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October 29, 2007

Electoral Boundaries Gerrymander

Premier Campbell may discover that interfering with the independent Electoral 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.

The Campbell government's interference with the Electoral Boundaries Commission was detailed with the October 24th introduction of Bill 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?

If the 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.

Using the Canadian 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, in 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.), [1991] 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.

The Electoral 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.


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