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Judge reserves decision in Surrey’s policing transition judicial review

‘I am aware of the urgency of the matter,’ Justice Kevin Loo said
A B.C. Supreme Court judge has promised a decision ‘as quickly as reasonably possible’ after hearing five days of submissions in the City of Surrey’s dispute with the provincial government over its policing transition. (Photo: Black Press Media)

A B.C. Supreme Court judge has reserved his decision on 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.

Justice Kevin Loo did this after hearing final submissions May 3, concluding a five-day hearing that began April 29 in Vancouver.

“I am aware of the urgency of the matter,” Loo said. “I’ll make no specific promises except to say that I will do my best to get you a decision as quickly as reasonably possible. In conclusion I’ll just say that the excellence of counsel this week is not surprising, but I’m grateful for it nonetheless, and I’m thankful for your thoughtful, very considered and eloquent submissions.”

During final submissions, Craig Dennis, the lawyer representing the City of Surrey, said the “end result” was that Farnworth imposed the SPS on Surrey “with nobody, nobody” having done a comprehensive assessment of the impacts.

“In my submission, this is too large an undertaking to impose without those impacts having been assessed,” Dennis told Loo.

Dennis said the provincial government’s position involved a “recasting” of the City’s arguments. “It shifts the terms of reference away from what the City’s actually argued. Again, respectfully, in doing so it hasn’t grappled with the crux of the positions,” Dennis said.

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Trevor Bant, representing the provincial government, argued that concerning any meeting between Surrey Mayor Brenda Locke and Premier David Eby regarding the policing transition, “there’s no suggestion here in the evidence that there was any agreement about the substance of the decision the minister was going to make.” At any rate, he added, nothing discussed between the premier and mayor “could fetter the minister’s discretion.”

“The statutory power of decision was the minister’s and the administrative law required him to exercise, to make that decision independently. It would not be lawful for the minister to implement the decision that had been made by someone else in government and communicated to him.”

“I say that the minister’s decision is reasonable and the City has not shown that it is unreasonable,” Bant said. “The fact that all of the details weren’t yet worked out for Phase 2, that doesn’t make the decision unreasonable.”

Bant told Loo that while the minister is “appropriately sensitive” to costs, ultimately his statutory responsibility is to ensure “an adequate and effective level of policing is maintained throughout British Columbia.

“He’s fundamentally focused on public safety, and after he reached the conclusion that the plan was not safe, that was really the end of the analysis, for him,” he said. “I don’t understand the City to take the position that cost is a sufficient reason to set aside the decision. That is, I don’t understand the City to be saying even if the minister was right, that the plan was dangerous, still he should have approved it because of cost. Rather I take the City to be saying that the additional cost is not justified by any public safety benefit.”

Bant argued that the $75-million difference per year between the cost of the SPS versus the RCMP is based on an “apples to oranges” comparison of 734 Mounties compared to 900 SPS officers.

“That’s not a like-to-like comparison,” he said, nor does it take into account severance obligations at $113.3 million for SPS officers and management, according to the City’s estimate.

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Meantime, Dennis turned to Bant’s argument that the statutory authority Farnworth possessed was the power “merely to approve, or not, the City’s plan to keep the RCMP.

“Even if that were so, that’s not the decision the minister made, and it is not therefore the statutory authority the respondents have defined,” Dennis maintained. “The minister did not merely disapprove the City’s plan, which would entail presumably sending the City back to the drawing board. Instead, the minister purported to order that the SPS be the method of policing in Surrey.”

“And as I listened to my friend,” Dennis said, referring to Bant, “I did not hear an attempt to argue the minister had that power.

“My friend, however, in his submissions was at pains to describe a different, lesser power — all the minister could consider was public safety and all he could do was approve the City’s plan, or not,” Dennis continued. “If my friend is right about that, and even on my friend’s terms, the minister exceeded his jurisdiction because he did much more than simply approve or not the City’s plan.”

Dennis said Surrey has never claimed or implied that a policy is entitled to charter protection but rather sought for protection of the integrity of the civic election, “in which Surrey voters, having been given a choice over policing, exercised that choice through voting, saw their representatives seek to implement that choice, and then saw the Province nullify that choice through legislation.”

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Dennis argued that Farnworth only has the powers “conferred to him by the statute; he cannot exercise powers beyond what the legislation conferred.”

Last week, Loo sealed information related to SPS operation plans and policies concerning covert and undercover operations, precise RCMP/SPS staffing levels and RCMP contingency plans, finding “an important public interest at stake.”

The judge heard about a deal reached between Locke and Eby, contained in an affidavit from a political advisor and note-taker for the mayor, before Farnworth “reneged” on it. Bant argued it’s“irrelevant” whether they struck a deal on the city’s policing transition before Farnworth issued his edict July 19, 2023.

Dennis argued Farnworth’s order to press on with SPS is akin to replacing the “winner with the runner-up” by overriding Surrey council’s desire under Locke to keep the RCMP and enforcing the previous council’s desire, under former mayor Doug McCallum, to install the SPS as the city’s police of jurisdiction.

Bant argued that Surrey council’s mandate to keep the RCMP is not protected under the Charter of Rights and Freedoms, and the City understood Farnworth had the power to make a decision on the future of policing in Surrey but only objected when it didn’t get its way.

About the Author: Tom Zytaruk

I write unvarnished opinion columns and unbiased news reports for the Surrey Now-Leader.
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