Supreme Court quashes Quebec legislature’s plan to delay electoral boundary redistribution
The CBA National spoke to Christine Davies about a recent Supreme Court of Canada case in which a majority of the Court quashed the Quebec legislature’s plan to delay its electoral boundary redistribution. The Court held that legislation delaying electoral boundary redistribution violated the right to vote under s. 3 of the Canadian Charter of Rights and Freedoms.
The Court’s decision focused on s. 1 of the Charter, which provides, in part, that a breach of a Charter right may be justified, provided the breach minimally impairs the Charter right. The majority concluded that the legislature had at least one alternative option that was less impairing of the Charter right to vote. The National spoke to Christine about the basis for the decision.
Christine Davies, a partner with Goldblatt Partners LLP in Toronto, who was not involved in the case, says the focus on the section one analysis was interesting because there has been a variation in that analysis in matters involving voting rights. She notes the Superior Court’s view was that section three has both procedural and substantive components flowing from the [Saskatchewan] provincial electoral boundaries case decided by the Supreme Court many years ago.
The lower court considered the independent process of drawing the boundaries of an area where a potential section three breach could be considered, but ultimately decided that it wasn’t an issue here. But she says the Court did consider whether the differences in population between ridings could also give rise to a section three breach.
In the Saskatchewan reference, Chief Justice Beverley McLachlin articulated the concept of effective representation, which had long been understood as the heart of section three and, in fact, its foundational and guiding principle. Davies says under that approach, you don’t need strict numerical parity between electoral districts because other factors, in addition to numerical equality, may justify variance to achieve effective representation and justify the variance between urban and rural ridings.
Section three analyses usually include a structural component on the running of a free and fair election with impartial agents, and the setting of electoral boundaries is an important structural component. From that perspective, she says it’s important to have independent commissions to help determine appropriate electoral boundaries, and account for numerical equivalence considerations and anything else that might bear on the question of effective representation.
The independence of those commissions has long been a Canadian feature that helps prevent partisan self-dealing, such as gerrymandering. Davies notes that the Superior Court decision stopped short of saying there must be an independent process, but left the possibility open. So, there could be a case in the future where someone has to decide that very question: whether the lack of an independent process, or political interference with it, gives rise to a section three breach.
“They did consider it significant that there was a mid-stream interference with the commission’s work, and the combination of both the procedural interference as well as the substantive concern that they had about the disparities that would be entrenched between ridings was what gave rise to the breach,” she says.
The absence of gerrymandering is not determinative of a breach, as this case did have the unanimous support of the National Assembly. But any deviation from the norm of independence is suspect, and will give rise to a need for a very careful review by courts. Davies says it’s possible the situation in Alberta, where the government has decided to forgo the bipartisan commission’s work in favour of a new process driven largely by the government’s initiative, could be an opportunity for the courts to consider this framework.
“Based on what we’ve seen, certainly the fact there’s been any change compared to what would have been done under a commission-based system may not be determinative, but it will certainly be of interest,” she says.