Enhancing the Values of Redistribution
Chapter 3 – Broadening Public Participation
Public participation is an essential element of redistribution. An electoral boundaries commission is made up of only three members. So small a group cannot possibly have knowledge of the full geographic and demographic diversity of an entire province. In order to draw boundaries that effectively represent the population, commissioners must rely in large part upon the submissions of those most likely to possess the salient information. Boundaries that are drawn with the participation of the public also enjoy greater democratic legitimacy in the eyes of the public.
To secure the maximum amount of information from the public, the Act requires commissions to publish their initial proposals in at least one newspaper of general circulation in a province, and to hold at least one public hearing. In practice, the commissions, with the assistance of Elections Canada, have published many advertisements in newspapers throughout the provinces, and have held multiple public hearings, going far beyond the statutory minimum.
There is, nonetheless, a widespread belief that public participation in redistribution could be increased and improved. All of those involved in the process, from commissioners, to members of Parliament, to the public, have expressed the wish to see the current process for public consultation expanded and updated to reflect the improved communication technology of today.
This chapter proposes a number of recommendations to increase and improve public participation. The chapter's guiding principle is that the public's awareness of the process and its capacity to comment on the proposals of commissions should be increased, without preventing the commissions from concluding their work in a timely manner. The balancing inherent in this principle is achieved by recognizing that improvements in communication technology in the 40 years since the Act came into force should permit shorter time frames in the law. The time freed up by these changes may be used instead to gather additional public input at all stages of redistribution. In addition, if the recommendation in section 1.2 respecting the earlier creation of the commissions is brought into effect, commissions will have a great deal more time in which to engage the public.
Section 18 of the Act should be amended to state expressly that commissions may accept and consider written submissions.
In any public notice where the commission publishes information concerning the opportunities to make oral submissions, the commission shall also set out the means by which written submissions may be made and the time periods for doing so.
The Act specifically provides for public hearings in section 19, but nowhere does it mention the possibility of written submissions being made to the commissions. A commission has broad powers under section 18 to "make rules for regulating its proceedings and for the conduct of its business"; however, many commissioners expressed uncertainty during the last redistribution exercise concerning their power to receive written submissions from the public.
Electoral boundaries commissions perform their role by gathering and weighing information. As noted above, the broad participation of the public is necessary for the success of the redistribution exercise. Written submissions from the public can be an important tool to assist the commissions in carrying out their mandate.
Allowing written submissions enhances the ability of members of the public to make their views known. Individual Canadians may not be able to attend the public hearings, or may not be comfortable expressing their opinions orally in public. Allowing them to write to the commissions will facilitate their participation in the process.
The growth of the Internet and e-mail should also increase the ease and speed with which written submissions may be made to commissioners.
For all of these reasons and to remove any real or perceived uncertainty respecting the issue, section 18 of the Act should be amended to state expressly that commissioners may accept and consider written submissions, and should require the commissions to publicize the time period in which written submissions will be accepted.
Section 14 should be amended to provide that upon being established, commissions should be required to inform the public of the upcoming redistribution exercise, setting out the process and timelines and asking for written submissions to be considered before the formation of their initial proposals.
The first contact that a commission has with the public, as envisioned by the Act, is through the publication of the commission's initial proposal for dividing the province into new electoral districts. This proposal is circulated to the public through newspapers, along with the dates and times of the commission's public hearings.
The existing process provides the public with a basis for their comments. However, it has the disadvantage that the commissioners must draw up a comprehensive initial proposal without the benefit of public input. In addition, members of the public may misunderstand and believe that they are being presented with a fait accompli, and may therefore believe that their participation in the process would be futile.
The solution to these problems is to inform the public at an earlier date that the redistribution process is pending. This would allow the public to begin thinking about the process before the commission has made its initial proposal.
Commissions could receive valuable suggestions concerning the division of the province into electoral districts, even before the census return is received. Canadians may wish to comment on the acceptability of existing electoral districts, or inform the commissions of the existence of a community of interest. This information is only part of what is needed to draw an electoral map. A commission cannot proceed far without the necessary population information from the census, but valuable information could nonetheless be obtained from the earlier participation of the public. The information that can be collected before the initial proposal may also have a unique value in that, unlike information received from the public later in the process, it will not be reactive to a particular proposal.
If the recommendation in section 1.2 is accepted, commissions will be created prior to a census return being received. This will allow commissions to begin informing the public of the upcoming redistribution exercise and asking for written submissions to consider for the initial proposal. This would both alert the public and the media to the impending process and allow the commissioners to base their initial proposal on some public input.
Subsection 19(2) of the Act should be amended so that it no longer specifies that an advertisement of the commission's initial proposal shall be placed in a newspaper. A commission should be required to disseminate, in the means it thinks are most appropriate to achieve the broadest dissemination of the information therein, the initial proposal as well as the methods by which members of the public may make submissions to the commission. The commission shall also make clear in its proposal how members of the public can obtain a free copy of the proposed map along with the names and populations of the proposed districts.
Section 19 of the Act provides that a commission is required to publish a notice setting out its initial proposal, including a map or drawing, the populations and names of the proposed districts. The notice is to be published in at least one newspaper of general circulation in the province at least 60 days before the commencement of the commission's public hearings.
