Enhancing the Values of Redistribution
Chapter 2 – Making Representation More Effective
In the 1991 Supreme Court of Canada Case Reference re Prov. Electoral Boundaries (Sask.)3 (referred to as the "Saskatchewan Reference"), the Court stated that the right to vote under section 3 of the Canadian Charter of Rights and Freedoms guaranteed Canadians the right to "effective representation." The goal of redistribution is to ensure the constitutional right of effective representation.
The Court made the following comments on the constitutional right to effective representation:
What are the conditions of effective representation? The first is relative parity of voting power. A system which dilutes one citizen's vote unduly as compared with another citizen's vote runs the risk of providing inadequate representation to the citizen whose vote is diluted. The legislative power of the citizen whose vote is diluted will be reduced, as may be access to and assistance from his or her representative. The result will be uneven and unfair representation.
But parity of voting power, though of prime importance, is not the only factor to be taken into account in ensuring effective representation. ...
Notwithstanding the fact that the value of a citizen's vote should not be unduly diluted, it is a practical fact that effective representation often cannot be achieved without taking into account countervailing factors.
First, absolute parity is impossible. It is impossible to draw boundary lines which guarantee exactly the same number of voters in each district. Voters die, voters move. Even with the aid of frequent censuses, voter parity is impossible.
Secondly, such relative parity as may be possible of achievement may prove undesirable because it has the effect of detracting from the primary goal of effective representation. Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic. These are but examples of considerations which may justify departure from absolute voter parity in the pursuit of more effective representation; the list is not closed.
It emerges therefore that deviations from absolute voter parity may be justified on the grounds of practical impossibility or the provision of more effective representation. Beyond this, dilution of one citizen's vote as compared with another's should not be countenanced. I adhere to the proposition asserted in Dixon, supra, at p. 414, that "only those deviations should be admitted which can be justified on the ground that they contribute to better government of the populace as a whole, giving due weight to regional issues within the populace and geographic factors within the territory governed."
The principles of this case form the starting point for the law governing the drawing of electoral boundaries.
It is important to remember that equality, or parity, of voting power is the factor of "prime importance" in achieving effective representation. However, where the result brought about by parity of voting power would detract from effective representation, "[f]actors like geography, community history, community interests and minority representation may need to be taken into account". However, the Court cautioned that only those deviations from absolute voter parity that lead to more effective representation should be allowed.
The approach set out in section 15 of the Act meets the requirements of the Supreme Court decision. Subsection 15(1) states that the goal of electoral boundaries commissions is to draw electoral districts with populations as close as reasonably possible to the provincial quotient. In drawing these boundaries, the commissions shall consider community of interest or identity, the historical pattern of an electoral district in the province, and a manageable geographic size for districts in sparsely populated, rural or northern regions of the province.
Also, the commission is permitted to depart from the obligation to draw boundaries as close as reasonably possible to the provincial quotient where the commission considers it necessary or desirable to do so in order to respect the community of interest or identity, or the historical pattern of an electoral district or to maintain a manageable geographic size for districts in sparsely populated, rural or northern regions of a province. Commissions may depart from the quotient by up to 25% where they feel that these reasons make it necessary or desirable to do so. However, in extraordinary circumstances, the commission may depart from the quotient by more than 25%.
This chapter sets out recommendations to improve the effective representation provided by the Act, and to clarify the terms of section 15.
A subsection (3) should be added to section 15 of the Act stating that in applying the concept of community in subsections (1) and (2), a commission shall recognize communities when doing so promotes or maintains the effective representation of members of the community. In applying the concept of community, the commission shall consider factors such as:
- demographic and sociological characteristics;
- boundaries of local government and administrative units;
- economic ties; and
- any other factor that the commission feels is demonstrative of the existence of a community.
No concept leads to greater debate during redistribution than the concept of community. The Act calls for the recognition of community, but does little to define the concept. The vast majority of representations at public hearings concern definitions of community, and the most prominent battles over the determinations of commissions generally involve allegations that a commission has failed to properly recognize a community.
