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ELECTIONS - Electoral districts or ridings - Boundaries - Revision of boundaries - Constitutional issues - Canadian Charter of Rights and Freedoms

Tuesday, February 07, 2017 @ 10:10 AM  

Reference regarding the abolition of three provincial ridings. Nova Scotia’s House of Assembly Act, s. 5, required that every 10 years, an independent Electoral Boundaries Commission was to conduct hearings and prepare a report recommending electoral boundaries. In 1992 and 2002, the Electoral Boundaries Commissions recommended three ridings which were significantly Acadian constituencies. These ridings would have notably less than the average population ratio for Nova Scotia’s ridings generally, in order to encourage participation in the Legislature by individuals belonging to the Acadian minority. The recommendations were approved by the Legislature. However, in 2012, the terms of reference of the Commission excluded the option of maintaining the protected ridings. All ridings in Nova Scotia were to satisfy the maximum variance of population ratio. Nonetheless, the Commission recommended the continuation of the three ridings. The Attorney General took the view that the Commission had violated the Terms of Reference and it directed the Commission to prepare a new report. As a result, the Commission revised its report and
recommended the elimination of the three ridings. The Legislature enacted the boundaries from the report and the three protected ridings disappeared.

HELD: The abolition of the former provincial electoral ridings of Clare, Argyle and Richmond infringed s. 3 of the Canadian Charter of Rights and Freedoms and that infringement was not justified under s. 1. Section 3 of the Charter required that electoral boundaries reflect effective representation. The determination involved a balance of voter parity and countervailing criteria, which in the present case included minority representation and cultural identity. The Commission, which was the body authorized by law to craft the electoral boundaries, must be allowed to balance the constitutional criteria and to express its view on the matter. The Attorney General’s intervention prevented the Commission from performing the balance and from expressing its authentic view of effective representation for electors in the three ridings. The legislative objective was to implement constitutional principles of effective representation with the assistance of an independent commission. There was no rational connection between the Charter infringement and the legislative objective. The Attorney General’s “voiding” of the Commission’s interim report did not minimally impair the Charter right.

Reference re: House of Assembly Act (N.S.), [2017] N.S.J. No. 26, Nova Scotia Court of Appeal, J.E. Fichaud, J.W.S. Saunders, L.L. Oland, P. Bryson and C.A. Bourgeois JJ.A., January 24, 2017. Digest No. 3637-007