Surrey council鈥檚 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 鈥渆xpressive activity鈥� of voting is protected, but a mandate resulting from the vote is not.

Justice Kevin Loo is presiding over the City of Surrey鈥檚 judicial review petition aimed at quashing Public Safety Minister Mike Farnworth鈥檚 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.

鈥淭he 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,鈥� Bant told Loo. 鈥淚ndividual rights, it doesn鈥檛 depend on the content of what鈥檚 being expressed, and those principles I say are fatal to the City鈥檚 position.鈥�

Surrey Mayor Brenda Locke announced in November 2023 the City would challenge the 鈥渃onstitutionality鈥� of Farnworth鈥檚 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, 鈥渨hich 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.鈥�

鈥淭his is no small matter for municipal democracy,鈥� Dennis told Loo, noting election results that fail to deliver results are bound to damage public confidence.

鈥淲hy vote if policies are not implemented?鈥� he asked rhetorically. 鈥淲hy run for office, why participate?鈥�

In reply, Bant on Thursday referenced a Supreme Court of Canada decision concerning provincial legislative authority over municipalities, 鈥渨hich of course were created by provincial legislatures and may be un-created at any time.鈥�

Municipalities and civic bodies such as school boards don鈥檛 have independent constitutional status, he told the court, adding the Constitution Act assigns to provincial governments 鈥渁bsolute and unfettered legal power to do with them as it wills 鈥� very strong language there.鈥�

Bant underlined a distinction between Canadian representative democracy versus the concept of direct democracy. In the latter, he noted, 鈥渃andidates 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鈥檚 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.鈥�

The job of elected officials is to do what鈥檚 right, he said, 鈥渘ot necessarily what鈥檚 popular鈥� or what they promised. 鈥淭hat鈥檚 how representative democracy is supposed to work.鈥�

Bant cited a Supreme Court document stating that parliamentary government would be 鈥減aralyzed 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.鈥