant to s. 24 of the Act . J. D.N. ROBERTSON