Reference re Prov. Electoral Boundaries (Sask.)

Reference re Prov. Electoral Boundaries (Sask.)
Collection
Supreme Court Judgments
Date
1991-06-06
Report
[1991] 2 SCR 158
Case number
22345
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William; Iacobucci, Frank
On appeal from
Saskatchewan
Subjects
Constitutional law
Notes
SCC Case Information: 22345
Decision Content
Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158
The Attorney General for Saskatchewan Appellant
v.
Roger Carter, Q.C. Respondent
and
Attorney General of Canada, Attorney General
of Quebec, Attorney General of British Columbia,
Attorney General of Prince Edward Island,
Attorney General for Alberta, Attorney General
of Newfoundland, Minister of Justice of the
Northwest Territories, Minister of Justice of
the Yukon, John F. Conway, British Columbia
Civil Liberties Association, Douglas Billingsley,
Wilson McBryan, Leonard Jason, Daniel Wilde,
Alberta Association of Municipal Districts &
Counties, City of Edmonton, City of Grande Prairie,
Equal Justice For All Interveners
Indexed as: Reference re Prov. Electoral Boundaries (Sask.)
File No.: 22345.
1991: April 29, 30; 1991: June 6.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.
on appeal from the court of appeal for saskatchewan
Constitutional law ‑‑ Charter of Rights ‑‑ Right to vote ‑‑ Electoral boundaries ‑‑ Variances in size of voter populations among constituencies ‑‑ Whether Charter right to vote infringed ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 3 ‑‑ Electoral Boundaries Commission Act, S.S. 1986‑87‑88, c. E‑6.1, ss. 14, 20.
The Saskatchewan Court of Appeal, on a reference dealing with the provincial electoral distribution, found that proposed changes to the electoral boundaries infringed s. 3 of the Canadian Charter of Rights and Freedoms . The Electoral Boundaries Commission Act imposed a strict quota of urban and rural ridings and required that urban ridings coincide with existing municipal boundaries. The resulting distribution map, unlike the one it replaced, revealed a number of ridings with variations in excess of 15 percent from the provincial quotient and indicated a problem of under-representation in urban areas.
Two questions were stated for the court's opinion. The first queried whether the variance in the size of voter populations among those constituencies infringed Charter rights guaranteed by the Charter and if so, in what particulars. It also queried whether any such denial of rights was justified by s. 1 of the Charter . The second queried whether the distribution of those constituencies among urban, rural and northern areas infringed Charter rights and if so, in what particulars were these rights infringed and in what particulars were they justified. This question too queried whether any such denial of rights was justified by s. 1 of the Charter .
Held (Lamer C.J. and L'Heureux-Dubé and Cory JJ. dissenting): The appeal should be allowed.
Per La Forest, Gonthier, McLachlin, Stevenson and Iacobucci JJ.: At issue here was whether the variances and distribution reflected in the constituencies themselves violated the Charter guarantee of the right to vote. The validity of The Representation Act, 1989 in so far as it defined the constituencies, was indirectly called into question.
The definition of provincial voting constituencies is subject to the Charter and is not a matter of constitutional convention relating to the provincial constitution which is impervious to judicial review. Although legislative jurisdiction to amend the provincial constitution cannot be removed from the province without a constitutional amendment and is in this sense above Charter scrutiny, the provincial exercise of its legislative authority is subject to the Charter . The province is empowered by convention to establish its electoral boundaries but that convention is subject to s. 3 of the Charter .
The content of the Charter right to vote is to be determined in a broad and purposive way, having regard to historical and social context. The broader philosophy underlying the historical development of the right to vote must be sought and practical considerations, such as social and physical geography, must be borne in mind. The Court, most importantly, must be guided by the ideal of a "free and democratic society" upon which the Charter is founded.
The purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se but the right to "effective representation". The right to vote therefore comprises many factors, of which equity is but one. The section does not guarantee equality of voting power.
Relative parity of voting power is a prime condition of effective representation. Deviations from absolute voter parity, however, may be justified on the grounds of practical impossibility or the provision of more 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. Beyond this, dilution of one citizen's vote as compared with another's should not be countenanced.
The history or philosophy of Canadian democracy does not suggest that the framers of the Charter in enacting s. 3 had the attainment of voter parity as their ultimate goal. Their goal, rather, was to recognize the right long affirmed in this country to effective representation in a system which gives due weight to voter equity but admits other considerations where necessary. Effective representation and good government in this country compel that factors other than voter parity, such as geography and community interests, be taken into account in setting electoral boundaries. Departures from the Canadian ideal of effective representation, where they exist, will be found to violate s. 3 of the Charter .
