At the time this article was
written Harvey Pasis was Associate Professor in the Faculty of Administrative
Studies at Athabasca University in Alberta.
For many years American courts have
ruled that they lacked the jurisdiction to alter the reapportionment (called
redistribution in Canada) of electoral districts or constituencies.1
In 1962 the Supreme Court of the United States reversed its decision
after a group of voters in Tennessee challenged the reapportionment that
established wide disparities in population between urban and rural ridings for
the state legislature. The court2 ruled that the equal
protection of the laws principle found in the fourteenth amendment to the
Constitution gave the judiciary the authority to intervene so that democratic
politics was effective. Two years later, the Supreme Court decided that the
fundamental principle of representative government was equal representation for
an equal number of people in congressional districts since legislators
represented people not farms, cities, or economic interests.3 The
same principle was also supported for state legislatures.4
In Canada, the voter had no legal
basis to challenge the redistribution of federal and provincial electoral
boundaries until section 15(1) of the Canadian Charter of Rights and Freedoms,
that states "Every individual... has the right to the equal protection and
equal benefit of the law...", came into force recently. This Canadian
clause about "the equal protection of the law" is similar to the
"equal protection of the laws" clause found in the United States'
constitution. The Charter has been used in British Columbia to challenge the
redistribution of provincial ridings that had 15 or 16 times more electors in
some ridings than others. The British Columbia Supreme Court ruled that section
32(1) (b) of the Charter means the Charter applies to the legislature and
government of each province for all matters within the authority of the
legislature.5 A ruling about the applicability of other
sections of the Charter, including section 15(1), to the redistribution of
seats in British Columbia is expected in 1988. This case is important because a
provincial court has decided that the judiciary has the authority to intervene
in the redistribution process without indicating how it will do this until
1988. The Charter will probably apply also to the redistribution of federal
electoral boundaries, because section 32 (1) (a) indicates that the Charter
applies to the Parliament and government of Canada in respect of all matters
within the authority of Parliament. Therefore, in the future some Canadian
court will likely have to determine how equal or unequal the size of federal
and provincial electoral ridings are and if the United States' principle of
equal representation for an equal number of people is to be followed in Canada.
Fortunately, a measure called the
Gini index exists to aid any court. The Gini index is a statistical measure
used in the social sciences to show the level of inequality in the distribution
of wealth, income, productivity, goods, social mobility and political equality.
It has been applied to assessing redistributions and has been shown to be a
better measure of inequality than the equal-share coefficient, the Schutz
coefficient, the minimal-majority measure and the per cent of goods held by the
most favoured 1 per cent of value holders.6 The Gini
scale ranges between 0, which is complete equality, and 1, which is complete
inequality. For example, complete equality (0) would occur when all the ridings
in British Columbia had the same population and complete inequality would occur
when one riding had all the population and other ridings had no people in them.
The following table indicates the
Gini index based upon recommendations of the federal electoral boundaries
commissions for each province.
Proposed to Parliament
The lowest index indicates that the
redistribution is approaching representation by population or an equal number of
people in each riding. Since the Federal Electoral Boundaries Commission must
follow specific rules in drawing boundaries, one should not expect the index to
The table demonstrates that
Saskatchewan had the lowest index at .011 and Newfoundland had the highest at
.167. By comparing the Gini indices, one could contend that the proposed
federal redistribution for all provinces except Saskatchewan violate section
15(1) of the Charter of Rights and Freedoms.7
The courts could accept a higher
value of the Gini index than the values shown for Saskatchewan but it seems
likely that half of the federal redistributions could violate the Charter, if
"the equal protection of the law" clause is to have any meaning in
Canada. Thus a Canadian court could order the federal redistributions to be
done again, even if they were eventually passed by Parliament.
In summary, then, section 15(1) of
the Charter of Rights and Freedoms has complicated federal and provincial
redistributions in Canada, especially if a Canadian court agrees with the
interpretation of the Supreme Court of the United States. Assuming that the
Dixon case is not going to resolve all the issues, especially the applicability
of the Gini index one solution is to have a reference case clarify this situation
so that members of electoral boundaries commissions at the federal and
provincial levels of government would know how to interpret the Canadian
Charter of Rights and Freedoms.
1. Colgrove v. Green 328
U.S., 549 (1946).
2. Baker v. Carr 369 U.S. 186
3. Wesberry v. Sanders 376
U.S. 1 (1964).
4. Reynolds v. Sims 377 U.S.
5. Re Dixon and Attorney General
of British Columbia(1986), 31 D.L.R. (4th) 546.
6. For a statistical explanation
about the Gini index, see H. Alker, Jr. and B. Russett, "On Measuring
Inequality," Behavioral Science, 9(1964) pp. 207-218; David C.
Leege and W. Francis, Political Research: Design, Measurement and Analysis,
New York: Basic Books Inc., 1974, pp. 274-278; and Harvey Pasis, "The
Inequality of Distribution in the Canadian Provincial Assemblies," Canadian
Journal of Political Science, v (1972) pp. 433-436.
7. Although the data are not
presented here, my preliminary findings indicate that all provincial
redistributions have higher Gini indices than those at the federal level. Thus,
courts may rule all provincial redistributions violate the Charter.