Reference re the Final Report of the Electoral Boundaries Commission, 2017 NSCA 10

Nova Scotia Court of Appeal Citation: Reference re the Final Report of the Electoral Boundaries Commission , 2017 NSCA 10 Date: 20170124 Docket: CA 432219 Registry: Halifax IN THE MATTER OF

Section 3 of the Constitutional Questions Act , R.S.N.S. 1989, c. 89; AND IN THE MATTER OF a Reference by the Governor in Council concerning the September 24, 2012 Final Report of the Electoral Boundaries Commission and

Section 1 of the House of Assembly Act ,

Chapter 61 of the Acts of Nova Scotia , 2012, as set out in Order in Council 2014-414, dated October 1, 2014 Judges: The Honourable Justices Fichaud, Saunders, Oland, Bryson and Bourgeois Reference Heard: September 20 and 21, 2016, in Halifax, Nova Scotia Subject:

Section 3 of Canadian Charter of Rights and Freedoms – electoral boundaries – effective representation – justification under s. 1 of Charter

Summary: Nova Scotia’s House of Assembly Act , R.S.N.S. 1989, c. 61, s. 5 , says that, every 10 years, an Independent Electoral Boundaries Commission is to inquire and recommend provincial electoral boundaries. Under s. 5: (1) the Commission is to conduct hearings, prepare an interim report, hold further hearings on the contents of the interim report, then prepare a final report; (2) the Government is to introduce the recommendations from the final report as a bill in the Legislature.

The leading decision of the Supreme Court of Canada has said that: (1) to comply with s. 3 of the Canadian Charter of Rights and Freedoms , the electoral boundaries should accomplish “effective representation”; and (2) effective representation involves a balance of voter parity with other criteria that may include minority representation and cultural identity. In 1992 and 2002, the Commission recommended, and the Legislature enacted, electoral boundaries for the significantly Acadian ridings of Clare, Argyle and Richmond that had notably less than the average population ratio for Nova Scotia’s ridings generally.

The reason was to encourage the participation in the Legislature by individuals belonging to the Acadian minority. In 2012, the Terms of Reference to the Commission, prepared by a Select Committee of the House of Assembly, excluded the option of maintaining these three ridings. The Terms of Reference said that all electoral districts must come within a maximum variance of population ratio. It was clear from the outset that Clare, Argyle and Richmond did not comply with that maximum. The Commission’s Interim Report nonetheless recommended that the three ridings continue.

The Commission’s reason was that the constitutional criteria of effective representation, in the Commission’s view, justified the continuation of Clare, Argyle and Richmond to promote the representation of individuals belonging to the Acadian minority. The Attorney General, by letter to the Commission’s chair, stated that the Commission’s Interim Report was “null and void” for non-compliance with the Terms of Reference, and directed the Commission to prepare another Interim Report.

The Commission then wrote a new Interim Report, followed by a Final Report, that recommended the elimination of the electoral districts of Clare, Argyle and Richmond. By S.N.S. 2012, c. 61, s. 1 , the Legislature enacted the electoral boundaries that were recommended in the Final Report. Issues: In 2014, by Order in Council under the Constitutional Questions Act , R.S.N.S. 1989, c. 89, the Governor in Council referred two questions for the opinion of the Court of Appeal: 1. Does

Section 1 of

Chapter 61 of the Acts of Nova Scotia 2012 (a copy of which is attached as

Schedule ‘A’), by which provisions the recommendations tendered by the Electoral Boundaries Commission by its Final Report (a copy of which is attached as

Schedule ‘B’) to the House of Assembly were enacted, violate

Section 3 of the Canadian Charter of Rights and Freedoms by abolishment of the electoral districts of Clare, Argyle and Richmond? 2. If the answer to question 1 is ‘yes’, is the impugned legislation saved by operation of

section 1 of the Charter of Rights and Freedoms ?

Result: The Court of Appeal answered Yes to Question #1, and No to Question #2. Question #1:

Section 3 of the Charter requires that electoral boundaries reflect effective representation. The Supreme Court of Canada has explained that effective representation involves a balance of voter parity, as the primary factor, with countervailing criteria that may include minority representation and cultural identity. There is no constitutional requirement that there be an independent boundaries commission. But whatever body is authorized by law to fashion the boundaries must be allowed to perform the balance of criteria, that is contemplated by s. 3 of the Charter as interpreted by the Supreme Court of Canada, to assess effective representation.

Section 5 of the House of Assembly Act prescribes that, in Nova Scotia, the body which recommends boundaries is the Independent Electoral Boundaries Commission, not the Attorney General, Government or Select Committee. The Attorney General’s intervention prevented the Commission from performing the balancing exercise required by s. 3 of the Charter to assess effective representation for the electors in Clare, Argyle and Richmond.

The Attorney General’s intervention led to a Final Report by the Commission that did not represent the authentic view of the Commission on the effective representation of those electors, and to the enactment of those recommendations from that Final Report. Consequently, the enactment of those boundaries violated s. 3 of the Charter . Question #2: The legislative objective was to implement the constitutional principles of effective representation with the assistance of an Independent Electoral Boundaries Commission as contemplated by s. 5 of the House of Assembly Act .

The Attorney General’s intervention was not rationally connected to the legislative objective. Neither did the consequences of the Attorney General’s intervention minimally impair the Charter right. Nothing in the House of Assembly Act contemplates that the Attorney General may derail the statutory process by declaring the Interim Report null and void. The objective of s. 5, enacted in 1992, was to replace the former system, whereby the Government could dictate the principles of effective representation, with a nonpartisan system of independent recommendations.

The proposition that the Attorney General or the Select Committee, which is controlled by the Government, may dictate binding rulings on core issues of effective representation is not rationally connected with the legislative objective.

Section 5 prescribed that the Commission’s Interim Report should proceed to further public hearings, to be followed by a Final Report, and that the recommendations in the Final Report be introduced in as a Government Bill in the House of Assembly.

Section 5 contemplates that, after the Bill’s introduction in the House, the Government may amend the Bill. Notwithstanding any recommendations in the Commission’s Final Report, by following the process in s. 5, the Government could have amended the Bill to abolish the electoral districts of Clare, Argyle and Richmond. That was the process, rationally connected to the legislative objective, which would minimally impair the Charter right. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 63 pages.

Nova Scotia Court of Appeal Citation: Reference re the Final Report of the Electoral Boundaries Commission , 2017 NSCA 10 Date: 20170124 Docket: CA 432219 Registry: Halifax IN THE MATTER OF

Section 3 of the Constitutional Questions Act , R.S.N.S. 1989, c. 89; AND IN THE MATTER OF a Reference by the Governor in Council concerning the September 24, 2012 Final Report of the Electoral Boundaries Commission and

Section 1 of the House of Assembly Act ,

Chapter 61 of the Acts of Nova Scotia , 2012, as set out in Order in Council 2014-414, dated October 1, 2014

Judges: Reference Heard: Fichaud, Saunders, Oland, Bryson and Bourgeois, JJ.A. September 20-21, 2016, in Halifax, Nova Scotia Held: The questions on the Reference are answered Yes to question #1, and No to question #2, per reasons for judgment of the Court Counsel: Edward A. Gores, Q.C. and Debbie Brown, for the Attorney General of Nova Scotia Michel Doucet, Q.C., Réal J. Boudreau and Réjean Aucoin, Q.C. for the Intervenor, Fédération Acadienne de la Nouvelle-Écosse Reasons of the Court: [ 1 ] This is a Reference.

The Court is asked (1) whether the abolition, in 2012, of the former provincial electoral ridings of Clare, Argyle and Richmond infringed s. 3 of the Canadian Charter of Rights and Freedoms and, if so, (2) whether the infringement is justified under s. 1 of the Charter . [ 2 ] Electoral boundaries should achieve “effective representation”. This is a constitutional right of citizens in s. 3 of the Charter . It is not a policy option for the Government.

