The redistribution of electoral boundaries is an issue of special interest to the B.C. Civil Liberties Association, an organization established and maintained to protect and enhance the rights of citizens, and to encourage them to take seriously the responsibilities implied by those rights. Voting is an act that fits both categories. As a right, voting is protected in our society as a personal decision, free from governmental or other forms of interference, a private expression of our hopes for our community. Voting is also a responsibility taken seriously by conscientious democrats, who view the act of voting as both an expression and a confirmation of the citizen’s role as the ultimate sovereign in a democratic society.
The problem with these theories about voting^#151;which are of the most fundamental importance to our commitment to democratic government—is that in Canada today we are faced with many situations which make a mockery of the voting procedure, which encourage citizens to apathy rather than to participation, and which undermine the system that our voting procedures were meant to serve. Because population changes over the years have increased the number of voters in some regions and decreased the number in others, and because decisions about electoral boundaries have traditionally favoured rural ridings as opposed to urban, some Canadians are faced with the fact that their vote does not count very much. Citizens in heavily populated areas are frequently underrepresented in their provincial and federal parliaments and voting in those circumstances does not serve or reflect a democratic purpose. Rather, the integrity of the citizen’s role as a constitutive part of the ultimate sovereign authority in our community is compromised and undermined.
An example of this is what has happened to the Vancouver-Kingsway riding in the recommendations of the Electoral Boundaries Commission. It is the recommendations from that Commission which prompt these remarks.
In our brief written submission to the Federal Electoral Boundaries Commission of B.C. in November 1986, the BCCLA informed the Commission of the litigation our Association is engaged in concerning the applicability of the Charter of Rights and Freedoms to electoral districting laws at the provincial level. On October 28, 1986, the Honourable Chief Justice of the B.C. Supreme Court ruled, in essence, that the laws setting electoral district boundaries for provincial elections in British Columbia were subject to the Canadian Charter of Rights and Freedoms. It is our Association’s position that this ruling is equally applicable to federal electoral district boundary laws.
In B.C., we will argue at trial that the Charter’s guarantee of rights of political expression, voting rights, liberty and equality are all infringed or denied by the present electoral districting laws at the provincial level in British Columbia. As you may be aware, the divergence in the number of electors between the most populous and least populous provincial electoral districts in British Columbia is a ratio of 14 or 15 to one. When we addressed the Electoral Boundaries Commission in November 1986, the divergence in electors between the smallest and largest proposed federal riding was somewhat more than 29%.
The BCCLA position is that strict equality of population amongst electoral districts should be the rule. It is on this basis that we have challenged the electoral districting laws in B.C. The position applies equally well at the federal level. The Electoral Boundaries Commission’s proposals in November 1986 were already unacceptable given the BCCLA position. The new recommendations regarding Vancouver ridings go even further beyond acceptable limits.
The recommendations, which reduce Vancouver’s ridings from five to four, increase the discrepancy between the lowest populated riding (Kootenay West-Revelstoke; 71,510; -16.6%) and the heaviest populated (Vancouver South; 107,725; +25.6%) to over 40%. All four of the new Vancouver ridings are 20% more than the electoral quota prescribed for B.C. ridings under the federal Electoral Boundaries Adjustment Act. The four proposed Vancouver ridings would be the four most heavily populated in the province, the next closest being Nanaimo-Cowichan with a discrepancy of +15.6%.
We are aware that the present Electoral Boundaries Readjustment Act of Canada allows a divergence of plus or minus 25%. It is our position that the Charter of Rights and Freedoms, as a superior law, must be considered as superseding this provision of federal statute law, and that the Commission should strive for equality of population among the electoral districts it proposes.
What has happened with the elimination of the Vancouver-Kingsway riding is only the most obvious and odious violation of the equality of population principle which should be, but has not been, a central concern of the Commission’s work. The Commission’s disregard of the one-person-one-vote principle is made even more unacceptable by its failure to give notice to Vancouver electors that one of their ridings might be eliminated. To the contrary, the materials prepared for the Commission’s B.C. hearings stated clearly that the Commission was proposing that Vancouver’s five ridings would be “unchanged”. Instead, in its formal recommendations, the Electoral Boundaries Commission has made Vancouver electors the most underrepresented in the province, has failed to readjust electoral districts in B.C. to conform as reasonably as possible to the electoral quote for the province, and has apparently made no effort whatsoever to conform to a one person one vote principle.
In a few months, the Supreme Court of British Columbia will decide whether or not provincial electoral boundaries as presently established violate the Charter of Rights and Freedoms. The direction which the federal Electoral Boundaries Commission has moved in B.C. tempts fate in regard to the same issues. There is room and time here, however, for real progress to be made toward equalizing federal electoral districts. The Standing Committee should urge such a course on the Electoral Boundaries Commission.
From our 1988 and 1989 Annual Reports
On January 9, 1989, the Association’s secretary, Robert Holmes, acting as our legal counsel in this matter, opened our case challenging the province’s electoral district boundaries before Chief Justice Beverley McLachlin of the Supreme Court of British Columbia. The case was argued for three and one half days. The Association’s position is a very clear one. Equality of voters or of population amongst the various electoral districts is the goal which we say the Charter of Rights and Freedoms requires.
The government was represented in the proceeding by the Deputy Assistant Attorney General, E.R.A. Edwards, Q.C. The government contended that there were at least two conceptions of democracy: the populist one requiring equality of numbers amongst the electoral districts (and which was the position favoured by the BCCLA); and a Burkean or Whig notion of democracy in which people are assembled into various subgroups and their “interests” are represented. The government stated that it was the latter form of representation which was a true Canadian model and that the Charter of Rights and Freedoms guarantee of voting rights and equality had to be read in that historical context.
We did obtain at least one concession from the government in the course of argument of the case. On the third day, the government’s lawyer, when pressed by Chief Justice McLachlin, agreed that if electoral district boundaries were set in a fashion which was severely disproportionate, then the court could intervene in order that democratic rule be restored. The government said, however, that the existing set of electoral district boundaries in British Columbia were not so bad as to call out for court action.
That position of the government is made, of course, in the face of disparities as great as 15 to one when certain suburban constituencies in the Lower Mainland area are compared with the electoral district of Atlin. However, the government noted that the average discrepancy in British Columbia is not that great.
Our counter argument was to note that only one third of the constituencies in British Columbia were within a plus or minus ten percent divergence from the average number of voters. In the United State that would be completely unacceptable. In a decision of the United States Supreme Court in the 1970s dealing with state levels districting in Virginia, a total divergence of 16.4% was permitted. The Supreme Court stated there, however, that that plan approached the maximum tolerance constitutionally permissible under the United States Constitution.
In April, 1989 the Court handed down its decision, declaring the electoral boundaries of the province to be in violation of the right to vote guaranteed by section 3 of the Charter. The Court held that the disparities in the size of B.C. ridings breached the principle of equality of voting power, a fundamental component of the right to vote.
The Court suggested that the legislature might look to the Report of the Fisher Commission in developing new boundaries. That report recommended a limit of 25 percent in the variation between the population in any riding and the average population of all ridings. The Court left the current boundaries in place to prevent a “constitutional crisis” in the case of an early election and invited the parties to make submissions before another justice of the Supreme Court as to how much time should be allowed to put the new boundaries in place.
These submissions were made. The Judge hearing them decided that he could not set a deadline for the establishment of new boundaries. Although an appeal of the decision was filed, it was abandoned after the Legislature passed a bill accepting the principles on which the Fisher Report was based and creating a committee to finalize the new boundaries, which were in place for the next provincial election.