Surrey vote results not `expressive,' lawyer suggests

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 on Thursday that the city's claim is contrary to established law.

Bant was speaking on the fourth day 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 arguing 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.”

Bant said the province's legislation did not prevent anyone from voting, “the expressive activity at issue.”