This section represents a minimum obligation on commissions, but it is one that does not reflect the communications revolution that has occurred since the Act was initially passed in 1964. Today the Internet allows millions of Canadians to access information that previously could only be made available in paper format. Fax machines and e-mail allow information that would previously have taken days to send to be transmitted within a matter of seconds.
During the recent redistribution, commissions did not limit themselves to advertising in a single newspaper of general circulation, or to a single advertising format. Instead, advertisements conforming to the requirements of section 19 were placed in several newspapers around the various provinces. Other smaller advertisements were placed in most newspapers to inform residents where they could obtain more information concerning redistribution, including the Elections Canada Web site.
The Standing Committee reported that, "from testimony and Members' experiences," flyer inserts in newspapers were far less effective than hoped, while the Elections Canada Web site exceeded expectations as a tool to inform the public. Given that the flyers are required by section 19 to contain a map of all of the proposed electoral districts, such advertisements are an expensive way to make the proposal known, especially in the larger provinces.
Instead of obliging the commissions to use a particular method to inform the public of their initial proposals, the Act should be more flexible so that commissions can use the most effective means available to disseminate information concerning the initial proposal, and the dates and times of hearings and other means of making submissions. This may include newspaper supplements, but by making section 19 more flexible, and focusing on the goal of informing the public through the best available means, the Act will allow commissions to spend advertising dollars more effectively.
A provision should be added to the Act stating that a commission shall endeavour to communicate with groups representing citizens' interests in the province regarding its initial proposal and the methods for making representations to the commission.
Many of those who make representations before electoral boundaries commissions are representatives of community groups. This is logical since a major focus of the Act is community representation.
Given the importance that the Act places on the identification of and respect for communities, it is appropriate that the commissions should seek to identify community groups with whom information about the process can be shared as early as possible. The information provided could include assistance in making representations to the commissions.
Subsection 19(5) should be amended to provide that a commission may waive any of the elements of the notice required under that provision, including the requirement of notice itself, at any time the commission feels it is in the public interest to do so.
Subsection 19(5) of the Act requires a person who wishes to make a representation at a commission hearing to give written notice of his or her intent to appear within 53 days after the day of the publication of the last advertisement setting out the commission's proposal. The notice must include the person's name and address, and indicate the nature of the representation to be made and the interest of the person.
Due to this legislative requirement, commissions cannot hear representations from persons who simply show up at hearings without having provided the required written notice. The Standing Committee recommended eliminating the requirement for such notice.
Although it may be tempting to eliminate it altogether, the notice requirement plays an important, practical role. The notices from the public allow commissions to have an idea of how many people will attend their hearings, and therefore whether the time allotted and the size of room rented are sufficient. In addition, by knowing beforehand the nature of the submissions to be made, a commission can develop a logical schedule, for example, by grouping together presentations related to the same issue or district. In these ways, the notice requirement allows hearings to proceed smoothly.
Although the notice requirement plays a valuable role in bringing order to the proceedings and facilitating the commission's work, it is undesirable to have a rigid rule that prevents a commission from hearing a presentation, when doing so would not unduly inconvenience those involved.
To maximize its benefits and minimize its drawbacks, it is recommended that the notice requirement remain, but that a commission be expressly given the power to waive any or all of the elements of the notice if it feels that it is in the public interest to do so. This will allow commissions to retain the administrative and substantive benefits that flow from notice, and allow them to waive the notice in order to hear additional submissions if time permits.
Following its hearings, the committee of the House reviewing the commission reports should produce a summary of the objections to the commission's report, if any, and refer it back to the commission through the Chief Electoral Officer. The public should have up to 30 days from the date the committee's report is made public to comment on the report of the commission and the committee's objections. The commission should have a further 30 days to dispose of the objections, taking into account any public comments.
Where the committee has received no objections to the commission's report, the public should have 30 days from the end of the objection period to comment on the commission's report, and the commission should have a further 30 days to prepare its final report, taking into account any public comments.
In addition to improving public participation within the framework of the present Act, suggestions have been made to increase the statutorily mandated opportunities for the public to participate. The Standing Committee recommended that a second round of public consultations should be added where a commission makes a change between its initial proposal and its report. The Standing Committee felt that a second round would reduce the number of substantive or poorly received changes in the report.
A second round of public hearings would also have the advantage of encouraging those who did not originally make a representation to the commission because they favoured the first proposal, to inform the commission of their views where the commission has subsequently adjusted that proposal. A second round of hearings would prevent such people being taken by surprise by an unexpected change, and may be more likely to elicit their participation.
As noted at the beginning of this chapter, the goal of improving public input must be balanced with the need for commissions to complete their tasks in a timely manner. Indeed, in making its proposal for a second round of public hearings, the Standing Committee acknowledged the concern that additional public participation must not be allowed to drag out intractable disputes without any movement or resolution.