On this Reference, the analysis turns on the standards that govern the implementation of the constitutional principle of effective representation. [ 3 ] Effective representation derives from a balance of criteria, broadly described by the Supreme Court of Canada, that are deduced from s. 3 . The equilibrium is applied to the circumstances on the electoral map. It is a normative and contextual inquiry whose outcome may be in the eye of the beholder. Reasonable observers may disagree.

So it is crucial to identify who is assigned the inquiry. [ 4 ] The machinery for fixing electoral boundaries is legislative, and it varies among jurisdictions. An independent boundaries commission is common, though not constitutionally required. The constant is that the legally authorized body must be permitted to consider the constitutional criteria of effective representation. [ 5 ] After the fact, the courts may be asked to determine whether the legislated boundaries deny effective representation under s. 3 .

The courts apply a standard of reasonable deference to the enacted boundaries . [ 6 ] This means that, in a boundaries case, the odds favour the status quo . It is the incumbent view of effective representation that attracts judicial deference. It also means that an artificially distorted expression of that view, by the body which was tasked with balancing the constitutional criteria, can deform the implementation of the constitutional imperative in s. 3 .

On this Reference, a critical issue is whether the body that was authorized to appraise the criteria of effective representation was thwarted in the performance of its constitutional mandate. 1.

Summary of Background [ 7 ] Nova Scotia’s House of Assembly Act , s. 5, says that, every ten years, an “independent” Electoral Boundaries Commission is to conduct hearings, prepare a preliminary report with provisional suggested boundaries, hold further hearings to gauge the reaction, then submit a final report that recommends electoral boundaries. The Commission’s mandate blends the constitutional principles of effective representation, that are derived from s. 3 of the Charter , with the terms of reference that were drafted by a select committee of the House of Assembly.

The House of Assembly Act obligates the Government to introduce a bill with the boundaries recommended by the Commission’s final report. Then, according to the House’s normal procedures, the bill may be amended before passage. [ 8 ] In 1992 and 2002, Nova Scotia’s decennial Electoral Boundaries Commissions recommended three ridings – the significantly Acadian constituencies of Clare, Argyle and Richmond – that would have notably less than the average population ratio for Nova Scotia’s ridings generally. The reason was to encourage the participation in the Legislature by individuals belonging to the Acadian

minority. The Commissions noted that, for effective representation, though parity of voting power was the primary factor, the promotionof minority representation and cultural identity were countervailing criteria that had been approved by the Supreme Court of Canada. In1992 and 2002, the Commissions’ recommendations enjoyed smooth passage by the Legislature. [9] In 2012, events took a turn. [10] The Select Committee’s Terms of Reference to the 2012 Commission excluded the option of maintaining these protectedridings. All ridings in Nova Scotia were to satisfy the same maximum variance of population ratio.

It was clear from the outset that Clare,Argyle and Richmond offended the prescribed maximum variance. [11] Nonetheless, the Commission’s Interim Report recommended the continuation of Clare, Argyle and Richmond. TheCommission drew its

interpretation from the constitutional principles of effective representation that, in the Commission’s view,informed its mandate. The Commission relied particularly on the criteria of minority representation and cultural identity, cited in theleading Supreme Court decision. [12] The Attorney General, on the other hand, took the view that the Commission had violated the Terms of Reference with a roguerecommendation. The Attorney General, by letter, informed the Commission that the Interim Report was “null and void”, and directedthe Commission to prepare a new and compliant interim report.

Nothing in the House of Assembly Act said the Government had theauthority to void an interim report. [13] The Commission then wrote a Revised Interim Report, followed by a Final Report, that recommended the elimination of theprotected ridings, as the Attorney General had directed.

From the three 2012 reports, it is apparent that this recommendation was not theCommission’s authentic view of effective representation for constituents of Clare, Argyle and Richmond. [14] In December of 2012, the Legislature enacted the boundaries from the Final Report, meaning the three protected ridingsdisappeared. [15] In October 2014, an Order in Council asked this Court to advise whether the abolition of the three electoral districts infringes s.3 of the Charter and, if so, whether the infringement is justified under s. 1 of the Charter. [16] Our analysis will follow this path: • In 1991, the Supreme Court of Canada’s definition of “effective representation” in the Carter decision. • In 1992, Nova Scotia’s response to Carter with the enactment of the system involving electoral boundaryrecommendations, once every decade, by an Independent Electoral Boundaries Commission. • The 1992 and 2002 recommendations by the Independent Electoral Boundaries Commissions, and their enactment. • The events during the 2012 electoral boundaries revision that led to this reference. • An in depth analysis of Carter’s constitutional principles of effective representation. • The application of those principles to the events in Nova Scotia during the 2012 boundaries revision. • Consideration of the particular submissions of the Attorney General on this Reference respecting “tight guidelines”,“process” and parliamentary privilege. • The Court’s conclusion on Question # 1 - whether there is an infringement of s. 3 of the Charter. • Consideration of Question # 2 - whether an infringement is justified under s. 1 of the Charter. [17] The Attorney General was involved with the events in 2012.

The Attorney General also is a party to this Reference. Toavoid confusion, we will use “Province” to denote the Attorney General as a litigant. 2. “Effective Representation” -

Section 3 and Carter (1991) [18]

Section 3 of the Canadian Charter of Rights and Freedoms is headed “Democratic Rights”. It says every citizen has “the rightto vote in an election of members of the House of Commons or of a legislative assembly”. [19]

Section 3’s “democratic” reach extends beyond the polling booth. Early on, the courts’ purposive

interpretation of s. 3 impactedelectoral boundaries. First was the decision of Chief Justice McLachlin, then of the British Columbia Supreme Court, in Dixon v. British Columbia (Attorney General) (1989), (BC SC), 59 D.L.R. (4th) 247. Next was Reference Re Prov. ElectoralBoundaries (Sask.), (SCC), [1991] 2 S.C.R. 158 (commonly called “Carter”), that overturned (1991), (SK CA), 78 D.L.R. (4th) 449 (Sask. C.A.), on the Government of Saskatchewan’s electoral boundaries reference. [20] In Carter, Justice McLachlin, as she then was, for the majority, explained the governing principle of “effective representation”: C.

The Meaning of the Right to Vote 49 It is my conclusion that the purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but theright to “effective representation”. …

50 What are the conditions of effective representation?

The first is relative parity of voting power. … 51 But parity of voting power, though of prime importance, is not the only factor to be taken into account in ensuring effective representation. … 52 Notwithstanding the fact that the value of a citizen’s vote should not be unduly diluted, it is a practical fact that effective representation often cannot be achieved without taking into account countervailing factors. … 54 Secondly, such relative parity as may be possible of achievement may prove undesirable because it has the effect of detracting from the primary goal of effective representation.

Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic. … 55 It emerges therefore that deviations from absolute voter parity may be justified on the grounds of practical impossibility or the provision of more effective representation.

Beyond this, dilution of one citizen’s vote as compared to another’s should not be countenanced. … … 60 To return to the metaphor of the living tree, our system is rooted in the tradition of effective representation and not in the tradition of absolute or near absolute voter parity. It is this tradition that defines the general ambit of the right to vote. … … 63 In

summary, I am satisfied that the precepts which govern the

interpretation of Charter rights support the conclusion that the right to vote should be defined as guaranteeing the right to effective representation [ 21 ] Later (paras. 65-75) we will expand on Carter ’s approach to electoral boundaries. 3. Nova Scotia’s Response to Carter (1991-92) [ 22 ] After Carter , it was clear that electoral boundaries were no longer the exclusive domain of the legislatures or the playground of majority governments. Boundaries that offended the constitutional principles of s. 3 could be declared as having no force and effect under s. 52(1) of the Constitution Act, 1982 . That prospect left some Nova Scotian constituencies in a vulnerable spot. An

article from the Province’s materials for this Reference elaborates: House of Assembly Act The Saskatchewan decision [referring to the Saskatchewan Court of Appeal’s decision in Carter ] put Nova Scotia’s electoral map in constitutional jeopardy. For example, by 1991 the extent of malapportionment was significant, ranging from 5,000 constituents in Cumberland Centre to over 20,000 in urban ridings like Sackville and Dartmouth East – a difference of 400 percent! The product of a major Liberal gerrymander in 1978, and a minor Conservative one in 1981, the map was already in political jeopardy.