The actual allocation of seats between urban and rural areas closely followed the population distribution between those areas and effectively increased the number of urban seats to reflect population increases in urban areas. In general the variations between boundaries in the southern part of the province appeared to be justifiable on the basis of factors such as geography, community interests and population growth patterns. The northern boundaries were appropriate, given the sparse population and the difficulty of communication in the area. A violation of s. 3 of the Charter was not established.
Per Sopinka J.: The reasons of McLachlin J. were substantially agreed with, although the interpretation of s. 3 of the Charter was differently approached.
The framers of the Charter did not intend to create a new right and accordingly the primary inquiry was to determine on what principles the right to vote was based. Historically, the drawing of electoral boundaries has been governed by the attempt to achieve voter equality with liberal allowances for deviations based on the kinds of considerations enumerated in s. 20 of The Electoral Boundaries Commission Act. Deviations were avoided which deprived voters of fair and effective representation. Under the Charter , deviations are subjected to judicial scrutiny and must not be such as to deprive voters of fair and effective representation.
The Charter guarantee in s. 3 does not extend to the process. The legislature was not required to establish an electoral commission or to ensure that a commission, when established, was able to fulfill its mandate freely without guidelines imposed by the legislature.
The constitutional validity of the factors in s. 20 or s. 14 was not at issue but rather the effect that their application produced. The extent of deviation from strict voter equality and the reasons for those deviations were not such as to deny fair and effective representation.
Per Lamer C.J. and L'Heureux-Dubé and Cory JJ. (dissenting): In Canada, each citizen as a minimum must have the right to vote, to cast that vote in private and to have that vote honestly counted and recorded. Equally important, each vote must be relatively equal to every other vote; there cannot be wide variations in population size among the 64 southern constituencies. Deviations from equality will be permitted where they can be justified as contributing to the better government of the people as a whole, giving due weight to regional issues involving demographics and geography.
The restrictions placed on the Electoral Boundaries Commission by The Electoral Boundaries Commission Act were unknown to previous commissions.
The electoral map at issue which resulted from the impugned legislation must be considered even if the Charter infringements involved might be thought to be relatively minor. This is because the right to vote is fundamentally important to a democracy and to its citizens.
The problems with the impugned distribution were almost entirely a function of the two conditions placed on the Commission by the Act and were unacceptable and, given the eminently fair riding map of the previous distribution, quite unnecessary. The first imposed a strict quota of urban and rural ridings and the second required that the boundaries of the urban ridings coincide with the existing municipal boundaries effectively "quarantining" them from the others.
The fundamental importance of the right to vote demands a reasonably strict surveillance of legislative provisions pertaining to elections. Scrutiny under s. 3 attaches not only to the actual distribution in question but also to the underlying process from which the electoral map was derived. While the actual distribution map may appear to have achieved a result that is not too unreasonable, the effect of the statutory conditions interfered with the rights of urban voters. Once an independent boundaries commission is established, it is incumbent on the legislature to ensure that the Commission was able to fulfill its mandate freely and without unnecessary interference. The right to vote is so fundamental that this interference is sufficient to constitute a breach of s. 3 of the Charter .
The creation of the two northern ridings met all the requisite conditions of the Oakes test and was justified under s. 1 of the Charter . Geography and demography demonstrated a pressing and substantial need and the creation of these constituencies was rationally connected to the concept that they have effective representation.
The southern ridings were in a different position legally and geographically. While the differing representational concerns of urban and rural areas may properly be considered in drawing constituency boundaries, the voter population of each constituency should be approximately equal and the type of mandatory conditions imposed here are therefore precluded. Given the initial premise of equality, the Commission should be free to consider such factors as geography, demography and communities of interest in drawing constituency boundaries and allocating ridings between rural and urban areas. No explanation was given why the balancing of relevant factors could not be left to the Commission and instead had to be mandated by the legislature. The less equitable distribution that resulted because of these legislatively mandated conditions was, absent a reasonable explanation, suspect. There was no basis for concluding that the legislature's objective in imposing these conditions was pressing and substantial. Even assuming a pressing and substantial need, the legislation did not affect the rights of urban voters as little as possible. Earlier and more equitable distributions indicated that the rights of urban voters could be interfered with to a lesser extent.
Cases Cited
By McLachlin J.
