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Judge orders Surrey to rewrite its sign bylaw following constitutional challenge

Justice Nigel Kent revealed his decision Thursday in B.C. Supreme Court in Vancouver
A “Keep the RCMP in Surrey” sign. Walter van Halst writes, “From White Rock to Whalley and from Scott Road to Langley Bypass, there are now more signs demanding to save the RCMP than all parties combined had in the last B.C. election.” (Photo: Walter van Halst)

A B.C. Supreme Court judge has ordered the City of Surrey to rewrite its contentious political signage bylaw after a group of Surrey residents challenged its constitutionality.

Justice Nigel Kent revealed his decision Thursday.

Kent concluded that 2021 amendments “give rise to an ambiguity in the bylaw that arguably prohibits the posting of political signage on private property except during limited specified periods of time, and that such a restriction would infringe s. 2(b) of the Charter which guarantees the petitioners’ constitutional protection for freedom of, among other things, their political expression.”

Kent found that the ambiguity arises from the amended bylaw definition of a political sign now extending past city, provincial or federal elections “to also include political ‘issues’ generally,” with the result of capturing signage related to such things as “Keep the RCMP in Surrey”, “Save the Whales”, “Stop Logging Old Growth Forests”, “Get Vaccinated” and the like.

READ ALSO: Lawyer says ‘nothing normal’ about City of Surrey’s ‘suppression of political dissent’

READ ALSO: Judge hears Surrey political sign bylaw staff-driven, not by ‘animus,’ council or mayor

“I deny the substantive relief that the petitioners seek,” he said. “However, I agree that the amendments were poorly drafted and that clarity of ambiguity is required. Accordingly, I grant interim relief and direct Surrey city council to further amend the Surrey Sign Bylaw to clarify its intended effect and to eliminate the said ambiguity.”

Surrey residents who challenged the constitutionality of city bylaw amendments governing the placement of political signs on private property had been awaiting a verdict since May. They sought a declaration from Kent that the amendments were inconsistent with the Canadian Charter of Rights and Freedoms and that they be declared of no legal force or effect or be quashed altogether.

The petition was launched by Surrey residents Annie Kaps, Debra (Debi) Johnstone, Colin Pronger, Ivan Scott, Merle Scott and Linda Ypenburg, all members of Keep the RCMP in Surrey. The amended bylaw resulted in them removing related signage from their properties but their petition to the court states they challenged the amendments to the sign bylaw “not for personal reasons, but in an effort to protect political speech and expression in the City.”

Lawyer Kevin Smith, representing the residents, argued at trial in Vancouver that the bylaw as amended on Oct. 18, 2021 presented an unconstitutional infringement on their freedom of expression under Canada’s Charter of Rights and Freedoms.

READ ALSO: Surrey’s political sign bylaw being challenged in court Tuesday

READ ALSO: Surrey’s political sign bylaw condemned as anti-democratic

“Keep the RCMP in Surrey welcomes today’s decision by Justice Kent ordering the city to amend its Sign Bylaw,” Smith told the Now-Leader after the decision was revealed. “The judge agreed with the petitioners’ interpretation of the bylaw, confirmed that the bylaw currently bans Keep the RCMP in Surrey signs – and many other arguably “political” signs – and found that to violate the petitioners’ Charter rights to freedom of expression.

Smith added that the petitioners “feel vindicated” by Kent’s comment that “certain members of Surrey city council have directly targeted them, and the judge’s criticism of the previous resolution banning them from attending council meetings and the lawsuit filed by Surrey against them which started this process.

“Keep the RCMP in Surrey believes that no one is above the law,” Smith continued. “The right to criticize government is a fundamental Canadian freedom, and Keep the RCMP in Surrey celebrates today’s decision as a vindication of that principle.”

During the trial, Smith argued that “this is not just political disagreement.

“This isn’t a couple of political adversaries going at it in the normal cut-and-thrust,” he told Kent.

“All they’re trying to do is make it harder for my clients to participate or to voice their views at all,” he said of Mayor Doug McCallum and “his council supporters.”

“There’s nothing normal about that. This suppression of political dissent by the government is exactly what the Charter is supposed to help prevent.”

Matthew Voell, the lawyer representing the City of Surrey, argued at trial that the contentious bylaw amendments were driven by city staff recommendations, and “not driven by animus, by council, by the mayor.”

“There was no improper purpose there,” Voell argued. “The petition should be dismissed.”

He declined to comment Thursday on Kent’s judgment.

“I’ll pass on making a comment, thank you,” Voell told the Now-Leader.

Kent noted in his reasons for judgment that “these particular petitioners have been directly targeted by certain members of Surrey city council for special treatment; they were the subject matter of a (quickly and appropriately rescinded) bylaw prohibiting their attendance at council meetings and an injunction lawsuit seeking to enforce that bylaw. Their organization (KTRIS) has even been accused, wrongly it appears, of inflicting physical injury on the mayor.”

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About the Author: Tom Zytaruk

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