The new Conservative leader and premier, Donald Cameron, had promised electoral reform in his leadership campaign, including a “nonpartisan” redistribution of seats. Thus the events in Saskatchewan added urgency to the leader’s publicly-expressed intentions, and undoubtedly helped the government to obtain an all-party agreement to the creation (May of 1991) of a Legislative Select Committee on Establishing an Electoral Boundaries Commission. … [Jennifer Smith and Ronald G.

Landes, “Entitlement versus Variance Models in the Determination of Canadian Electoral Boundaries”, International Journal of Canadian Studies 17, Spring 1998, pages 21-36, at pages 22-23] [ 23 ] Nova Scotia responded to Carter by changing its approach to electoral boundaries. The House of Assembly Act , R.S.N.S. 1989, c. 210 defined the boundaries. Previous boundary revisions had come from amending bills drafted by the Government.

The new approach mandated an “independent” commission every ten years to review and recommend boundaries, which the Act obliged the Government to introduce in the House as an amendment to the previously enacted boundaries. The change objectified the partisanship of electoral mapping and incorporated the principles of effective representation. [ 24 ] The Province’s factum summarizes this departure: 5. Nova Scotia changed the way electoral boundaries were created in 1991.

For the first time in Nova Scotian history, by an all-party agreement, an impartial and independent Electoral Boundaries Commission (the “Commission”) was established for the purpose of reviewing and redistributing electoral boundaries through a nonpartisan process. With the new transparent process, all communication with the Commission became part of the public record.

An independent commission would conduct a boundary review at least every ten years. [ 25 ] The policy was implemented with the following steps. [ 26 ] On July 3, 1991, a Select Committee of the House of Assembly reported to the House with a recommendation for a Provincial Electoral Boundaries Commission, to be chaired by Professor Ronald Landes, with five other members: the Honourable C. Denne Burchell, Professor Jennifer Smith, Ms. Carolyn G. Thomas, Ms. Alphonsine Saulnier and Mr. Sherman Zwicker. Justice McLachlin’s ruling in Carter had been released a month earlier.

The Select Committee’s Terms of Reference to the Commission paraphrased Carter ’s principles of effective representation: In keeping with the constitutional right to “effective representation”, the Committee recommends the following terms of reference for the

Provincial Boundaries Commission in determining the province’s electoral boundaries: 1. The primary factors to be considered by the Boundaries Commission to ensure “effective representation” are: (

i) of paramount importance, relative parity of voting power achieved through constituencies of equal population to the extent reasonably possible; (ii) geography; (iii) community history; (iv) community interests; (

v) minority representation, including, in particular, representation of the Acadian, Black and Mi’kmaq peoples of Nova Scotia; (vi) population rate of growth projections. The Commission is to be guided by the principle that deviations from parity of voting power are only justified on the ground that they contribute to better government of the populace as a whole, giving due weight to regional issues within the populace and geographic factors within the territory governed. 2.

After considering the preceding criteria, county boundaries should be followed where desirable, reflecting the historical use of county lines in delineating Nova Scotia’s electoral map. 3. Based on the most recent population statistics available to the Provincial Boundaries Commission, the Commission is to delineate electoral boundaries to achieve a 52-member Legislative Assembly with an additional member to represent the Mi’kmaq people of Nova Scotia.

The Provincial Boundaries Commission is not to be governed by a predetermined population deviation factor or by a predetermined split between urban and rural ridings.

In considering the factor of minority representation, the Commission shall seek out the advice, support and cooperation of, in particular, representatives of the Black, Native and Acadian communities of the Province. … [ 27 ] On July 16, 1991, Order-in-Council 91-844 appointed the Electoral Boundaries Commission under the Public Inquiries Act , R.S.N.S. 1989, c. 372, and referred the Select Committee’s Report to the Commission as the mandate. [ 28 ] In the autumn of 1991, the Commission undertook 18 public hearings across the Province involving 121 oral presentations, and received some 100 written submissions. [ 29 ] On March 6, 1992, the Commission submitted its Report to the Speaker of the House of Assembly.

The Report is significant to this Reference. The Report not only suggested boundaries. It also recommended, and set the tone for the system of independent electoral boundaries review that the Legislature enacted soon thereafter and remains today. The following extracts pertain to the issues that arise in this Reference. 1. The Report emphasized the Commission’s independence and explained the Commission’s process to safeguard its independence: The drawing of constituency boundaries for the Nova Scotia House of Assembly is a political act with important political consequences.

The political implications of redistribution provide the best reason why the process must be nonpartisan. As the first independent boundaries commission in the history of Nova Scotia, created by all-party agreement, the 1992 Provincial Electoral Boundaries Commission is an important milestone in the development of political representation in Nova Scotia. The provincial Electoral Boundaries Commission adopted the following procedures to ensure that the process of redistribution would be nonpartisan. First, all contacts with the Commission were considered to be part of the public record.

The public hearings held by the Commission were recorded and transcribed, with the transcripts published for archival purposes. Any letters or written submissions to the Commission were also considered part of the public record, again published for archival purposes. Second, individual and/or private submissions or meetings with the Commission as a whole or with individual members of the Commission dealing with the substance of our findings were not allowed.

Third, no consideration of the partisan implications of our recommendations was discussed at any time by the Commission, either in the drawing of specific boundaries or in determining the general principles that govern redistribution. Very simply put, party standings and partisan implications were not part of the deliberations of the Provincial Electoral Boundaries Commission. [p. 1] 2.

The Report explained how the ideal of fair representation reflects political diversity by recognizing minority interests: In seeking a nonpartisan pattern of fair representation for all concerned, the main theme of the Commission’s Report is the broadest pattern of community of interest, namely, what is good for the province of Nova Scotia as a whole. The current view of representation held by the average voter and MLA alike is too narrowly focused on particular individual and constituency concerns.

Only a broader view of political representation will allow for a fair pattern of constituency boundaries reflecting the diversity of Nova Scotia’s political culture. At the same time, within the general concept of Nova Scotia’s overall community of interest, particular interests must be recognized as well, namely, the Acadian, Black and Mi’kmaq communities. [p. 2] 3. The Report identified two underlying concerns to be addressed by electoral boundaries review:

In any electoral redistribution, two key questions are often raised: first, are the political parties and the legislature directly involved in the drawing of the new constituency boundaries and second, are the constituencies of comparable, if not equal, population size? In British-style parliamentary systems, the traditional pattern used in an electoral boundary redistribution is for the legislature itself to carry out the process of boundary change.

Such a procedure (used in Nova Scotia until 1992 and in Canada federally until 1964) often resulted in charges of gerrymandering , that is, the drawing of constituency boundaries for explicit partisan gain. As explained in our opening comments, the Commission, as the first independent boundaries commission in Nova Scotia history, has sought to eliminate gerrymandering as an element of the electoral redistribution process. The second key issue concerns the population size of each constituency and the relevant concept is that of malapportionment.

