Guaranteed Unequal Representation

September 15, 2007

Guaranteed Unequal Representation

On September 13th, after five in the second round of public hearings by BC's Electoral Boundaries Commission had been held, Premier Campbell essentially threw out 21 months of work when he issued a news release, and a letter addressed to the Speaker of the Legislature, on the topic of giving the Commission the legal tools to protect rural representation. It will be difficult for the Commission to start over and complete its work, with public consultation, in time for the May 12, 2009 election, 20 months from now.

The Commission's Preliminary Report indicates that, if the Commission didn't actually invite interference from the Premier, it certainly provided detailed instructions on what needed to be done if rural ridings were to be protected. Chapter 5 of its Preliminary Report, titled "Effective Representation" concluded by saying:

"Our interpretation of our mandate leads us to conclude that no region of the province has an automatic entitlement to "very special circumstances" status for some or all of its electoral districts. Neither do we believe that it would be appropriate for us to begin our boundary setting task with a presumption that each region of the province should be guaranteed its current level of representation. The Legislative Assembly could have made that our mandate - but it did not. Rather, we are governed by the overriding constitutional and legal requirement to strive for relative parity of voting power among electoral districts, and to deviate from parity only to the extent necessary to ensure effective representation."

Campbell's announcement can be seen as taking off from the point where the Commission said: "The Legislative Assembly could have made that our mandate - but it did not." In a few weeks the Legislature will change the mandate so relative parity of voting power among electoral districts will not be the primary factor that determines how boundaries are drawn; in other words, if you live in south Vancouver Island, the Lower Mainland or the Okanagan, your vote will count for less than if you live in the North, the Cariboo or the Kootenays.

The Preliminary Report clearly shows that adding additional seats would not be enough to preserve representation in the North. It gave examples with 81 and 85 MLAs, but if the Commission had known that the Campbell government would compel it to set the size of the next legislature at 87 MLAs, an increase of 8 from the current 79, it could have said that with a hypothetical perfectly even population distribution between the North's eight ridings, each electoral district would have a deviation from the provincial quotient of minus 32.3%, based on 87 electoral districts. In other words, it doesn't matter whether the province has 79 MLAs or 88 MLAs, increasing the number of MLAs cannot solve the problem that there just aren't enough people in the North to justify eight MLAs.

The solution dictated by Campbell and foreshadowed by the Commission is to automatically grant some regions of the province the status of "very special circumstances" so as to justify deviations from the average population to MLA ratio of more than 25%. The question, of course, is whether that is legal. It can be made legal from a provincial perspective with a stroke of the Legislative pen, but that doesn't make it constitutional.

In 1985 the British Columbia Civil Liberties Association initiated a court action, Dixon v. British Columbia (A.G.) (1989), 59 D.L.R. (4th) 247 (B.C.S.C.), in which Justice McLachlin (then Chief Justice of the B.C. Supreme Court, now Chief Justice of the Supreme Court of Canada) struck down the rules used to establish electoral boundaries and set the stage for allowing deviations of plus or minus 25% except in exceptional circumstances. In 1991, on the bench of the Supreme Court of Canada, she wrote the majority opinion saying that provincial jurisdiction to draw boundaries is subject to Charter of Rights and Freedoms scrutiny. The court stressed that equal "effective representation" is required rather than strict numerical parity between ridings, and it said:

"Relative parity of voting power is a prime condition of effective representation. Deviations from absolute voter parity, however, may be justified on the grounds of practical impossibility or the provision of more 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. Beyond this, dilution of one citizen's vote as compared with another's should not be countenanced."

Legislation to automatically grant exceptional status to certain regions of the province may be challenged in the courts. Whether that happens is probably up to the BC Civil Liberties Association or a similar advocacy group deciding to fight for the principle of relative parity of voting power. It would take an individual with deep pockets to test the constitutionality of Campbell's electoral boundary amendments. Since the Civil Liberties Association endorsed the BC-STV voting system in the 2005 referendum, it may not be inclined to repeat what it did in 1985 when it petitioned the court for "the right to a full, effective and equal vote in elections for members of the legislative assembly of the Province of British Columbia", but its directors may not see the contradiction between STV and voting parity.