Campbell may discover that interfering with the independent
Boundary Commission is like constructing the foundation
for a convention centre before the design plans are finalized.
Hastily drafted legislation may not withstand a Charter
of Rights challenge.
government's interference with the Electoral Boundaries
Commission was detailed with the October 24th introduction
39. The Bill provides that: "each of the regions
identified in the preliminary report as The North, Cariboo-Thompson
and Columbia-Kootenay must not have the number of their
electoral districts reduced from the number of electoral
districts that currently exist for the region". It
also provides that: "the boundaries of the regions
identified in the preliminary report, including the regions
referred to in paragraph (b), may be adjusted taking into
account the purposes described in subsection (2)".
In other words, three regions must have the same number
of MLAs as they now have, but the Commission is free to
change the boundaries of the three regions subject to the
provision that areas of the Province that are most sparsely
populated or geographically isolated, or both, have no fewer
Members of the Legislative Assembly than currently represent
those areas. If that isn't equivalent to a room with rubber
walls, what is?
regional boundaries are maintained exactly as they are in
the Commission's August 15th report, and 8 seats are added
to the rest of the province as required by Bill 39, the
average population per MLA will be 50,324 outside of the
three specified regions, and 34,755 in the three regions.
The 2006 census estimated BC's population as 4,113,487.
The August 15th report proposed 7 seats for the North, 4
for the Cariboo and 3 for the Kootenays; Bill 39 increased
that to 8, 5 and 4 respectively while requiring that the
rest of the province be represented by 70 MLAs. If boundaries
are drawn so as to have exactly equal populations in their
respective areas, the ridings represented by 70 MLAs would
be 6.4% over the average provincial population per MLA while
the three special regions would have constituencies 26.5%
under the provincial average. It might be interesting to
test whether that legislated inequality of an average 32.9%
meets the test of a Charter of Rights challenge.
Legal Information Institute's databases it is easy to
compare the BC legislation with electoral boundary legislation
in other provinces. All provinces except Saskatchewan require
an explanation if boundaries for a constituency are drawn
such that the constituency deviates from the provincial
quota by more than 25% (or 10% in some cases). For example,
Alberta a commission may allow no more than four ridings
to deviate by as much as 50% if three of five specified
criteria are satisfied. Rather than specifying criteria,
Saskatchewan simply requires that the area north of a division
line, specified in legislation, be given two seats. The
Saskatchewan legislation was tested and upheld in the Supreme
Court of Canada Reference
re Prov. Electoral Boundaries (Sask.),  2 S.C.R.
158. A question for the Court is whether the requirement
in Bill 39 is substantially the same as the requirement
in Saskatchewan's legislation. A major difference is that
the BC legislation allows the Commission to change the boundaries
of the regions that have over-representation so as to minimize
deviations from voter parity and greatly reduce the 32.9%
average deviation explained above.
Boundaries Commission Act, which is amended by Bill
39, does not use the term "region", let alone
define the North, Cariboo or Kootenays. With the rubber
walls Bill 39 gives the Commission, it could change the
boundaries used in its August 15th report so as to have
just four or five regions that would describe the entire
province. The Kootenays could be redefined as a backward
"L" shaped regions taking in what we know as the
Kootenays plus the southern portion of the province through
the Fraser Valley and Lower Mainland; the North could be
redefined so as to capture Vancouver Island and the Cariboo
could capture the Okanagan. As absurd as those suggestions
may sound, there is nothing in the legislation that prevents
it, and doing exactly that would allow the Commission to
come closer to the idea of voter parity than the Premier
seems willing to allow. The Supreme Court of Canada may
ultimately have to determine whether the Commission is required
to use its authority to change regional boundaries so as
to reduce deviations from voter parity.