Malapportionment means constituencies that are highly unequal in terms of population. … [pp. 3-4] [bolding in original] 4. After quoting at length from Justice McLachlin’s reasons in Carter , the Report accepted that the Commission’s mandate was to implement the principles of “effective representation” under s. 3 of the Charter : Combined with the right to vote in

section three of the Canadian Charter of Rights and Freedoms that was adopted in 1982, the Supreme Court decision in the Carter case in 1991 has altered the process of electoral redistributions in Canada in several key ways. First, the idea of “effective representation” has become the overriding goal and it is premised on “relative parity of voting power”, as conditioned by factors such as geography and community interests. Second, an electoral redistribution for the provincial legislature is subject to both the Charter and to possible review by the Supreme Court of Canada.

Thus, any electoral redistribution produced after June 6, 1991 is constrained by this new context of electoral reform. [p. 9] 5. The Report then applied the Commission’s view of effective representation to individuals in Nova Scotia’s Acadian and African Nova Scotian communities. The Commission recommended five protected constituencies in the Acadian regions of Clare, Richmond and Argyle, in the African Nova Scotian region of Preston, and (for geographical reasons unrelated to minority representation) in Victoria. The Report explained: 6.

In seeking to encourage more effective representation for the Acadian and Black communities, the Commission felt that a fair and nonpartisan drawing of constituency boundaries would produce acceptable results. While geographic constituencies fairly drawn in areas of minority population concentration will not necessarily guarantee that representatives of the group will be elected to the House of Assembly, they will certainly make such a result much more likely.

At a minimum, they will afford to the minority a substantially greater influence upon the electoral result and the quality of representation. [p. 11] … … Factors such as community interests or geography condition but do not cancel the importance of the first criterion, “relative parity of voting power”.

At the same time, minority group representation might be encouraged by creating somewhat smaller constituencies in terms of voters or population in order to generate more “effective representation” for those groups. [p. 16] … … The concept of a protected constituency refers to creating constituencies that might differ substantially from the concept of relative parity of voting power, due to such factors as geography, community history, community interests and minority representation.

The Provincial Electoral Boundaries Commission concluded that a fair and nonpartisan drawing of constituency boundary lines, based around areas of minority group population concentration, was the best method for encouraging the effective representation of such groups in the Nova Scotia House of Assembly. Thus, there are no specifically-designated Acadian seats, nor is there a specifically- designated Black seat. Instead, boundary lines are recommended that encourage, but do not guarantee, minority group representatives in the House of Assembly.

The seat entitlement or population size for such protected constituencies would be less than that for the ideal average-sized constituency. The first protected seat considered was one designed to promote more effective representation of the Black community in the Legislature. The Commission concluded that this proposed seat should consolidate the Black communities in the Preston area within one provincial constituency and that its territorial base should be approximately that of the municipal districts 7 and 8.

The population size should be from one-half to two-thirds of an average-sized seat, with a Black population concentration of between 25 to 35 percent of the total constituency. The next question confronted by the Commission was how to promote the effective representation of the Acadian community in the House of Assembly. Given the population concentration, as well as the dispersion of the Acadian community, the Commission decided to retain unchanged the existing constituencies of Clare, Richmond, and Argyle.

These constituencies are not designated-Acadian seats, but, given the population patterns in these ridings, maintaining the existing boundaries will encourage, but not guarantee, Acadian representatives in the Nova Scotia House of Assembly. [pp. 28-29] [bolding in original] … The proposed seats created to encourage minority representation in the House of Assembly are all smaller than the average size of ideal constituencies.

On this point the Commission would refer back to Nova Scotia’s community of interest, in that minorities have a greater need for political representation than the majority, which will predominate no matter what pattern of constituencies is recommended. In political terms, however, the overrepresentation of minorities has to be tempered by a realization that the majority has legitimate rights and demands for political representation as well. As usual, the tradeoff between minority rights and majority rule is a judgmental one

that must be tempered by understanding and respect for all members of the political community. [p. 38] 6. The Commission considered the promotion of representation from the Mi’kmaq community. But there was no consensus inthe Mi’kmaq community on the structure for a dedicated seat. The Commission’s Report said: At the request of the Mi’kmaq community, no recommendation as to how a native seat should be constituted is being made at this time.[p. 33] 7.

The Report concluded with a recommendation that the independent process recur every ten years: The Provincial Electoral Boundaries Commission hereby recommends that all future boundary revisions be carried out by anIndependent Boundaries Commission and that such required reviews take place once every ten years, based on the Canadian census. …[p. 81] [30] The Legislature implemented the Report by amending the House of Assembly Act. On April 16, 1992, Bill 203 received firstreading. The House invited a supplementary report, on several items, from the Electoral Boundaries Commission.

The House’s LawAmendments Committee accepted the Commission’s supplementary report. The amendment to the Act received Royal Assent on June30, 1992 and came into force on August 1, 1992: R.S.N.S. (1992 Supp.), c. 21. Some of these events were discussed in Bedford (Town) v.Nova Scotia (Law Amendments Committee) (1994), 1994 NSCA 56 , 147 N.S.R. (2d) 161 (S.C.A.D.), 1994 CarswellNS 460,paras. 1-7, allowing the appeal from (1993), (NS SC), 120 N.S.R. (2d) 251 (S.C.T.D.), 1993 CarswellNS 285, paras.6-13. [31] The House of Assembly Act, s. 4, as amended, described the 52 electoral districts.

Then the newly-enacted s. 5 prescribed thefuture process. Thereafter, by law, the electoral boundaries commission was to be “independent”: 5

(1) In this section, “Commission” means the Independent Electoral Boundaries Commission appointed pursuant to thisSection.

(2) The electoral districts described in

Section 4 have effect until new electoral districts are approved pursuant to this Section.

(3) No later than the thirty-first day of March, 2002, and, thereafter, within ten years after the last change in electoral districtsmade pursuant to this Section, and at least once in every ten years from the thirty-first day of March, 2002, an Independent ElectoralBoundaries Commission shall be appointed and issued terms of reference by a select committee of the House constituted to appointmembers of the Commission.

(4) The Commission shall prepare, for approval by the House, a report recommending the boundaries and names for theelectoral districts comprising the House.

(5) The terms of reference of the Commission shall provide that (

a) the Commission is broadly representative of the population of the Province; (

b) the Commission prepare a preliminary report and hold public hearings prior to preparing the preliminary report; and (

c) following the preparation of the preliminary report the Commission hold further public hearings prior to preparing its final report.

(6) The final report of the Commission shall be laid before the House, if the House is then sitting, and the Premier, or thePremier’s designate, shall table the report in the House on the next sitting day.

(7) If the House is not sitting when the final report of the Commission is completed, the final report of the Commission shallbe filed with the Clerk of the House and the Premier, or the Premier’s designate, shall table the final report in the House within ten daysafter the House next sits.

(8) Within ten sitting days after the final report of the Commission is tabled in the House pursuant to subsection (6) or (7), theGovernment shall introduce legislation to implement the recommendations contained in the final report of the Commission. [32] Three features of s. 5 are noteworthy for the issues in this Reference: 1.

Section 5(3) says that the Select Committee is to appoint members of the Commission and issue terms of reference.Section 5(5) then states what the terms of reference “shall provide”: a broadly representative Commission; that the Commission wouldhold public hearings, then issue a preliminary report; that the Commission would then hold further public hearings, followed by a finalreport.

Section 5 does not say that the Select Committee’s terms of reference are to include legally binding rulings on the Charter-sourced criteria of effective representation. 2. Under s. 5(5)(c), after the preliminary report, the next step is further public hearings.

Section 5 does not provide that thepreliminary report is subject to a validation ruling by the Attorney General before those further hearings. 3. Section 5(8) requires the Government merely to introduce the Bill with the Independent Electoral BoundariesCommission’s recommended boundaries. The Commission’s function is to table an independent view for consideration and debate. TheHouse of Assembly Act did not delegate to the Commission the ultimate decision on boundaries, to enact by regulation. Neither did s. 5require the Government or House to do anything after the Bill was introduced.

