VI- SCOPE OF THE COMMITMENT OF THE FEDERAL GOVERNMENT IN PART
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Part VII of the OLA deals more specifically with the government’s commitment to enhance the vitality of Francophone and Anglophone minorities in Canada, to support and assist their development, and to foster full recognition and use of both English and French in Canadian society. This part of the OLA raises many questions: whether the commitment given is declaratory or executory, how it is to be implemented, and the circumstances in which it should be applied.
Two decisions rendered during the period covered by this report dealt, for the first time directly, with this question of the scope of the commitment in Part VII of the OLA, particularly in section 41 of the OLA.
6.1 Setting electoral district boundaries in New Brunswick
Raîche v. Canada (Attorney General)
In Raîche,103 the Federal Court considered inter alia to what extent a Federal Electoral Boundaries Commission should take section 41 of the OLA into account104 when it sets new boundaries for an electoral district in which Francophone or Anglophone minorities reside. As in Charlebois and Forum des maires, analysed in this report, this judgment raises the question of whether Part VII of the OLA is declaratory or executory.
In this case, a Federal Electoral Boundaries Commission had been established for the province of New Brunswick to propose a redistribution plan for electoral districts in that province. Among other things, the Commission had recommended transfer of the parish of Allardville and part of the parishes of Saumarez and Bathurst from the federal electoral district of Acadie-Bathurst to that of Miramichi. The Commission had subsequently held public hearings and received submissions and comments from communities on the proposed changes.
In the Acadie-Bathurst riding, all the interveners favoured maintaining the status quo, citing questions of community of interests and identity. Despite these submissions, the Commission maintained its recommendation on grounds of electoral parity, that is the establishment of a certain balance in the number of electors by riding.
The Commissioner of Official Languages had received three complaints regarding this recommendation by the Commission. After an investigation, she concluded that the commitment in Part VII of the OLA required the Commission to assess the harmful consequences and disadvantages of its recommendations to the Francophone community. The Commission’s report had not persuaded the Commissioner that it had acted in this way. The Commissioner accordingly concluded that the Commission had not discharged the responsibilites upon it in this respect under section 41 of the OLA.
An order modifying the electoral boundary was nonetheless proclaimed. Before it came into effect, however, the applicants filed an application for judicial review, raising several questions regarding compliance with the voting right contained in section 3 of the Charter, section 15 of the Boundaries Readjustment Act and Part VII of the OLA. The decision on this application was finally handed down before the order came into effect.
1) Consistency of order amending electoral boundaries with voting rights
In its judgment, the Court first noted that section 3 of the Charter guaranteed the right not only to parity of the electoral power, but also the right to effective representation. It noted that although parity is important, absolute parity is clearly impossible and relative parity was not the only factor to be considered in ensuring effective representation. It indicated that other factors, such as "geography, community history, community interests and minority representation, had to be taken into account"105 and that they "could justify departure from absolute voter parity."106
The Court also recalled a warning given by the Supreme Court of Canada in Carter :107 courts should only conclude that there has been an infringement of section 3 of the Charter where "reasonable persons applying the appropriate principles . . . could not have set the electoral boundaries as they exist."108 This hesitation obviously reflects the delicate nature of the drawing of electoral boundaries. The commissions in fact had to reconcile two principles: that of parity and that of community of interests.
The Court went on to consider the facts in the case at bar, and in view of the contradictory evidence, chose to accept the applicant’s evidence that there was a community of interests in Acadie-Bathurst. It also noted that the Commission had accepted that there was a community of interests in Acadie-Bathurst and it was aware that the parity of the electoral power was not the only point to consider in drawing the electoral boundaries. The Commission had decided that a variance of 21 percent was simply too great.
As the basic test for determining whether a population has effective representation is the equality of suffrage, and a commission only infringes section 3 of the Charter if "reasonable persons applying the appropriate principles . . . could not have set the electoral boundaries as they exist,"109 the Court concluded that the Commission had not infringed that section when it decided to transfer parishes from Acadie-Bathurst to the Miramichi riding, since the decision was "reasonable".
