At the time this article was
written Ian Izard was Law Clerk of the Legislative Assembly of British Columbia
and President of the Canadian Association of Parliamentary Counsel
The patriation of the Constitution
of Canada and the adoption of the Charter of Rights in 1982 changed the
Canadian constitutional scene in a major way. The expansion of the role of
interpretation must be acknowledged but predicting its scope or what effects it
may have on the traditional views of parliamentary supremacy is difficult. The
Dixon case in British Columbia provides an interesting, if not conclusive, view
of how the courts and Parliament approach the question of electoral
distribution.
In British Columbia, as in other
jurisdictions, electoral representation has evolved with, but not necessarily
at the same pace as or in step with, population growth. The vast size of the
province, the pattern of valley settlements in the Interior and concentrated
growth in the Vancouver and Victoria areas must somehow be accommodated. Traditionally,
the urban areas argued for `one man-one vote' in choosing members for the
Assembly while the rural areas, with vastly greater geographical concerns,
desired a community of interest approach. In addition, British Columbia, for
many years, used two or three-member ridings as a method of allocating seats in
various urban and semi-urban areas.
Two events emerged which would have
a major effect on distribution. John Dixon, of the B. C. Civil Liberties Union,
commenced the judicial process by petitioning the British Columbia Supreme
Court, in 1985, to review the allocation of seats in the Legislature by
applying the Charter of Rights to the Constitution Act. His petition, in broad
terms, alleged that uneven distribution, whereby there were as many as 15 or 16
times more electors per member in one district than another, contravened the
principle of `one man-one vote', said to be guaranteed by various sections of
the Charter. Secondly, in 1986 the inquiry process began with the appointment
of The Honourable Judge Thomas K. Fisher, under the provisions of the Inquiry
Act. The appointing order-in-council provided in part ...
1.... to inquire into the
composition of those electoral districts that now return 2 members to the
Legislative Assembly and into the composition of the electoral districts that
are contiguous to those electoral districts that now return 2 members, and to
carry out the other duties hereinafter set out.
2. The commissioner shall conduct
his inquiries with a view to recommending the establishment of new electoral
districts, each returning one member to the Legislative Assembly, to replace
those that now return 2 members to the Legislative Assembly.
3. In recommending the
establishment of new electoral districts to replace those that now return 2
members, the commissioner shall, where he considers it desirable, also
recommend adjustments to the boundaries of contiguous electoral districts and
shall generally have regard to the following:
(a) the principle of the electoral quota,
that is to say, the quotient obtained by dividing the population of the
Province, as ascertained by the most recent population figures published by
Statistics Canada, pursuant to the Statistics Act (Canada), by the total number
of members of the Legislative Assembly;
(b) historical and regional claims
for representation;
(c) special geographic
considerations including the sparsity or density of population of various
regions, the accessibility to such regions or the size of shape thereof;
(d) special community interests of
the inhabitants of particular regions ...
Mr. Justice Fisher's initial
instructions, to consider the future of dual-member ridings, were subsequently
altered inter alia and Paragraph 1 reworded as follows:
by striking out everything after
"inquire into the composition of" and substituting "and make
recommendations respecting
(a) the appropriate number of
electoral districts, each returning one member, for the Legislative Assembly,
and
(b) the establishment, including
the boundaries, of electoral districts."
The Judicial Process
The Dixon case worked its way
through the British Columbia Supreme Court over a three-year period, being
resolved by three decisions. The first decision in 1986 by Chief Justice
McEachern1, on a preliminary point, determined that the Charter of
Rights does apply to the Constitution of a Province and that the courts have
the right to review and scrutinize it although the Judge took pains to point
out that the petition must be heard on its merits and that his decision did not
affect the recent provincial election or impose an obligation on the
Legislature.
The Dixon petition was heard on its
merits by Madam Justice McLachlin2 before her elevation to the
Supreme Court of Canada, this decision being handed down in the Spring of 1989.
The Judge considered the degree of
disparity between the number of voters per member, which ranged as high as 143%
above or 91% below the mean, and enunciated several principles which would
determine whether the Charter guarantee of "the right to vote" had
been violated. These principles may be summarized as follows:
The Charter, being a constitutional guarantee of rights, requires a
generous interpretation, avoiding what has been called the "austerity of
tabulated legalism" and accordingly, the "right to vote" meant
more than the bare right to place a ballot in a box.
The notion of equality is inherent in the Canadian concept of voting
rights.
The standard of equality (to be found in factors such as geography or
regional interests) is relative rather than absolute. The American
jurisprudence is not totally helpful as the Canadian experience of evolutionary
democracy, coupled with pragmatism, differs from the American birth in
revolution.
The Legislature is the appropriate body to determine the permissible
deviation from absolute equality and in doing so it must act in accordance with
the following principles: (1) Relative equality is required for representation
of the constituency through roles of legislation and Ombudsman. (2) Deviation
should only be admitted which can be justified on the grounds that it
contributes to the better government of the population as a whole, giving due
weight to regional issues within the populace and geographic factors within the
territory governed. Geographical considerations affecting the servicing of a
riding and regional interests meriting representation may fall in this category
and hence be justifiable.
In summary, an outside limit for
deviation from equal representation may be appropriate... but it is not alone
sufficient, particularly if it is relatively generous.
