A lawyer for B.C.’s Public Safety Ministry says the City of Surrey is seeking a “radical expansion” of freedom-of-expression protections under Canada’s Charter in its legal dispute with the province over policing in the city.
The city says a provincial law change compelling it to switch to a municipal police force had the “express purpose” of nullifying the election mandate the city council received, and thus infringed on voters’ freedom of expression.
But Trevor Bant, a lawyer for the ministry, told a B.C. Supreme Court judge that the city’s claim is contrary to established law.
Bant was speaking on day four of the city’s legal challenge against the public safety minister’s order to continue the switch from the RCMP to the municipal force.
Earlier this week, Surrey’s lawyer Craig Dennis had told Justice Kevin Loo he wanted the court to apply the Charter’s freedom of expression section for the first time to an election mandate, calling it a “new set of circumstances.”
Bant told Loo that allowing the city’s argument would convert Canada’s system of representative democracy into “a direct democracy, in which voters have a very literal right to get what they vote for.”
“The legislation has not restricted anyone from expressing themselves,” Bant said of the provincial law requiring the transition to the municipal Surrey Police Service.
Surrey is claiming that the province overstepped its authority by ordering the transition to continue, after a prolonged public dispute over the future of policing in the city, and is seeking a judicial review.
In its petition, the city wants the court to declare that the province lacks “legal authority” to place responsibility for the transition on the city without providing adequate resources to facilitate it.
Applying the Charter to the result of a collective vote, rather than individual expression, Bant said, would be a “significant expansion.”
“Freedom of expression is not for the majority, it’s for the unpopular and persecuted,” Bant said.
He said voting itself was a protected “expressive activity,” but the results of a vote or a mandate given to an elected government are a “product” of that activity.
The city was wrongfully arguing that only people who voted for Mayor Brenda Locke, who campaigned on keeping the RCMP, “have a constitutional right to that outcome,” he said.
“The question is whether the election result, the election voting result, and specifically the voters’ mandate is protected expression,” he said. “The election results are not expressive. The expression has already happened. The election results are the result of that expression, the outcome of that expression.”
Bant said the province’s legislation did not prevent anyone from voting, “the expressive activity at issue.”
“It’s really very simple,” he said, adding that in every freedom-of-expression case “that has ever been decided in Canada, the expressive activity is an activity, some activity that conveys meaning.
“The result of an election is not an activity at all,” he said.
Earlier Thursday, Bant said the City of Surrey had been given a pathway to retain the RCMP as its police force, but “made no effort at all” to meet conditions to do so.
He told the court that the city’s plan to abandon the transition to the Surrey Police Service didn’t consider the risk of losing municipal officers who didn’t want to join the RCMP.
Bant said reports by both the province’s director of police services and Surrey city staff acknowledged that keeping the RCMP or transitioning to the municipal force were both feasible although “complex.”
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He told Loo that the RCMP had expected about half of Surrey Police Service officers to “patch over” and join the RCMP if the transition was halted, but the Surrey Police Union indicated up to 95 per cent of its officers wouldn’t join the RCMP after being terminated.
Bant said a report by Surrey city staff contained “candid concessions” about the risk of Surrey Police Service officers being released “en masse,” which would destabilize policing in the city and leave the RCMP detachment short-staffed and reliant on cadets with no policing experience.
He said the report was likely never meant to be seen by the public safety minister, and it acknowledges that transitioning to a municipal force was “feasible.”
This was not in line with the city’s claims in court that the transition was “somehow impossible,” he said, even though the provincial government has since withdrawn its offer of $150 million to the City of Surrey to move the transition along.
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