The Commission’s recommended boundaries wouldreceive first reading as a Government Bill that could then be amended according to the House’s process.

[ 33 ] The 1992 amendment to the House of Assembly Act also declared the House’s intention to add, at a future date, a fifty-third seat for a representative of the Mi’kmaq people: 6

(1) The House hereby declares its intention to include as an additional member a person who represents the Mi’kmaq people, such member to be chosen and to sit in a manner and upon terms agreed to and approved by representatives of the Mi’kmaq people.

(2) Until the additional member referred to in subsection (1) is included, the Premier, the Leader of the Official Opposition and the leader of a recognized party shall meet at least annually with representatives of the Mi’kmaq people concerning the nature of Mi’kmaq representation in accordance with the wishes of the Mi’kmaq people and the Premier shall report annually to the House on the status of the consultations. [ 34 ] This statutory regime was in place for the next boundary review a decade later. 4.

The 2002 Boundaries Review [ 35 ] On November 30, 2001, further to s. 5(3) of the House of Assembly Act , the House’s Select Committee nominated the next Independent Electoral Boundaries Commission. Dr. Colin Dodds chaired. The other eight members included Dr. Landes, the 1992 chair.

Citing Carter ’s principles of effective representation, the Select Committee’s Terms of Reference to the Commission included: In keeping with the constitutional right to effective representation, the Committee recommends the following terms of reference for the Provincial Boundaries Commission in determining the Province’s electoral boundaries: The primary factors to be considered by the Provincial Boundaries Commission to ensure effective representation are: 1. of paramount importance, relative parity of voting power achieved through constituencies of equal electoral population to the extent reasonably possible; 2. geography, and in particular the difficulty in representing a large physical area; 3. community history; 4. community interests; 5. minority representation, including, in particular, representation of the Acadian and Black peoples of Nova Scotia.

Based on the most recent population and electoral statistics available to the Provincial Boundaries Commission, the Commission is to delineate electoral boundaries to achieve a 52-member Legislative Assembly, not counting any additional member authorized pursuant to

Section 6 of the House of Assembly Act . The Provincial Boundaries Commission is to be governed by the general principle that a constituency should not deviate by greater or lesser than 25 per cent from the average number of electors per constituency, except in extraordinary circumstances. Extraordinary circumstances are the desire to promote minority representation by Nova Scotia’s Acadian and Black communities.

The Commission is to be guided by the principle that deviations from parity of voting power are only justified on the ground that they contribute to better government of the populace as a whole, giving due weight to regional issues within the populace and geographic factors within the territory governed. … The Commission will hold public meetings and prepare a preliminary report. After making this preliminary report public, the Commission will hold further public meetings and will then prepare a final report. … [ 36 ] The 2002 Terms of Reference differed in two material respects from those to the 1992 Commission.

First, further to ss. 5(5)(

b) and (

c) of the House of Assembly Act , the Commission was directed to prepare a preliminary report, then solicit further public input before preparing its final report. Second, in 2002 there was a cap of 25% deviation from the average population ratio among constituencies, but the protected constituencies for Acadian and African Nova Scotian communities were excepted from the cap.

The 1992 Terms of Reference had not mentioned a preliminary report or a 25% cap. [ 37 ] The continuum of reasoning that spans the Reports of the 1992, 2002 and 2012 Commissions is a helpful touchstone for the analysis of the issues before this Court. We will track the 2002 Commission’s views on the issues that pertain to the Reference: 1. The Commission’s 2002 Final Report noted the effectiveness of the preliminary report (described by the Commission as its “Interim Report”), followed by a second round of presentations before the final report.

Before its Interim Report, the Commission conducted 14 public hearings, with oral presentations from 72 persons, and received 73 written submissions. After its Interim Report, the Commission’s culminating round involved 11 public hearings, 152 presenters and 179 written submissions. The presenters at both stages included elected members of the House of Assembly. The Final Report explained how the Interim Report had been a “work in progress” that, after the further public hearings, was significantly improved in the Final Report. The changes “demonstrate the considerable impact

of the public’s role in the electoral boundary revision process”: The second significant impact of the Commission’s consultative process can be seen in changes made to its recommendations between the Commission’s Interim and Final Reports .

As the Commission stressed in its Interim Report , the initial recommendations of the Commission were a “work in progress rather than a series of decisions cast in concrete.” The Commission listened to the public’s reaction to its Interim Report , reviewed transcripts from the public hearings, analyzed the submissions it received, and altered its recommendations in a number of areas. In its Final Report the Commission changed its recommendations from those of the Interim Report in a number of respects.

To be specific, these were the number of constituencies which fell under its “extraordinary circumstances clause,” the size (both population and geography) of the recommended constituencies based on Victoria and Guysborough Counties, the allocation of seats along both the South Shore and Eastern Shore, the boundary line between Cumberland North and Cumberland South, and the distribution and population size of a number of the constituencies in Halifax County.

Such significant changes in the Commission’s recommendations between its Interim and Final Reports demonstrate the considerable impact of the public’s role in the electoral boundary revision process. [pp. 18-19] [Commission’s underlining] 2. The Commission’s Final Report set out its measures “to ensure the independence and non-partisanship of the Commission” (p. 4). These resembled those mentioned in the 1992 Commission’s Report.

Additionally, because of the new two-stepped process of interim and final reports, the 2002 Final Report said: With respect to the public consultation process, the Commission agreed it would not consider any proposed boundary changes for its Interim Report until after the First Round of Public Hearings had been completed.

Similarly, no proposed boundary changes were recommended by the Commission for its Final Report until after the Second Round of Public Hearings had been completed, until transcripts of those hearings were reviewed by the Commission members, and until the Commission had reviewed all written submissions. Such procedures were adopted by the Commission to ensure that the public consultation process was real and effective. [pp. 4-5] [Commission’s underlining] 3.

The 2002 Final Report acknowledged the Commission’s dually sourced mandate that stems from the Charter ’s principles of effective representation, discussed in Carter , and the Select Committee’s Terms of Reference: … In particular, the Commission, based on its Terms of Reference, which are themselves grounded on the Canadian Charter of Rights and Freedoms (

Section 3 ) – as interpreted by the Supreme Court of Canada in the Carter case ( Reference re Provincial Electoral Boundaries [Saskatchewan] ), has made recommendations which it feels will provide a pattern of effective representation for the province of Nova Scotia as a whole – in other words, just boundaries. [p. 2] … The Provincial Electoral Boundaries Commission spent a considerable amount of time discussing its Terms of Reference and the Carter case.

The Commission’s Terms of Reference are based on, drawn directly from, and infused with the Carter case. [p. 6] … Deviations from voter parity, based on such factors as geography, community interests, and minority representation, must be justifiable by providing or contributing “to better government of the populace as a whole.” Thus, the question becomes one of how extensive are the deviations allowed from parity of voting power by the concept of relative parity of voting power.

The Canadian practice, both before and after the Canadian Charter of Rights and Freedoms and the Carter decision, has been to use a ± factor (plus-or-minus factor) as a way of operationalizing the idea of relative parity of voting power. A ± factor is the percentage by which a given constituency may be over or under the average constituency (parity of voting power), based on either population or electors. The ± factor allows for recognition of factors, such as geography, community interests, community history, and minority representation, in the drawing of electoral boundaries.

In the Carter case, the Supreme Court of Canada did not approve of, or stipulate, any specific ± factor that would be automatically acceptable. The constitutionality of a specific ± factor (e.g., 10 percent, 25 percent) is dependent on how it has been used in a particular electoral redistribution.

As a general rule, according to the Supreme Court of Canada, any deviations greater than the specified ± factor (assuming one has been established) would have to be based and justified “on the ground that they contribute to better government of the populace as a whole. …” The impact of the Supreme Court’s ruling in the Carter case has been significant in the drawing of electoral boundaries in Canada: It has asserted the power of judicial review over both provincial and federal electoral redistributions and it has specified the factors that may need to be considered in such exercises.

