Surrey council’s mandate to keep the RCMP is not protected under the Charter of Rights and Freedoms, a lawyer representing the provincial government argued.
Lawyer Trevor Bant pressed the point in court May 2 that the “expressive activity” of voting is protected, but a mandate resulting from the vote is not.
Justice Kevin Loo is presiding over the City of Surrey’s judicial review petition aimed at quashing Public Safety Minister Mike Farnworth’s July 19, 2023 order that the RCMP must be replaced by the Surrey Police Service. The five-day hearing began April 29 in B.C. Supreme Court in Vancouver.
“The key point again being that the expressive activity of voting is protected by 2B, but the result or mandate resulting from the vote is not an expressive activity, is not protected,” Bant told Loo. “Individual rights, it doesn’t depend on the content of what’s being expressed, and those principles I say are fatal to the City’s position.”
Surrey Mayor Brenda Locke announced in November 2023 the City would challenge the “constitutionality” of Farnworth’s order.
Earlier in the week, lawyer Craig Dennis, representing the City of Surrey, argued that Surrey voters in the 2022 civic election delivered a mandate to keep the RCMP, “which is inextricable from the vote itself and the integrity of that electoral result, not the policy outcome, is what Surrey seeks to protect from provincial interference.”
“This is no small matter for municipal democracy,” Dennis told Loo, noting election results that fail to deliver results are bound to damage public confidence.
“Why vote if policies are not implemented?” he asked rhetorically. “Why run for office, why participate?”
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In reply, Bant on Thursday referenced a Supreme Court of Canada decision concerning provincial legislative authority over municipalities, “which of course were created by provincial legislatures and may be un-created at any time.”
Municipalities and civic bodies such as school boards don’t have independent constitutional status, he told the court, adding the Constitution Act assigns to provincial governments “absolute and unfettered legal power to do with them as it wills — very strong language there.”
Bant underlined a distinction between Canadian representative democracy versus the concept of direct democracy. In the latter, he noted, “candidates would be in a strict sense held to their promises. They would be required to do exactly what they promised to do. And that from a policy perspective, that’s actually quite problematic because people who campaign and are elected to office may have very good reason to change their mind once they assume office.”
The job of elected officials is to do what’s right, he said, “not necessarily what’s popular” or what they promised. “That’s how representative democracy is supposed to work.”
Bant cited a Supreme Court document stating that parliamentary government would be “paralyzed if the doctrine of legitimate expectations could be applied to prevent the government from introducing legislation in parliament. Such expectations might be created by statements during an election campaign. The business of government would be stalled while the applications of the doctrine and its effects were argued out in courts.”