The Judge compared various ridings
and disparities such as the fact of the number of voters in Coquitlam- Moody
being 15 times as many as in Atlin. She determined that the Act did not comply
with section 3 of the Charter in that the system "enhanced the power of
the rural voter". She went on to consider whether the apparent conflict
could be justified under section l, saying:
...I am satisfied that the
objectives of ensuring that geographic and regional concerns are reflected in
electoral boundaries to the end of ensuring better government, are valid and
meet the "pressing and substantial" test laid down by the Supreme
Court of Canada. The question is whether the means adopted by the British
Columbia Legislature and Cabinet to attain these ends are proportional to the
goal.
In making this assessment, it is
clear that considerable leeway must be given to the Legislature and cabinet to
enact what appear to them to be reasonable measures to ensure that valid
geographic and regional considerations are taken into account in establishing
electoral boundaries in the interests of better government. As the Supreme
Court of Canada held in R. v. Edwards Books, (l986) 2 S.C.R. 713, 55
C.R. (3d) 193, the Court ought not to require that the scheme adopted by the
Legislature be shown to be the optimal scheme; leeway for different views and
the difficulties of precision in formulating and applying an appropriate rule
must be granted. In such matters, the Court should defer to the Legislature.
The process of adjusting for
factors other than population is not capable of precise mathematical
definition. People will necessarily disagree on how important a regional
grouping is to the boundary of this riding, on how significant problems of
serving constituents are to that electoral district. It is for the legislatures
to make decisions on these matters, and not for the courts to substitute their
views. Applying a test used in other areas of the law, I would suggest that the
courts ought not to interfere with the Legislature's electoral map under s.3 of
the Charter unless it appears that reasonable persons applying the appropriate
principles--equal voting power subject only to such limits as required for good
government--could not have set the electoral boundaries as they exist. In other
words, departure from the ideal of absolute equality may not constitute breach
of s.3 of the Charter so long as the departure can be objectively justified as
contributing to better government.
Other considerations may dictate
divergence from the standards required by s.3 of the Charter. For example,
electoral boundaries cannot practically be changed with every minor population
fluctuation. To this extent electoral laws which cannot be justified under s.3
may nevertheless be held constitutional under s.1 …
and determining that it could not.
Finally, the Judge determined that
any remedy must lie with the Legislature, recommended the adoption of the
Fisher Report and left open the question of timing to allow the Legislature to
act.
Subsequently another application
was brought before the Honourable Mr. Justice Meredith3 for an order
to terminate the stay of proceedings ordered by Judge McLachlin and for an
order declaring the Act void.
The Judge answered the request, in
part, as follows:
...To establish a deadline beyond
which the legislation will not be "in place" would be to require that
the majority of the members of the Legislative Assembly agree on a course of
action. I consider it quite beyond the inherent power of the Court to compel
agreement. In any case, to do so would be to effectively legislate. That must
also be beyond the remedial powers that are reposed in the Court.
So I conclude that the
establishment of a deadline would be in direct violation of the rights and
obligations of the members of the Legislative Assembly, would threaten the
violation of the right of the people of British Columbia to the existence of a
Legislative Assembly, and would threaten the violation of the right of citizens
of Canada to vote for members of a Legislative Assembly, to say nothing of
eradicating the right to vote, whether equal or not.
I think it must be left to the
Legislature to do what is right in its own time....
The Inquiry Process
After a series of hearings and
inquiries, Judge Fisher tabled a preliminary report which recommended inter
alia the abolition of multi-member ridings, an increase in the number of
members of the House from 69 to 75 and the setting of a formula to determine
acceptable levels of deviation in voting numbers. This report was referred to
the Special Committee On Electoral Boundaries and the final report was referred
to the Select Standing Committee on Labour, Justice and Intergovernmental Relations
with instructions to consider its contents and make a unanimous report. In July
of 1989, the Committee recommended to the Legislature that various features of
the Fisher Report be adopted and legislation was introduced and passed to
implement its provisions. The imminent adjournment of the House required a
mechanism to be created so that fine tuning could be achieved during the
adjournment and in the event that an election were called before the House next
met. A copy of the Act is attached and the reader may note the unique method
adopted to allow Cabinet to implement the Committee's findings without
deviating from them if the House was not then sitting.
It should be noted that the inquiry
process paralleled the judicial process and indeed that Madam Justice McLachlin
even went so far as to recommend the Fisher Report as the basis of a
legislative response.
The outcome of the Dixon case has
relevance to all legislatures in Canada. The decisions were not appealed
because the Legislature used its jurisdiction to pass remedial legislation and,
accordingly, they may not have the ultimate force of an appellate decision.
It is readily apparent that the
courts will review electoral legislation, and Provincial constitutions, to
determine whether they comply with the Charter. The courts will espouse broad
guidelines and will examine local circumstances to determine compliance but
will not "legislate" a result.
It would appear that by
acknowledging the position and jurisdiction of the Legislature, the courts will
respect the legislative role of Parliament but once legislation has been passed
it is then subject to review. Madam Justice McLachlin pointed out that in a
cross-country comparison British Columbia ranked fourth among the provinces in
deviation from a standard of strict equality.
Notes
1. Dixon v. Attorney General of
British Columbia (1986) 7 C.C.L.R. (2d) p.174.
2. Ibid., p. 273
3. Ibid., p. 231.