However, as mentioned earlier, the Carter case did not define or approve of a specific ± factor a priori , nor did it define what it meant by such key terms as relative parity of voting power or community interests. As a result, such concepts are “elastic” in terms of both their

interpretation and application in specific contexts. The legislative-mandated Terms of Reference given to the Provincial Electoral Boundaries Commission reflect the Nova Scotia House of Assembly’s assessment of how the Supreme Court’s decision in the Carter case is to be applied in reviewing provincial electoral boundaries in the province of Nova Scotia. [pp. 8-9] 4. The Commission turned to the constituencies that the 1992 Report had “protected” to enhance minority representation. The 2002 Commission’s Interim Report recommended that only Clare, Argyle and Preston retain protected status.

After the further public hearings, the Commission returned Richmond to the list. The Final Report recommended that (1) the constituencies of Clare, Argyle, Richmond and Preston be unchanged, but (2) the term “protected” be dropped, and (3) the next Commission re-evaluate the approach to encouraging minority representation: The Commission reviewed the use of the five protected constituencies created in 1992. The Commission decided not to continue the term “protected constituencies,” but instead use the “extraordinary circumstances clause” contained in its Terms of Reference. …

In three counties the percentage of the population whose mother tongue is French exceeded 20 percent: Digby (33 percent), Richmond (29 percent) and Yarmouth (23 percent). Within the District of Clare in Digby County, 70 percent of the population have French as their mother tongue, while in the District of Argyle within Yarmouth County, that percentage is 54 percent. 2.

The Commission recommends that the four constituencies for minority representation be retained as they currently exist (Clare, Argyle, Richmond, and Preston). (In its Interim Report , the Commission had recommended three constituencies for inclusion under its “extraordinary circumstances clause:” Clare, Argyle and Preston.

The Victoria riding was the fifth protected constituency in 1992, but the basis of protection was geography, which is not an “extraordinary circumstance” as specified in the current Commission’s Terms of Reference.) The use of the term “protected constituencies” in the 1992 redistribution and the current Commission’s “extraordinary circumstances clause” for minority representation has generated considerable public comment. The Commission feels that this method of encouraging minority representation should be re-evaluated during the next electoral redistribution. 3.

The Commission recommends, during the next electoral redistribution, that the Provincial Electoral Boundaries Commission re-evaluate the method of encouraging minority representation. [pp. 36-37] [underlining and bolding in original] [ 38 ] By S.N.S. 2002, c. 34, s. 1 , the Legislature amended the House of Assembly Act to enact the 2002 Commission’s recommended electoral boundaries. 5. The 2012 Boundaries Review [ 39 ] The next boundaries review is the subject of this Reference. [ 40 ] On November 3, 2011, the Legislature unanimously approved Resolution no. 1846: Therefore be it resolved as follows:

(1) That pursuant to Section 5(3) of the House of Assembly Act and the Rules and Forms of Procedure of the House of Assembly, this House constitute a select committee to determine no later than December 31, 2011, a. the composition of an independent Electoral Boundaries Commission; and b. the terms of reference for the commission; The Resolution named nine MLAs to the Select Committee – five from the majority Government and two each from the two Opposition parties. The Resolution appointed Mr. Ross Landry, the Attorney General and Minister of Justice, as the Chair. Another Government MLA, Mr.

Leonard Preyra, was vice-chair. [ 41 ] On December 30, 2011, the Select Committee delivered its Report to the House. The Report named eight individuals to the Independent Electoral Boundaries Commission. These included Dr. Theresa MacNeil as Chair and the 2002 Commission’s Chair, Dr. Colin Dodds, as the vice-chair. The Select Committee’s Report defined the Commission’s Terms of Reference to include: In keeping with the constitutional right of Nova Scotians to fair and effective representation, the Committee directs the Provincial Boundaries Commission to be guided by the following: 2(

a) Based on the most recent census and other population data available, the Commission delineate electoral boundaries to achieve an Assembly of not more than 52 seats, not counting any additional Member authorized pursuant to

Section 6 of the House of Assembly Act; 2(

b) Of paramount importance, relative parity of voting power must be achieved through constituencies of equal population to the extent possible; 2(

c) Deviations from parity of voting power may be justified in consideration of: i Geography, in particular, the difficulty in effectively representing a large physical area; ii Community history and interests; iii Nova Scotia’s linguistic and cultural diversity, in particular, the Province’s Acadian and African Nova Scotia population. 2(

d) Notwithstanding 2(c), no constituency may deviate by a variance greater or less than 25 per cent from the average number of electors per constituency; … 3) For greater clarity, the Commission is to be bound by

Section 5, subsections 5(4) and (5), of the House of Assembly Act. [ 42 ] Clause 2(

d) shifted the paradigm of the Terms of Reference to the earlier Commissions. The general language in 1992 and the

explicit direction in 2002, that had allowed “protected” or “extraordinary” status for the ridings of Clare, Argyle and Richmond to promote Acadian representation, and Preston to promote African Nova Scotian representation, were replaced. Those ridings would now be subject to the same maximum 25% deviation as other ridings. From the data in the 1992 and 2002 Commission Reports, it was known that all four ridings exceeded the maximum deviation. Effectively, the Select Committee had decided to abolish the protected ridings. [ 43 ] Clause 2(

d) fractured the all-party consensus that had existed since the House’s Select Committee initiated the process of independent Commissions in July 1991. [ 44 ] The Select Committee’s Report of December 30, 2011 was endorsed by the five Government MLAs on that Committee. The other four members, all Opposition MLAs, attached a “Dissenting Opinion” aimed at clause 2(d): … It had been agreed that the Terms of Reference would be modelled on the previous Boundaries Commission’s Terms of Reference.

Those terms allowed the commission to create opportunity for minority representation to provide for better representation of linguistic and/or cultural groups, (for example Acadian and African Nova Scotians) despite those constituencies having a population variance more than 25 per cent of the average electoral population. It was up to the commission whether to actually maintain the current projected seats (Argyle, Clare, Preston, and Richmond), or even to consider new protected constituencies.

The change to the wording was made between drafts four and five of the terms of reference on orders of the Vice Chair of the Select Committee without prior discussion or agreement at either the sub-committee or the Select Committee. In an email dated December 15, 2011 the Vice Chair referenced discussions of the sub-committee stating “in

section 2 I have re-ordered the directives in clusters while remaining true to the substance of the discussion.” It is our position these discussions did not take place. (email attached with consent of Select Committee) … The purpose of clause 2C(i. ii. iii) is to provide the Boundary Commission with the ability to maintain, create, and consider minority representation and geography as extraordinary circumstances for consideration. As noted, Argyle, Clare, and Richmond exist to provide for the possibility of representation by Acadian and French speaking Nova Scotians in the legislature.

As well, the constituency of Preston exists to provide the opportunity for African Nova Scotian representation focussed on the interests of one of Nova Scotia’s largest and historically-distinct African Nova Scotian communities. Previous Terms of Reference have permitted the Boundaries Commission members to make their own informed decision based on public feedback and the appropriateness of protecting linguistic, cultural and historic interests of Nova Scotia’s minority communities.

The 2002 Boundaries Commission provided for minority representation in ridings which varied from the maximum 25 per cent through the “extraordinary circumstances clause”. … Inserting the notwithstanding clause makes it impossible for the Boundary Commission to properly consider minority representation as currently known in Nova Scotia and as supported by the Supreme Court in other jurisdictions. … [ 45 ] In March and April 2012, the Independent Electoral Boundaries Commission conducted hearings across the Province. Some 116 individuals spoke. These included MLAs, provincial cabinet ministers and the Premier.