2) Compliance with section 15 of the Electoral Boundaries Readjustment Act
On this point, the Court first noted that under paragraphs 15(1)(a) and (b) of the Electoral Boundaries Readjustment Act, commissions must consider a reasonable departure from the electoral quota to respect a community of interests, the identity of an electoral district in a province, its historical pattern or . . . so that the surface area of districts in sparsely populated, rural or northern areas of the province are not too large. It also noted that under section 15(2) of the Electoral Boundaries Readjustment Act, a commission could consider a larger departure if a community of interests or geographic features warranted it.
The Court noted that the Commission had applied subsection 15(1) when it recognized that there were many rural areas in New Brunswick and a variance of 10 percent from the electoral quota was therefore reasonable. It was careful to note, however, that the evidence showed that the Commission had declined to consider whether subsection 15(2) was applicable to the Acadie-Bathurst electoral district, since the figures were the only reason given for adding parishes to the Miramichi electoral district.
Finally, it concluded that while the Commission had observed paragraphs 15(1)(a) and (b) of the Electoral Boundaries Readjustment Act, in considering that a variance of 10 percent from the electoral quota was reasonable, it had not gone on to the second stage, which was equally significant: it "did not consider whether it was desirable to allow a variance provided for in the Electoral Boundaries Readjustment Act to preserve a community of interest in an electoral district."110 For these reasons, the Court concluded that the Commission had not complied with section 15 of the Electoral Boundaries Readjustment Act.
3) Compliance with Part VII of the OLA
Looking at the legal scope of this part of the OLA, the Court said it agreed with the position taken by the Commissioner of Official Languages, namely that section 42 of the OLA expressly commits federal institutions to implementing the federal government’s policy in section 41 of the OLA. The Court also said it agreed with the Commissioner’s argument that the Electoral Boundaries Readjustment Act and the OLA have similar goals, namely the obligation to take into account a community of interests, including a community of interests defined by the French language, and the commitment to enhance the vitality of Francophone minorities. Accordingly, the case did not raise any questions as to which of the two statutes took priority, since there was no inconsistency between the duties they imposed.
After considering the differences between the terminology used in Part VII and the more imperative terminology used in the other parts of the OLA, however, the Court held that in its view, Part VII of the OLA was declaratory in nature, not enforceable. Though the Minister of Canadian Heritage should encourage governmental institutions to support the development of minorities, neither the federal government nor federal institutions were obliged to systematically give effect to Part VII of the OLA. Accordingly, the Commission had discretion to decide whether it was appropriate to rely on Part VII, but if it chose to do so it should comply with that Part. Then, relying on Devinat,111 and contrary to what was subsequently held in Forum des maires,112 the Court held that even if an infringement of Part VII of the OLA did not give rise to a court remedy under Part X of the OLA, it still had jurisdiction under section 18.1 of the Federal Courts Act to hear a judicial review regarding that part of the Act. It was careful to point out, however, that in view of the declaratory nature of Part VII of the OLA, it had to show considerable deference toward the Commission.
Finally, in analysing the facts of the case, the Court concluded that the Commission’s decision on the transfer was wrong because it was made without regard for the evidence before it (that is, the evidence presented by the various interveners from the Acadie-Bathurst electoral district at the public hearings). The decision was taken contrary to the Electoral Boundaries Readjustment Act. The Court acknowledged that the Commission had "tried to apply Part VII of the OLA in a manner in keeping with the intention of Parliament,"113 but "it failed to do so because its findings of fact were erroneous".114
Accordingly, the Court set aside the Commission’s decision, though it pointed out that it was the Commission’s function to decide on what actions should be taken to give effect to this conclusion. The Court chose to suspend temporarily this invalidity declaration, for a maximum period of one year, to give the authority in question time to act.
Following the judgment, it was decided to create a commission to review the boundaries of the federal Acadie-Bathurst riding. This commission submitted its final report in December 2004. It recommended that the Francophone parishes of Allardville and Bathurst be returned to their original riding. It based its conclusion on the desire to respect a community of interests. To give effect to this recommendation, the House of Commons passed Bill C-36, which received Royal Assent on February 24, 2005.