A second round of public hearings immediately following the first round will likely lead to duplication. Those who are disappointed with the commission's failure to follow their recommendations made in the first round may simply return to make the same recommendations in a second round. Individuals should not be prevented from making written comments, or raising concerns with their members of Parliament, following an initial round of public hearings. However, a second round of public hearings scheduled immediately after the first is not likely to add sufficient value to the final report, or to the legitimacy of that report, as to justify its cost to the process in terms of the time taken. Therefore, in order to ensure that the greatest value is obtained from a second round of public comment, it should be differentiated as much as possible from the first round.
At present, the public may contribute at any stage of the process except that following the objections by members of the House of Commons. The Act calls for a commission to make a final determination of the boundaries based upon its disposition of parliamentary objections. This disposition must be completed within 30 days of the report of the committee of the House of Commons relating to the objections being referred to the Chief Electoral Officer.
Commissions would benefit from receiving public input concerning the objections of members of the House of Commons. This would assist the commissions in determining the community support for a particular objection. Rather than adding a potentially redundant second round of public hearings immediately after the first round, the Act should be amended to allow the public to comment following the production of the commission's report and the objections made to that report by members of the House of Commons.
Once the objections have been sent to the commission, the public should be given 30 days to submit written comments either on the commission's report or the objections of Parliament. In order to facilitate public input, the commission would be required to post public notice in the manner and form it feels appropriate, notifying the public of the receipt of the objections report. The commissions should then have a further 30 days to finalize the map by disposing of the objections of members of the House of Commons and taking into account public comments. If there are no parliamentary objections to the commission's report, the public should have a final opportunity to comment on the report.
A provision should be added to the Act to provide the Chief Electoral Officer with the express authority to implement public education and information programs to make the electoral boundaries readjustment process better known to the public.
In addition to efforts initiated by the commissions and changes to the process of public participation as set out in the Act, more can be done to educate the public concerning the redistribution process. Such educational projects would not necessarily be tied to the schedule or timeline of particular commissions, but would instead be national in scope with the twin goals of improving public awareness of the process and assisting the public in providing commissions with information and recommendations.
Under the Act, commissions have an obligation to inform the public of their particular proposals through newspaper advertisements. There is no provision in the Act requiring the commissions or any other public institution to undertake general efforts to inform and engage the public in the redistribution process.
Ideally, commissions would undertake comprehensive projects to inform and educate the public concerning the redistribution process. However, there are a number of barriers to commissions filling this role. First, commissions exist for a limited period of time; any such educational program could only be developed once the commissions have been established. Second, commissions do not necessarily have the expertise or administrative capacity to develop public education and information programs or their associated written and electronic materials. Finally, commissions already operate under tight statutory deadlines. To add the additional burden of public education to their workload would take away from their capacity to do their primary job of ensuring effective representation.
Elections Canada, on the other hand, is well placed to conduct public education programs concerning the redistribution process. Elections Canada has in-house knowledge about redistribution and experience in conducting public information and education campaigns on voting. Elections Canada already has authority to implement public education and information programs concerning the electoral process pursuant to section 18 of the Canada Elections Act. Elections Canada has an existing technical and administrative infrastructure that could easily be adapted to inform the public about the redistribution process.
Elections Canada could also use this authority to develop standardized materials to assist members of the public in expressing their views on electoral boundaries. This would improve the quality of the submissions to the commissions.
Elections Canada should be given the express authority to continue to develop materials and present information sessions to members of Parliament concerning redistribution and the role of members of Parliament in the process.
Members of Parliament, including members of both the House of Commons and the Senate, play several crucial roles in the redistribution process. Members are expressly permitted (under s. 19(1.1) of the Act) to make their views known to commissions at public hearings. It is important that members make their views known to commissions. As representatives of existing districts, members of the House of Commons have a unique level of knowledge about the appropriateness of these districts with regard to matters such as the capacity to represent communities, and the ease with which they can physically access all parts of the district. Members of Parliament also have a role to play in assisting members of the public to understand the public's role in the redistribution process and in making effective submissions to commissions. Finally, members of the House of Commons play a formal role in reviewing and potentially objecting to a commission's final report pursuant to section 22 of the Act.
Given the various key roles that members of Parliament play in the redistribution process, it is essential that they properly inform themselves about the process and their role. Prior to and during the recent redistribution process, Elections Canada conducted a number of activities to assist members of Parliament in understanding the redistribution process and their role in the process. Well before the commencement of redistribution, on May 23, 2001, a letter was set out to all members of Parliament informing them of the upcoming redistribution exercise, and enclosing an anticipated calendar of events. On March 13, 2002, a letter was sent out to all members announcing the start of redistribution. In the week before the publication of a commission's proposals, all members of the House of Commons for that province were sent advance notice of that publication, along with information as to how to contact the commission and the closing date for submitting a notice of intent to appear at a public hearing. On the day that a report was transmitted to the Speaker of the House of Commons, all members of the House for that province were given a copy of the report, as well as an overview of the role of members in making objections to the report. Extensive information concerning each province's redistribution exercise was also available on the Elections Canada Web site.
The actions that Elections Canada has taken to inform members of the House of Commons and Senate about the redistribution process generally, and their role specifically, should be formalized and made explicit in the law. This will continue to allow Elections Canada to inform members of the House of Commons and Senate of the redistribution process.