The Commission received about 130 written submissions. [ 46 ] On May 31, 2012, the Commission issued its Interim Report, i.e. the “preliminary report” directed by s. 5(5)(

b) of the House of Assembly Act . [ 47 ] In a passage titled “Interpretation of the Terms of Reference”, the Commission focused on clause 2(d): … The Terms of Reference for this Commission differ fundamentally from those given to previous commissions: … - Second, in clause 2(d), it is indicated that notwithstanding concerns about geography, community history and interests, and Nova Scotia’s linguistic and cultural diversity, constituencies may not deviate by a variance greater or less than 25 per cent from the average number of electors per constituency; and … The Commission heard various representations about how to interpret and act on its Terms of Reference.

Having discussed how to act on the Commission’s Terms of Reference at great length, the Commission decided to adopt the following course of action (the Dissenting Opinion Regarding the Commission’s

Interpretation of the Terms of Reference is expressed in Appendix H): - The Terms of Reference provided by the House of Assembly Select Committee offer guidance and direction to the Commission; - A literal

interpretation of Clause 2(

d) would require the Commission to substantially alter the boundaries of the four constituencies that have been protected for the past twenty years as a means to encourage and promote the effective political representation of the Acadian and African Nova Scotian minorities in the legislature. Removal of this protection as implied by clause 2(

d) raises significant social,

cultural, and political issues. Consequently, the Commission decided to retain the “protected constituencies” of Argyle, Clare, Preston, and Richmond (see Appendix G); … [ 48 ] The Interim Report repeated the view, expressed in the 1992 and 2002 Final Reports, that

section 3 of the Charter tasks the Commission to ensure effective representation under Carter ’s principles: The process of redrawing electoral boundaries in Nova Scotia recurs every ten years and is meant to ensure that provincial constituencies continue to reflect the constitutional right of all citizens to fair and effective representation in the legislature. Relative parity of voting power is not the only factor which government may take into account in ensuring fair and effective representation.

Quoting from the Supreme Court of Canada’s decision in the Carter case (1991) to review how the courts have dealt with the factors to consider: [… quoting extracts from Carter , paras. 52-62] The electoral redistribution process, undertaken in Nova Scotia by two independent Electoral Boundary Commissions since 1992, is fraught with challenges, some of which are unique to Nova Scotia while others are of a more general nature. … Ensuring fair and effective representation while accommodating a concern for cultural diversity and minority representation is another important consideration for the boundary redrawing exercise, one made more difficult by the territorial dispersal of minority populations in the context of the simple plurality electoral system that groups electors into single-member constituencies.

Nova Scotia’s French- speaking Acadian population is concentrated mainly in several rural communities located at the geographic extremities of the province. Its African-Nova Scotian community is also widely dispersed, though there is concentration of population in and around the area of the Prestons, on the Dartmouth side of Halifax Harbour.

In short, while relative parity of voting power remains of paramount importance, other factors impinge upon the right of all citizens to fair and effective representation, and these combine to form the background and broader context for the electoral redistribution process. [ 49 ] The Interim Report’s Appendix G explained the Commission’s reasoning for recommending the maintenance of protected ridings in Argyle, Clare and Richmond (to encourage Acadian representation) and Preston (to encourage African-Nova Scotian representation).

The Commission applied its view of Carter ’s effective representation to the circumstances that had become apparent during the Commission’s hearings: Appendix G: Maintaining “Protected Constituencies” Canada is known throughout the world for the recognition and accommodation of minority rights within its democratic and parliamentary institutions. Indeed, the Supreme Court identified this as one of the defining features of the Canadian constitutional order (see Reference re Secession of Quebec, 1998).

Nova Scotia has its own relatively recent history of recognizing and accommodating its distinctive Acadian and African Nova Scotian communities. Since 1991, the province of Nova Scotia has done this by extending special “protection” to four electoral districts. … The creation and maintenance of such electoral districts represents a choice – acknowledged or not – about how well to represent a minority group.

Ensuring “effective representation” in the House of Assembly for all Nova Scotians (which is their constitutional right and the primary purpose of the electoral redistribution exercise) requires that relative parity of voting power be balanced against other considerations, and the balance struck will vary depending upon a range of factors and circumstances.

In the judgment of the Commission, retaining the four protected constituencies for Acadians and African Nova Scotians continues to be the appropriate balance between relative voter parity and other considerations in order to best ensure that these groups receive effective representation in the Nova Scotia legislature. The protected districts in Nova Scotia were designated as such because they have a special historical significance for the province, as well as major significance for the Acadian and African Nova Scotian minorities whose political representation within the legislature they are intended to protect.

Three of the four are ridings where the Acadian population is either dominant or numerically important: Clare, Argyle, and Richmond. The fourth is the riding of Preston, where African Nova Scotians comprise a key component of the voting population. The special protection was conferred as a means of avoiding the inevitable political dilution of these minority communities within the surrounding majority (even though their overall provincial numbers would otherwise justify proportionate representation in the legislature).

While this particular mode of accommodating these specific minority groups is not without its problems (see below), it remains both a politically important and culturally significant gesture, recognizing as it does the unique place and role of these minority groups in the province’s history, and within its present cultural diversity. Like the Mi’kmaq people, the Acadian and African Nova Scotian communities have a particular cultural uniqueness and territorial basis in Nova Scotia that supports the argument for retaining a form of ‘special status’ in the electoral redistribution process.

This status follows from the fact that they constitute minority cultural communities that are indigenous to Nova Scotia, and further can be said to have fairly well-defined territorial ‘homelands’ in this province that have been continuously occupied for hundreds of years.

Their distinctiveness derives from their long evolution as ethno-linguistic (Acadian) or racial (African Nova Scotian) minorities within an English-speaking majority of predominantly British heritage, but also, just as importantly, from their unique indigenous cultures that have developed over centuries of relative isolation as coherent communities (due to remote rural locale and/or social exclusion).

In short, these minority cultures are both distinctively Nova Scotian and deeply rooted in specific, territorially-based communities within the province. … In effect, the elected representatives from the protected ridings in Nova Scotia have a mandate and a responsibility to perform a dual role both within and outside the legislature: they have a duty to be constituency representatives like other members of the legislature, but they also act as political representatives for the extended cultural community they represent. Thus, Acadians across the province, whether

they live in the three protected ridings or not, depend on these protected political districts and the elected representatives they send to the legislature to play an important role in safeguarding the interests and identities associated with the Acadian language, culture and tradition.

The same can be said for the riding of Preston, which, whether it elects an African Nova Scotian to the legislature or not (an outcome dependent in large part upon decisions made by political parties through their candidate selection processes), still expects its elected MLA to play this dual role – a mandate which they are able to impart through the strong African Nova Scotian voter presence within the boundaries of the protected constituency of Preston. (It should be noted that this fits the classic political definition of an influence district, where political candidates need to court support from a minority group to ensure their election, though the extent of minority influence will vary depending on local circumstances, and even from election to election).

This is an additional consideration to take into account. This is the importance of symbolic recognition to minority communities. Such recognition constitutes a positive message of affirmation to minorities regarding acknowledgement by the majority of their existence, their historical significance and their continued distinctiveness.

Revoking the protected status of the four designated constituencies would revoke this recognition; it would send a strong negative message about their place and status within the larger provincial community. … The protection offered to the three Acadian constituencies should be seen as a further measure taken to recognize and protect the French-speaking minority in the province, but beyond this the unique and indigenous Acadian communities from whence the vast majority of Nova Scotia’s French-speaking population derives.

The Constitution also explicitly acknowledges – in section 15(2) protecting the constitutionality of affirmative action programs – that equality for minorities needs to be understood as something other than ‘sameness’ of treatment; different treatment is sometimes necessary to achieve a form of equality that equates more closely with fairness for minorities, especially those that have been subject to historical discrimination.

