Fair Voting BC would like to register our significant disappointment that the Electoral Boundaries Commission (EBC) has not addressed the key recommendations we made in our original submission - namely, that the EBC:
1. Forcefully and eloquently address the significant constraints placed upon its deliberations by the 2014 Electoral Boundaries Commission Amendment Act
2. Explicitly address the fact that they have been forced to recommend potentially (even likely) unconstitutional boundaries
3. Follow the lead of the Nova Scotia Electoral Boundaries Commission include a brief discussion of the implications of our current electoral system on the boundary-setting process and point out some alternative approaches to our electoral system that would make the boundary-setting process far simpler than it is at present
In addition, we are disappointed that the EBC did not include a list of submissions received and a statistical summary of the input received. In this way, the main concerns of the people who made submissions to the EBC would at least be acknowledged and part of the public record. We urge you to do this in your final submission.
Reiterated Request that the EBC Explicitly Notify Legislature of Constitutional Implications for Proposed Redistribution of Voters' Right to Effective Representation
Fair Voting appreciates that the Commission has taken two pages in its Preliminary Report to explicitly address the topics of "The right to vote and population equality" and "Effective representation". The EBC has made several important points in these sections, most notably the fact that the Supreme Court of Canada noted that the purpose of the Section 3 right to vote is to secure "effective representation" and that "each citizen is entitled to be represented in government". The EBC rightly quotes the SCC in stating that the first condition of effective representation 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 result will be uneven and unfair representation". As the EBC points out, the SCC has ruled that deviations of up to 25% may (with justification) be found to fulfill the concept of effective representation, and potentially deviations as high as 50% may be found acceptable (as in the two northern districts in Saskatchewan).
The EBC then describes the effect of the provincial government's 2014 legislation - the Electoral Boundaries Commission Amendment Act, 2014 - which defines three regions in the interior of the province for which the EBC is prevented from decreasing the number of MLAs assigned. The impact of this legislative amendment is to entrench significant population deviations in these regions: 22% below the provincial average in the Cariboo-Thompson region, 29% below in the Columbia-Kootenay, and 37% below in the North region.
However, while the EBC has noted the effect of this legislative change, it has done so uncritically and has not commented on the potential unconstitutionality of this change. In our original submission, Fair Voting BC requested that EBC explicitly call the legislature's attention to this possibility. To reiterate a key section of our original submission:
"The degree of inequality in BC is already large (~4:1 for Surrey-Cloverdale vs Stikine), and anticipated population shifts will continue to drive this ratio even higher. Based on 2011 census data, the average population in the ridings in the protected regions is only 35,600, compared with 55,800 in the non-protected ridings, for a ratio of nearly 1.6:1 on average (the ratio of the largest to the smallest riding in the province is, as noted, considerably higher). Based on population projections, the population in the protected regions is slated to grow by less than 9% in the next 20+ years, while that in the rest of the province is anticipated to grow by over 32%. This will dramatically increase the degree of inequality, with the average ratio between the unprotected and protected regions expected to grow to nearly 2:1.
While the courts have upheld deviations from equality in particular circumstances, it has also struck down significant discrepancies (eg, a ratio of 5.8:1 in PEI in 1993). Though there is still a gap between BC's current maximum ratio of 4:1 and the 5.8:1 in PEI, future demographically-driven changes will steadily close it. If BC's current distribution is not already unconstitutional, it almost certainly will be soon.
For these reasons, Fair Voting BC urges the Commission to explicitly warn the Legislature that the restrictions that it has placed on you will significantly impede your ability to achieve a constitutionally acceptable boundaries distribution. Indeed, several justices who heard the 1991 Saskatchewan case expressed deep concern that "[t]he restrictions placed on the Electoral Boundaries Commission by The Electoral Boundaries Commission Act were unknown to previous commissions" and argued that "[o]nce an independent boundaries commission is established, it is incumbent on the legislature to ensure that the Commission was able to fulfill its mandate freely and without unnecessary interference. The right to vote is so fundamental that this interference is sufficient to constitute a breach of s.3 of the Charter" (emphasis ours).
Our friends at Burnaby/New Westminster Citizens for Voting Equality have in fact called on the Commission to refuse to participate in this process due to its likely unconstitutionality. Whether or not you agree that your remit steps over the line of constitutionality, we urge you to raise these concerns forcefully and eloquently."
While we congratulate the EBC on maintaining the maximum positive deviations in riding size to under 20% (maximum of 18% over in Vancouver-Fraserview), the size ratio between the largest and smallest proposed ridings in the province will exceed 3:1 (Vancouver-Fraserview at 62,885 to Stikine at 20,616) in 2014, and will almost certainly rise significantly over the two elections that these boundaries are expected to be in force due to demographic changes in the various regions.
The absence of a fundamental necessity for such extreme deviations is demonstrated by the fact that (as noted in our original submission), "In 2012, the Federal Electoral Boundaries Commision did an excellent job of adhering to the principle of equality by proposing a set of boundaries, all but one of which (Skeena-Bulkley Valley) lay within 10% of the provincial average, and even Skeena-Bulkley Valley was within 15% - a level of deviation that the Supreme Court accepted in the 1991 Saskatchewan Reference Case." It is not sufficient for the EBC to accept the government's mandate without comment and detailed justification - in the 1994 Alberta Court of Appeal regarding the Electoral Divisions Statutes Amendment Act, the Court affirmed that "there is no permissible variation if there is no justification. And the onus to establish justification lies with those who suggest the variation." In the previous paragraph, the Court said that such a suggestion requires "specific reasons and specific facts." The EBC has neither provided these reasons and facts nor required the government to do so. At the very least, Fair Voting BC believes that it is incumbent on the EBC to point out these constitutional requirements to the government in its report.