Enhancing the Values of Redistribution
Chapter 5 – Reviewing the Decisions of Commissions
The need for redistribution to be timely must be balanced with the goal of ensuring that the commission performs its obligations as required by law. The current process of public hearings, and the opportunity for members of the House of Commons to object to a commission's final report are steps that assist in ensuring that a commission has performed its duties accurately and that the possibility of a commission making errors is minimized.
The Act does not at present set out a process for reviewing the final report of a commission to allow for alleged errors to be challenged, or for clerical errors to be corrected. The lack of such a process means that errors must either go uncorrected or be subject to the standard process of judicial review under s. 18.1 of the Federal Court Act to which all federally created statutory bodies are subject. The process of judicial review is not tailored to meet the needs of the redistribution process.
When it became necessary to correct the representation order following the decision of the Federal Court of Canada in Raîche v. Canada (Attorney General) (2004) FC 679, the Act provided no express direction as to the remedy, and the Court merely required the government to act, without providing a process to follow.5
There is no constitutional means to insulate a commission's decision from judicial review on the grounds that it has committed a jurisdictional error. It is therefore preferable to create a clear process that is to be followed by parties in the case of an allegation that a commission has acted outside of its jurisdiction.
Both the House Standing Committee in its April 2004 report, and the Senate Standing Committee on Legal and Constitutional Affairs in its report of February 22, 2005,6 recommended the creation of a process by which the decisions of electoral boundaries commissions could be reviewed.
The Senate Committee emphasized that any such mechanism must reflect the important values of transparency and independence, while the Standing Committee noted that an appeal body must be independent and must act in a timely manner. What is therefore needed is a review process that is flexible and authoritative enough to correct errors, but which does so in a way that protects the values of the redistribution process, including the requirements of independence, transparency and timeliness.
An amendment should be made to the Act to provide that any individual resident in the relevant province may seek review of the commission's decisions in the Federal Court of Appeal on the basis that the commission has made an error of law.
The Act should provide that applications for review of a commission's decision must be made within 30 days of the proclamation of the representation order. Before the review application is heard, an applicant would have to seek leave from the court. A court would only grant leave if the error, which is the object of the complaint, could have produced a material effect on the commission's final report.
The Act should specify that the existence of an application to review the decision of an electoral boundaries commission does not affect the validity of the representation order proclaimed following receipt of the final report.
The Act should provide that if the court finds that an error was made, the original commission would be re-established, unless the commission members are not willing and able to act, or the court directs otherwise, in which case a new commission will be established using the same appointment procedures as are found in the Act. Any members of the original commission who are willing and able to act shall be appointed to the new commission unless the court has directed otherwise.
The commission would be permitted to work from its records or the records of the previous commission. Where a commission is of the view that it is necessary to do so, it may hold additional public hearings. In order to facilitate this, a provision should be added to the Act requiring commissions to maintain records of their public hearings.
The Act should specify that the amended representation order shall come into force on the date of the first dissolution of Parliament that occurs at least seven months after the date that the commission submits its amended report.
The merits of a commission decision should not be reviewable. The issues facing a commission are questions of judgment on matters that are not capable of any single factual resolution. Furthermore, the decisions of commissions are the product of significant community and parliamentary input. The purpose of a review process should therefore be limited to ensuring that a commission has not erred in interpreting the law in coming to its decision. It should not be an opportunity for members of the public to reassert points that have already been made at a public hearing. In other words, the decision of the commission should only be subject to review on the basis it has made an error of law, not on the basis that another body may have weighed the representations and other information differently.
In considering which court should be designated to review the commission's interpretation of the law, it should be remembered that, generally, electoral boundaries commissions are chaired by judges of the superior court of the province. If a judge of that court is not available, the Chief Justice of Canada appoints a chairperson; usually a retired judge of the province is appointed. For that reason, it is appropriate that a request for review of the decision of a commission should rest with the Federal Court of Appeal.
It is essential that only matters of import and effect should lead to review applications. Such review applications would bring the boundaries and elections conducted on the basis of those boundaries into question. For this reason, a constraint, such as a leave requirement, should be put on the circumstances in which review may be sought, to ensure that the process is not delayed or diverted by errors not significantly affecting the outcome.
Applications should be brought within 30 days. A reasonable limitation period for bringing applications is essential to ensure finality of the process, and to reduce the likelihood of a general election being conducted on the basis of boundaries that are under review.
Even with constraints, including timing constraints, the review process must not be allowed to delay the implementation of the representation order. Court applications can be lengthy affairs, and the implementation of the new representation order should not be held up because of a court challenge, or an application for an injunction based on such a challenge. Therefore, the Act should provide that the order would be in force and effective regardless of any court proceeding.
It may be thought to be unfair that the representation order under attack continues in place until the court has made its determination. There is some possibility that an election may be conducted on the basis of boundaries that are eventually found not to have been drawn in accordance with the law. However, this must be balanced against the harm to the vast majority of Canadians should they continue to be governed by electoral boundaries based on population information older than 10 years. The harm to the effective representation of the entire population of the country or province from not implementing the representation order in a timely manner outweighs that which may result from an election being conducted under improperly drawn electoral boundaries.
Where a court strikes down a report of a commission, the matter should be remitted back to the original commission, which would be reconstituted. The process of sending a decision back to the same body that made the original decision is entirely consistent with the approach generally taken by the courts in reviewing the decisions of administrative bodies. This ensures that the commission does not need to start the process from scratch.