Finally, and directly pertinent to the elected redistribution process, is the Supreme Court decision in Reference re Provincial Electoral Boundaries (1991), where the Court held that the right to vote guaranteed by

section 3 of the Charter of Rights and Freedoms does not include the right to votes of equal ‘weight’ in the sense that constituencies must be of equal population size. [ 50 ] One member of the Commission, Dr. Jill Grant, attached a “Dissenting Opinion Regarding the Commission’s

Interpretation of the Terms of Reference”. The dissent expressed the view that the Select Committee’s Terms of Reference precluded any special status for the minority ridings: The majority of members of the Commission determined that they did not view the Terms of Reference (TOR) provided by the government as mandatory. I disagree with this

interpretation and decision. While the Commission has the independence to conduct its work at arm’s length from government, the scope of the Commission’s independence is necessarily defined and constrained by the TOR which the Legislature provided to guide the process. As the democratically elected body with the mandate to articulate the will of the people, only the Legislature has the authority to specify the principles and values which should guide the Commission in redrawing electoral boundaries.

The Commission exceeds its authority in substituting alternative principles to those provided by the government of the province. … … I respect the deeply held views of the other Commission members and share the concern that the interests of Acadian, African Nova Scotian, and Mi’kmaq electors be safeguarded in the democratic process. However, because of the complex social and political questions related to safeguarding rights in Nova Scotia, I believe that the Legislature is the appropriate body to debate the relative merits and implications of strategies for effectively representing minority populations.

Members of the Commission have neither the expertise nor the delegated authority to set public policy in this matter. If the Legislature wishes to provide targeted representation of Acadian and African Nova Scotian electors it may, for instance, wish to consider alternative strategies (such as administrative districts or non- contiguous constituencies) that could better accommodate the geographic distribution of the communities involved while securing fair and effective representation for all Nova Scotians.

The Legislature could assist future electoral boundary commissions by providing rules and regulations for redistribution through legislation rather than in the form of a TOR from a Select Committee. [ 51 ] Dr. Grant resigned from the Commission on May 31, 2012, the date of the Interim Report. [ 52 ] On June 14, 2012, the Attorney General, Mr. Landry, wrote to the Chair of the Commission. Mr. Landry’s letter stated that the Interim Report was “null and void”, for failure to follow the Terms of Reference, and directed the Commission to replace it with another Interim Report: Dear Dr.

MacNeil: … As Attorney General, unfortunately, I am not able to accept the interim report as drafted, as it does not follow the requirements set out in the terms of reference in the final report of the Select Committee. I have been advised by the Chief Legislative Counsel of the House of Assembly that the terms of reference are legally binding upon the Commission, and that the interim report is therefore null and void. As such, I would request that the Commission prepare a revised interim report that complies with the terms of reference.

There is no authority in the terms of reference for constituencies that deviate by a variance of greater or less than 25 percent from the average number of electors per constituency. The government respects the independence of the Commission and does not wish to interfere with its work or recommendations. However, it is necessary that the Commission follow its legally binding terms of reference. …

[ 53 ] The Commission then prepared a Revised Interim Report, dated July 20, 2012. The recommendations defined every riding within the 25% variance. The former ridings of Clare, Argyle, Richmond and Preston disappeared, having merged with neighbouring ridings. [ 54 ] Under s. 5(5)(

c) of the House of Assembly Act , the Commission held further public hearings to receive reaction to the Revised Interim Report. This round included nine public meetings with 156 presentations and over 3,000 attendees. The presenters included many MLAs, cabinet ministers and the Premier. In addition, the Commission received 540 emailed and telephonic comments. [ 55 ] On September 24, 2012, the Commission issued its Final Report. All the recommended ridings were within the 25% variance. For the former protected ridings:

(1) Richmond joined with portions of the former ridings of Inverness and Cape Breton West.

(2) The Revised Interim Report had listed alternatives to the former ridings of Clare and Argyle and, from these, had recommended that they merge with portions of the neighbouring riding of Yarmouth. The Final Report said, of those recommendations: … These were soundly rejected through the Commission’s public consultation processes. The remaining three alternatives were essentially disregarded in public discussions. In short, all three electoral districts strongly opted to maintain the status quo. Yet the Commission is bound by the terms of reference with respect to the number of electors.

It therefore proposes the following in its Final Report: -That the electoral district of Clare be merged with the remainder of the County of Digby to form a new constituency to be named Clare- Digby. -That the electoral district of Yarmouth be retained. -That the electoral district of Argyle be merged with the District of Barrington, including Cape Sable Island, to form a new constituency to be named Argyle-Barrington. … [pages 30-31]

(3) The former riding of Preston merged with a Dartmouth riding. [ 56 ] The 1992 and 2002 Reports had said that the recommended boundaries would achieve effective representation. Though the 2012 Final Report was titled “Toward Fair and Effective Representation”, its text conspicuously omitted an assertion that effective representation would result from the recommendations, particularly for individuals in the formerly protected ridings.

It did not suggest that the Commission had found an equilibrium among Carter ’s criteria, particularly minority representation and cultural identity, for Acadian and African Nova Scotian minorities. Instead, the Report emphasized that the recommended boundaries complied with the Terms of Reference and the Attorney General’s direction.

It noted that, after the Attorney General’s letter, “we found ourselves without any discretionary authority”: Our task was to present concluding recommendations for boundary revisions to provincial electoral boundaries for the approval of the House of Assembly; moreover, these recommendations should be fully compliant with the terms of reference. We believe we have done that. … [page 4] … Initial

Interpretation … Our initial, general

interpretation – as an independent commission – was to treat the various clauses [of the Terms of Reference] as guides. This was in keeping with the wording contained in the terms of reference: “The [Select] Committee directs the provincial Boundaries Commission to be guided by the following …” In fact, all the clauses were observed except for our decision to retain protected constituencies. As matters turned out, our initial, general

interpretation of the terms of reference was not accepted. Following delivery of the Interim Report, we were advised by letter (June 14, 2012) from the Attorney General that he was “not able to accept the interim report as drafted, as it does not follow the requirements set out in the terms of reference in the final report of the Select Committee.” He further indicated that the terms of reference were legally binding.

At this point we found ourselves without any discretionary authority. [page 7] … Electoral Redistribution in Nova Scotia: Key Issues and Challenges … Last but certainly not least, ensuring effective representation while accommodating a concern for cultural diversity and minority representation [Commission’s italics] is an important consideration, one that is made more difficult by the fragmented territorial dispersal of key minority populations. In the context of the simple plurality (first-past-the-post) electoral system used throughout Canada

that groups electors into single-member constituencies, minorities that are widely dispersed rather than territorially concentrated are at risk of political under-representation (in terms of having one of their number elected to office). Of particular note in Nova Scotia is that its historic French-speaking Acadian population is concentrated in a number of rural communities located at the geographic extremities of the province.

Also, its African Nova Scotian community, which itself dates back to the origins of the province in the 18 th century, is widely dispersed, though in relative terms there is a concentration of population in and around the area of Preston, on the Dartmouth side of Halifax Harbour. Voter Parity versus Effective Representation The relative parity of voting power of individual Nova Scotians, achieved through constituencies of equal size in terms of the number of electors, is an important part of the effective representation of all Nova Scotians in the legislature.

The Commission is recommending boundary changes that will ensure that Nova Scotia’s electoral districts continue to adhere to this principle to the extent possible, as described in the Commission’s terms of reference. … [pages 14-15] … Minority Representation and Protected Constituencies The problem of ensuring effective representation for minority populations that are not territorially concentrated is a vexing one.

Indeed, the working of the electoral system makes it unlikely that a territorially fragmented minority population (such as the Acadians or African Nova Scotians) will succeed in electing one of their community members to represent them in the legislature. As previously indicated, to some extent this bias in the electoral system was overcome in Nova Scotia (at least over the past 20 years) by protecting selected ridings from re

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