A B.C. Supreme Court judge has reserved his decision on 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.
Justice Kevin Loo did this after hearing final submissions May 3, concluding a five-day hearing that began April 29 in Vancouver.
鈥淚 am aware of the urgency of the matter,鈥� Loo said. 鈥淚鈥檒l 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鈥檒l just say that the excellence of counsel this week is not surprising, but I鈥檓 grateful for it nonetheless, and I鈥檓 thankful for your thoughtful, very considered and eloquent submissions.鈥�
During final submissions, Craig Dennis, the lawyer representing the City of Surrey, said the 鈥渆nd result鈥� was that Farnworth imposed the SPS on Surrey 鈥渨ith nobody, nobody鈥� having done a comprehensive assessment of the impacts.
鈥淚n my submission, this is too large an undertaking to impose without those impacts having been assessed,鈥� Dennis told Loo.
Dennis said the provincial government鈥檚 position involved a 鈥渞ecasting鈥� of the City鈥檚 arguments. 鈥淚t shifts the terms of reference away from what the City鈥檚 actually argued. Again, respectfully, in doing so it hasn鈥檛 grappled with the crux of the positions,鈥� Dennis said.
Trevor Bant, representing the provincial government, argued that concerning any meeting between Surrey Mayor Brenda Locke and Premier David Eby regarding the policing transition, 鈥渢here鈥檚 no suggestion here in the evidence that there was any agreement about the substance of the decision the minister was going to make.鈥� At any rate, he added, nothing discussed between the premier and mayor 鈥渃ould fetter the minister鈥檚 discretion.鈥�
鈥淭he statutory power of decision was the minister鈥檚 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.鈥�
鈥淚 say that the minister鈥檚 decision is reasonable and the City has not shown that it is unreasonable,鈥� Bant said. 鈥淭he fact that all of the details weren鈥檛 yet worked out for Phase 2, that doesn鈥檛 make the decision unreasonable.鈥�
Bant told Loo that while the minister is 鈥渁ppropriately sensitive鈥� to costs, ultimately his statutory responsibility is to ensure 鈥渁n adequate and effective level of policing is maintained throughout British Columbia.
鈥淗e鈥檚 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,鈥� he said. 鈥淚 don鈥檛 understand the City to take the position that cost is a sufficient reason to set aside the decision. That is, I don鈥檛 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.鈥�
Bant argued that the $75-million difference per year between the cost of the SPS versus the RCMP is based on an 鈥渁pples to oranges鈥� comparison of 734 Mounties compared to 900 SPS officers.
鈥淭hat鈥檚 not a like-to-like comparison,鈥� he said, nor does it take into account severance obligations at $113.3 million for SPS officers and management, according to the City鈥檚 estimate.
Meantime, Dennis turned to Bant鈥檚 argument that the statutory authority Farnworth possessed was the power 鈥渕erely to approve, or not, the City鈥檚 plan to keep the RCMP.
鈥淓ven if that were so, that鈥檚 not the decision the minister made, and it is not therefore the statutory authority the respondents have defined,鈥� Dennis maintained. 鈥淭he minister did not merely disapprove the City鈥檚 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.鈥�
鈥淎nd as I listened to my friend,鈥� Dennis said, referring to Bant, 鈥淚 did not hear an attempt to argue the minister had that power.
鈥淢y friend, however, in his submissions was at pains to describe a different, lesser power 鈥� all the minister could consider was public safety and all he could do was approve the City鈥檚 plan, or not,鈥� Dennis continued. 鈥淚f my friend is right about that, and even on my friend鈥檚 terms, the minister exceeded his jurisdiction because he did much more than simply approve or not the City鈥檚 plan.鈥�
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, 鈥渋n 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.鈥�
Dennis argued that Farnworth only has the powers 鈥渃onferred to him by the statute; he cannot exercise powers beyond what the legislation conferred.鈥�
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 鈥渁n important public interest at stake.鈥�
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 鈥渞eneged鈥� on it. Bant argued it鈥檚鈥渋rrelevant鈥� whether they struck a deal on the city鈥檚 policing transition before Farnworth issued his edict July 19, 2023.
Dennis argued Farnworth鈥檚 order to press on with SPS is akin to replacing the 鈥渨inner with the runner-up鈥� by overriding Surrey council鈥檚 desire under Locke to keep the RCMP and enforcing the previous council鈥檚 desire, under former mayor Doug McCallum, to install the SPS as the city鈥檚 police of jurisdiction.
Bant argued that Surrey council鈥檚 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鈥檛 get its way.