If the original commission is not willing or able to act, a new commission should be set up through the same appointment process as set out in the Act. In addition, provision should be made for a situation where the Federal Court of Appeal is of the view that the original commission is not the appropriate body to refer the matter back to. If the court has not made such a ruling, the Act should specify that any members of the original commission who are willing and able to act shall be appointed to the new commission.
Commissions should expressly be permitted to work from their records, or in the case of a newly established commission, the records of the former commission, so as to ensure that the new boundaries are put into place as quickly as possible. A commission should retain the discretion to hold public hearings whenever it feels it is necessary to do so.
In order to assist commissions working from records, an express obligation should be included in the Act requiring commissions to maintain records of their public hearings. Such records would also be valuable sources of information for future commissions.
It cannot be predicted what changes would result if a commission is required to reconsider its report in accordance with a decision of the Federal Court of Appeal. The different interpretation of the law, as applied to the province's electoral map, may result in a few minor changes or several major changes. As such, the public, electoral district associations and Elections Canada should be granted as much time to adjust to the changed electoral map as if the new map had been brought about through the ordinary processes of the Act. That is to say, the amended report should come into force at the first general election that occurs at least seven months after the amended report is made.
The Chief Electoral Officer should be given the power to correct clerical errors in an electoral boundaries commission report. If the Chief Electoral Officer exercises this power, he must make a report to the Speaker of the House of Commons within the first 15 sitting days following the correction, along with a report of the reasons for the correction.
Once a general election has been held on the basis of boundaries based on a clerical error, the Chief Electoral Officer should no longer retain the power to correct the clerical error if the error affected the population of any district.
There is at present no authority set out in the Act for anyone to correct obvious clerical errors made by a commission.
Subsection 27(2) of the Act does, however, provide that where a part of the province is not referred to in the representation order, and it is doubtful as to which electoral district it forms a part of, the Chief Electoral Officer will determine the electoral district of which it forms a part and will report the determination, with reasons, to the Speaker of the House of Commons.
A parallel power should be given to the Chief Electoral Officer to correct clerical errors made in the report of the commission. A "clerical error" has a narrow legal meaning. A leading court case describes it as "an error in a document which can only be explained by considering it to be a slip or a mistake of the party preparing or copying it" (Re Ovens (1979) 26 O.R. (2d) 468 (Ontario Court of Appeal)).
The power to correct a clerical error should only last until the issue of the writs for the first general election to be held on the basis of the erroneous boundaries if the clerical error affected the size of the population of any electoral district. Once a general election has been held on the basis of the erroneous boundaries in this circumstance, the Chief Electoral Officer should no longer retain the power to correct the clerical error. When the clerical error affects the representation order, but does not affect it in such a way that it changes the population of particular districts, the Chief Electoral Officer shall retain the power to correct clerical errors after the first general election held based on the new boundaries.
Section 23 should be amended to provide that if the committee of the House of Commons objects to a name proposed by a commission, and proposes an alternative name, the commission shall be bound to accept that name unless the commission later receives public input regarding the name of the district. If a member of the public objects to the committee's choice, the commission shall decide on the most appropriate name.
The Act provides that commissions must determine both the boundaries and the names to be given to electoral districts. Members of the House of Commons are permitted to object to the names and boundaries, but the Act provides that it is the commissions, through disposing of any objections by members of the House of Commons, that have the final say on the boundaries and names of electoral districts.
With respect to boundaries, parliamentarians have accepted the decisions of the commissions as final. However, this has not been the case with electoral district names. During the period for which the 1996 Representation Order was in effect, laws have made changes to the names of 58 electoral districts. At the time of writing, since the 2003 Representation Order was proclaimed, laws have made changes to the names of 40 electoral districts.7
In addition to challenging the decisions of independent commissions, changes to the names of electoral districts cost taxpayers money through costs involved in the production of election materials reflecting the new names, tie up Parliament's time, and may also add to confusion among electors. Constitutionally, however, one cannot, through legislative change, prohibit future parliaments from intervening when they feel it is appropriate to do so.
The Standing Committee recommended that in situations where the House committee reviewing the report unanimously objects to a decision on a name, the commission shall be obliged to change the name in its final report. The difficulty with this recommendation is that it takes an important decision brought about by the readjustment of electoral boundaries out of the hands of the electoral boundaries commissions, which hear public representations, and places it into the hands of parliamentarians. This runs contrary to the spirit of the law, which seeks to remove members of Parliament from decisions involving electoral boundaries and to involve Canadians in those decisions.
A compromise is clearly needed to respect both parliamentary interest in the names of electoral districts and the role and mandate of electoral boundaries commissions. Thus, the final decision regarding electoral district names should still reside with commissions. However, if the House committee makes a report that objects to a proposed electoral district name, and proposes an alternative name, the commission must adopt the committee's name unless members of the public make a representation to the commission in favour of a different name. If members of the public make such representations, the decision as to which name to choose should rest with the commission.
This legislative change will not prevent Parliament from passing laws to change electoral district names. However, the suggested compromise would both give a greater, albeit not necessarily determinative, role to Parliament in the eventual choice of a name, while recognizing the statutory mandate of the commissions and the role of the public in the redistribution process.
The government created a commission of inquiry to re-evaluate the specific boundary at issue in that case, and passed legislation (Bill C-36, now known as An Act change the boundaries of the Acadie–Bathurst and Miramichi electoral districts, S.C. 2005, c. 6) to amend the representation order once the commission had reported.
The committee's Fifth Report from the 1st session of the 38th Parliament.
Four more bills to change names are before the House.