In theory, representation in the House of Commons has been based on the concept that a member of Parliament represents not simply a group of 100,000 or so individuals, but a group of persons who are connected because they share a certain identity (such as a cultural identity) or certain interests (such as economic interests).
People do not, of course, live in easily identifiable communities of 100,000. All individuals could identify themselves, or could be identified by others, as belonging to a number of different communities. One individual may share a cultural community with those who live to the west, and economic ties with those who live to the east. A community may be seen in objective demographic data or in the subjective feelings as expressed by self-identified members of a community. A community may be formed by boundaries drawn for other purposes such as municipal boundaries or the boundaries of an Indian reserve.
The difficult task of an electoral boundaries commission is to determine which of the many overlapping communities that exist in our society (if any) is most salient to people's effective representation, and to balance that determination with the predominant goal of population equality.
The Standing Committee recognized that the concept of community is difficult to define, and acknowledged that the application of the concept must be up to commissioners, but urged a greater understanding of the concept.
To this effect, the Standing Committee recommended that the Act be amended to include a clear definition of community in the Act as well as more information or guidance by which community representation is to be assessed (Recommendation 3).
Attempts to further elucidate the concept of community in the Act will meet with three difficulties. The first is that, as outlined above, the concept of community is very difficult to define. The debate over what constitutes a community is as rich and varied as the human experience which it attempts to encompass. Because definitions of community are dependent upon the particular facts of the situation, the Act entrusts decisions to commissioners who hear public representations concerning the relevant identification of community necessary to ensure effective representation. Commissions must identify not only communities, but communities whose recognition is necessary to ensure effective representation of individuals in a particular area. Efforts to ease the task of identification through expanded definitions of community may be fruitless because the subject is not amenable to easy or static definition.
Secondly, statutory efforts to define community may constrain the thinking of commissions and reduce their ability to recognize new or emergent communities.
Finally, any efforts to define the term community must heed the decision of the Supreme Court in the Saskatchewan Reference. The Court stated that in ensuring effective representation, "[f]actors like ... community interests may need to be taken into account". If a statutory definition of community is created that effectively prevents commissions from considering certain community interests, an argument may be made that the law does not comply with the constitutional obligations laid down by the Supreme Court, because it prohibits commissions from considering a matter that leads to more effective representation.
For all of the above reasons, it is unlikely that a more comprehensive definition of "community" could be added to the Act at this time. However, adding to the Act an open list of factors that are generally understood as possible contributors to the definition of a community may help commissions decide between competing concepts of community. A non-restrictive list of factors would also guide commissions as to what Parliament believes to be particularly salient indicators of community in our society.
In the Saskatchewan Reference, the Supreme Court stated that the reason that factors such as "community interests" and "minority representation" may need to be considered is so that legislative assemblies "reflect the diversity of our social mosaic" and thereby achieve effective representation. It is clear, therefore, that demographic or sociological characteristics, such as those collected by Statistics Canada as part of the census are factors that may define communities that need to be considered to ensure effective representation.
Another thing that commissions should consider in applying the concept of community is municipal and local government boundaries. Municipal boundaries explicitly define communities such as cities, towns, villages or counties. Individuals living within municipalities or other local administrative units develop economic, social and political ties by virtue of living within the same political community.
A further consideration in determining the existence of a community for the purposes of section 15 is the economic relationships that are central to people's lives. Patterns of trade, commuting and other indications of economic ties between regions may suggest the existence of a community. People are more than the sum of their economic relationships, but economic interests would appear to fall within the interests that Parliament had in mind when it included "community of interest" in section 15.
The list of factors that may be considered should not be closed. In any instance where a case can be made that a particular community should be taken into account to achieve the goal of effective representation, the commission must feel free to consider that factor.
