Justice Kevin Loo sealed three of six pieces of information contained in an affidavit as the City of Surrey and the provincial government face off in court over the city’s policing transition.
This came in response to a provincial government application made on the first day of the City of Surrey’s petition for a judicial review that’s aimed at quashing Public Safety Minister Mike Farnworth’s order to replace the RCMP with the Surrey Police Service.
The five-day hearing in B.C. Supreme Court in Vancouver began Monday morning (April 29).
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Loo granted sealing orders in respect 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.”
“If information of this kind is disclosed to persons intending to commit crimes, there is a serious risk that law enforcement objectives may be compromised,” he explained. “I find that the redactions proposed are necessary and the benefits of the redaction outweigh the prejudice to the Supreme Court openness.”
He refused to seal information concerning SPS facilities and equipment, including software and IT systems, human resource strategies for reducing vacancies, and consultation with Indigenous governing bodies.
Moreover, Loo also decided not to seal or redact a Surrey Police Union affidavit concerning allegations of harassment, bullying and public safety concerns involving the RCMP.
“Allegations, sometimes justified and sometimes spurious, are tendered every day in these courts, so are descriptions of criminal activity,” Loo noted. “In my view, there is value to those allegations and evidence being available to the public.”
The case began Monday with discussion concerning proposed redactions and sealing orders, with the provincial government’s lawyer seeking to seal part of the record and the City not seeking to seal anything. The City’s legal counsel opposed the order sought.
“It’s too much detail, in my submission, about police planning and operational matters to be made public really for no reason,” the Province’s lawyer, Trevor Bant, argued. “It doesn’t relate to anything that is at issue.”
Loo replied: “It may well be relevant to this petition.”
“It’s my responsibility to make sure that the court principle, or the principle of court openness, is impacted as little as possible by a sealing order,” the judge noted.
Lawyer Craig Dennis, representing the City of Surrey, told Loo that “the city is not seeking to seal or withhold any information in this proceeding, it’s the Province that seeks to do so.”
Concerning some information, he said, “let’s be clear what the Province is asking, Justice, what the Province is asking for in respect (to an exhibit) is not to seal it from the public, it’s to seal it from you, Justice.”
“They’re not going to give it to you, judge. They’re not going to give it to you what the minister had, they’re not going to give it to the petitioner, the party bringing the challenge.”
“All the City is saying is transparency. The court should have, and the parties should have, what the minister had,” Dennis said.
He said that in his “respectful submission it would be quite an unprecedented order, what the Province is asking you to make, to deny even your own ability to review something that the minister had without any evidence or basis to conclude what interest, but important public interest, would be vindicated in doing so.”
Surrey Mayor Brenda Locke announced in November that the city is challenging in court the “constitutionality” of the provincial government’s decision to replace the Surrey RCMP with the SPS.
On Oct. 13, 2023, the City of Surrey filed its first petition with the Supreme Court of British Columbia seeking a judicial review of Public Safety Minister Mike Farnworth’s July 19, 2023 order to proceed with the SPS. An amended petition to the Oct. 13 filing was then submitted to the court on Nov. 20, 2023, with Locke characterizing it as a “significant step to stop the NDP police service” and a reply to the provincial government’s “attempted police takeover, which would require a double-digit — double-digit — NDP tax hike on Surrey taxpayers.”
Last week saw sabre-rattling from both sides concerning this court case, with Farnworth maintaining it won’t have an impact on the transition.
“It is not about overturning the decision that was made, and we are confident in our position, and if it were to go the other way, it would bring it back to what is the law of the province today, and the law of the province today is Surrey will be policed by the Surrey Police Service,” he said.
For Locke’s part, she told the Now-Leader that “for the City of Surrey, we’re in court on the 29th, that’s where the truth will come out, and we’ll see what’s going to be next. I look forward to the truth being told to the public.”
On Monday (April 29), Dennis provided Loo with a written argument indicating Farnworth’s order will increase the annual cost for policing to Surrey taxpayers by “at least” $75 million (or 46 per cent) “without any funding to the City from the Province despite an initial decision to contribute $150 million that earlier this month the minister abruptly withdrew without justification and seemingly because the City’s coming to court.”
The City’s counsel argued that, contrary to a May 2023 agreement between the mayor and premier, “and repeated representation by the Province to Surrey and the public, aligned with the provisions of the Police Act that it was for the City to decide on its model for policing” and “without a plan for a transition away from the RCMP — Surrey’s police of jurisdiction today and for the past 70 years — could be carried out feasibly and safely with the minister to the contrary later telling Surrey, in effect, ‘you figure it out.’” Moreover, the City argues, Farnworth’s order was contrary to the “expressed mandate” from Surrey voters in the 2022 city election “where policing was the central issue and Surrey voted to keep the RCMP.”
Concerning the Charter question, Dennis told the judge in the case before him the provincial government “intervened and nullified the vote, nullified the mandate” in a state action “targeted to a specific municipality — not legislation and general application — targeted to the specific municipality with the express purpose of nullifying the electoral mandate.”
Province imposed transition on Surrey ‘in the absence of any plan’: City
The City argues that the Police Act gives the City, “not the minister, the authority to decide on keeping the RCMP” and “in any event, the minister’s decision was unreasonable in an administrative law sense” because he “fundamentally misunderstood the key documents that were before him, considered only half the equation that is by hiring 161 officers to re-staff the RCMP could be achieved without a risk to public safety without seriously considering whether hiring 600 — because that’s what would have been needed — 600 SPS officers could also have similar or more serious consequences,” and that Farnworth imposed the transition to the SPS on Surrey “in the absence of any plan to make that work.”
The City’s counsel noted that according to the Community Charter, principles governing relations between the provincial government and civic governments state that “the citizens of British Columbia are best served when in their relationship with municipalities and the provincial government they a) acknowledge and respect the jurisdiction of each, b) work towards harmonization of provincial and municipal enactment, policies and programs and c) foster cooperative approaches to matters of mutual interest.”
Further, Surrey’s counsel noted, Subsection 2, concerning the relationship between the municipalities and provincial government, is based on the following principles: A) The provincial government respects municipal authority and municipalities respect provincial authority, and B) The provincial government must not assign responsibilities to municipalities unless there is provision for resources required to fulfill those responsibilities.
Farnworth’s Surrey-specific legislative amendments, the judge heard, were introduced one business day after Surrey filed its petition with the court “and they are targeted at Surrey and they treat Surrey different from every other municipality in the province of British Columbia” and this, the City argued, interferes “with Surrey voters’ expression and are an unprecedented attempt to reverse the outcome of a municipal vote, in this case a vote that delivered a mandate for keeping the RCMP as Surrey’s police of jurisdiction.”
Dennis noted that Subparagraph G of the Community Charter states that the provincial government and municipalities should attempt to resolve conflicts between them by consultation, negotiation, facilitation and other forms of dispute resolution.
“The mayor and the premier, they lived up to Subparagraph G, and you’ll hear that they made an agreement in May of 2023 to find a way through this. The City lived up to its end of the bargain; the minister pulled the rug out from under it with his July decision.”