Lastly, commissions must also take into account the provisions of the Official Languages Act to the extent that they are required to do so by that statute.4
A subsection should be added to section 15 stating that Indian reserves, as defined in subsection 2(1) of the Indian Act, shall not be divided between two or more electoral districts, except in circumstances where it is clear to the commissioners that such division is necessary in order to achieve effective representation. If a commission chooses to divide a reserve between two or more districts, it shall explain its reasons for doing so in its report.
Indian reserves, as this expression is defined in subsection 2(1) of the Indian Act, constitute natural communities whose members generally share a common identity and common interests. An Indian reserve is a de facto expression of a community.
Indian reserves should not be split between two or more electoral districts unless such division is necessary in order to achieve effective representation. If the commission does split an Indian reserve between two or more electoral districts, the commission should explain in its report its reasons for doing so.
A subsection should be added to section 15 stating that commissions should not change existing electoral boundaries unless the commission is of the view that changes in population and communities require such a change so as to ensure effective representation.
In its report, the Standing Committee on Procedure and House Affairs expressed frustration with what it saw as unnecessary changes to the boundaries of electoral districts. The Committee stated that commissions should be discouraged from creating change for the sake of change. For this reason, the Committee recommended a provision in the Act that clearly prefers continuity of ridings and of riding patterns over change, in order to best preserve the historical continuity of representation in a province (Recommendation 2).
It is a commission's duty to ensure that the electoral boundaries of a province ensure effective representation. As the Supreme Court noted in the Saskatchewan Reference, populations are not static. Redistribution takes place only every 10 years, and it is likely that significant shifts in either population or communities within the population have taken place in that time. These shifts may have affected the relative density of population in different parts of a province, and may have shifted the shape or composition of communities. In these circumstances, a commission must reassess the electoral boundaries.
However, it should be recognized that existing boundaries have already been drawn in recognition of communities and they themselves contribute towards self-identification of their residents. It should also be recognized that the demarcation of electoral boundaries is an exercise of judgment and that different commissions may reach equally valid but different judgments based on similar facts.
Changes in electoral boundaries have disruptive effects on voters as well as electoral district associations, political parties, members of Parliament and candidates. Stable electoral boundaries are an important contributing element for achieving effective representation. This is recognized by section 15 of the Act which provides that the "historical pattern of an electoral district" is one of the factors that is to be used by commissions in drawing electoral districts, and may be used to justify deviations from the provincial quotient. In the Saskatchewan Reference, the Supreme Court also recognized that "community history" is a factor that may have to be considered to achieve effective representation, and may, in some cases, justify a deviation from the provincial quotient.
In order to balance the competing benefits that flow from continuity and from a thorough review of the existing boundaries in the case of changes in the demographics of a province, a provision should be added to the Act that makes it clear that while changes brought about to achieve effective representation are necessary, change in the absence of such a requirement is not necessarily desirable or effective.
The deviation from the provincial quotient permitted under paragraph 15(2)(b) of the Act should be reduced from 25% to 15%.
Where a commission proposes boundaries that deviate from the quotient by more than 15%, in circumstances that the commission finds to be extraordinary, it shall explain, in its report, its reasons for doing so.
The Act provides that commissions must draw electoral districts to be as close as possible to the provincial quotient (defined as the average population of electoral districts in the province). The Act also provides that commissions may deviate from the quotient by up to 25% to address particular factors as cited above. Finally, the Act states that in extraordinary circumstances, commissions may deviate from the quotient by more than 25%.
The acceptable deviation from the quotient, including the "extraordinary circumstances" section, has been the subject of previous recommendations concerning the Act. Reporting in 1991, the Lortie Commission recommended the reduction of the permissible deviation from the quotient to 15%, and the elimination of the "extraordinary circumstances" provision in order to ensure that votes were more equally weighted. Bill C-69 did not propose any changes to either the 25% deviation or the "extraordinary circumstances" clause. The Standing Committee recommended that some mechanism be found to deal with the need for representation in sparsely populated ridings (Recommendation 6). The Standing Committee stated that if such a method were found, consideration should be given to reducing the permissible deviation to 15% (Recommendation 7).
(i) Extraordinary Circumstances
The Standing Committee recommended two methods for accommodating the very sparsely populated districts that the "extraordinary circumstances" clause is intended to protect.
The first was to entrench certain districts in legislation. The second was to provide for different possible deviations from the quotient for northern and southern Ontario, Quebec and British Columbia.
There are, however, difficulties with both options. In the case of the entrenchment option, parliamentarians would become involved in the drawing of electoral boundaries. This is the very practice that the Act was designed to stop.
Parliament would also be involved in drawing the boundaries with the second option, by determining the line between the northern and southern parts of the province. As well, fairness would seem to require that special provision be made for northern districts in more than simply three provinces. This option would also entrench in legislation different standards for Canadians depending on where they live.
The problem raised by the Standing Committee does require a solution. Canada is an enormous country with regions of sparse population, especially in the north. At a certain point, a member of Parliament may no longer be capable of providing effective representation to a geographically large area. The Supreme Court recognized this difficulty in the Saskatchewan Reference case by providing that in some cases effective representation will only be achieved by deviating from the provincial quotient for reasons of geography.
There is no evidence that the "extraordinary circumstances" provision has been overused by commissions in the three redistributions that have taken place since it was added to the Act. In the most recent redistribution, commissions only used this provision to create two electoral districts (Labrador and Kenora). In the 1996 redistribution it was used twice, while in 1987 it was used five times.
Considering the potential difficulties with the proposed alternatives, and the fact that the "extraordinary circumstances" clause does not appear to have been overused, there does not seem to be a reason to change it.
As long as commissions continue to use this provision sparingly, the "extraordinary circumstances" provision offers the most appropriate way to account for the needs of those rare communities that do not fit within the scope of the general rules in section 15. Commissions should, however, be required to provide reasons explaining their use of the provision.(ii) Deviation from Quotient
Having provided a means to protect the rare cases of regions of extremely sparse population, consideration should be given to the permissible deviation in the vast majority of cases. As the Supreme Court of Canada has said that relative population equality is the "primary factor" in achieving effective representation, a move towards requiring greater population equality will improve effective representation.
The vast majority of districts are already drawn to fall within 15% of the provincial quotient. In the 2003 redistribution, only 17 out of 305 (5.6%) districts drawn by the commissions were outside the 15% deviation from the provincial quotient. A requirement to draw all districts within a 15% deviation will therefore not place a great additional burden on commissions. For these reasons, the allowable deviation from the provincial quotient should be lowered from 25% to 15%.
Subsections 15(1) and 15(2) of the Act should be amended to include topographical features and transportation networks as two additional factors that must be considered by commissions in drawing boundaries, and that can be bases for deviating from the provincial quotient.
The Standing Committee on Procedure and House Affairs stated the concern that in several circumstances, commissions did not pay proper heed to local topographical features or the transportation routes of provinces.
Electoral boundaries are more than simply lines on a map. They dissect and intersect physical features of a province including rivers and mountain ranges. These physical features can also be natural indicators of communities. Commissions must pay heed to these physical features, to ensure that they do not create districts which appear logical on a map, but in fact operate in such a way as to prevent one area of the district from being accessible from other areas.
Transportation networks, including roads and available air and ferry service, are important because members of Parliament need to be able to access the different parts of the district. In addition, the accessibility of one region to another may be evidence of the existence of a community between those two regions that a commission may wish to take into account. In contrast, the lack of available transportation between two regions may suggest that the people of those two regions are not a "community."
 2 S.C.R. 158.
See Raîche v. Canada (Attorney General), 2004 FC 679 (F.C.C.) as contrasted with the later Forum des maires de la Péninsule acadienne v. Canada (Canadian Food Inspection Agency), 2004 FCA 263, currently on appeal to the Supreme Court of Canada.