Referred to: Dixon v. B.C. (A.G.) (1986), 7 B.C.L.R. (2d) 174; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Edwards v. Attorney‑General for Canada, [1930] A.C. 124; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; McGowan v. Maryland, 366 U.S. 420 (1961); R. v. Schwartz, [1988] 2 S.C.R. 443; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Oakes, [1986] 1 S.C.R. 103; Dixon v. B.C. (A.G.), [1989] 4 W.W.R. 393; Baker v. Carr, 369 U.S. 186 (1962); Karcher v. Daggett, 462 U.S. 725 (1983); Kirkpatrick v. Preisler, 394 U.S. 526 (1969); Attorney-General (Aus.); Ex rel. McKinlay v. Commonwealth (1975), 135 C.L.R. 1; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Canada v. Schmidt, [1987] 1 S.C.R. 500; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49.
Statutes and Regulations Cited
Act to re-adjust the Representation in the House of Commons, S.C. 1872, c. 13.
Canadian Charter of Rights and Freedoms, ss. 1 , 3 .
Constituency Boundaries Commission Act, 1972, S.S. 1972, c. 18, s. 16(1).
Electoral Boundaries Commission Act, S.S. 1986-87-88, c. E-6.1, ss. 14, 20.
Electoral Boundaries Commission Act, 1991, S.S. 1991, c. E-6.11, s. 9(2), 11(1), (2).
Representation Act, 1981, S.S. 1980-81, c. R-20.1.
Representation Act, 1989, S.S. 1989-90, c. R-20.2.
Authors Cited
Canada. House of Commons Debates, Vol. III, 4th Sess., June 1, 1872. Ottawa: Robertson, Roger & Co., 1872.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1991), 90 Sask. R. 174, 78 D.L.R. (4th) 449, [1991] 3 W.W.R. 593, on a reference by the Lieutenant Governor in Council. Appeal allowed, Lamer C.J. and L'Heureux-Dubé and Cory JJ. dissenting.
Robert G. Richards and Thomson Irvine, for the appellant.
Roger Carter, Q.C., for the respondent.
Ivan G. Whitehall, Q.C., and Susan D. Clarke, for the intervener the Attorney General of Canada.
Louis Rochette and Marise Visocchi, for the intervener the Attorney General of Quebec.
E. Robert A. Edwards, Q.C., and Frank A. V. Falzon, for the intervener the Attorney General of British Columbia.
Rosemary Scott and Gordon L. Campbell, for the intervener the Attorney General of Prince Edward Island.
Peter M. Owen, Q.C., and P. Jon Fauld, for the intervener the Attorney General for Alberta.
B. Gale Welsh, for the intervener the Attorney General of Newfoundland.
Bernard W. Funston and Elizabeth J. Stewart, for the intervener the Minister of Justice of the Northwest Territories.
T. Murray Rankin, for the intervener the Minister of Justice of the Yukon.
Peter T. Costigan, for the intervener the Alberta Association of Municipal Districts and Counties.
John F. Conway, for the intervener John F. Conway.
Robert D. Holmes, for the intervener the British Columbia Civil Liberties Association.
Donald J. Boyer, Q.C., for the interveners Douglas Billingsley, Wilson McBryan, Leonard Jason and Daniel Wilde.
Timothy J. Christian, for the interveners the cities of Edmonton and Grande Prairie.
Larry W. Kowalchuk, for the intervener Equal Justice for All.
//Cory J.//
The reasons of Lamer C.J. and L'Heureux-Dubé and Cory JJ. were delivered by
Cory J. (dissenting) -- This appeal is concerned with the most fundamental of our rights in a democratic society, the right to vote. I have read with great interest the reasons of my colleague Justice McLachlin. Although I agree with many of the principles she has set forth, I have come to a different conclusion and would dismiss the appeal.
Something of History and Background
The right to vote is synonymous with democracy. It is the most basic prerequisite of our form of government. In a democratic society based upon the right of its citizens to vote, the right must have some real significance. In Canada it is accepted that, as a minimum, each citizen must have the right to vote, to cast that vote in private, and to have that vote honestly counted and recorded.
There is, I believe, a further, equally important aspect of the right, namely that each vote must be relatively equal to every other vote. That is not to say that there cannot be variations in population size between constituencies. These variations or deviations from equality will be permitted where, in the words of my colleague at p. 000, they "can be justified on the ground that they contribute to the better government of the populace as a whole, giving due weight to regional issues within the populace and geographic factors within the territory governed."
Free people have always striven for relative equality of voting power. The Americans of 1776 sought recognition of the reasonable principle that there was to be no taxation without representation and further, that representation was to be based upon the equal weight of every ballot.
It is argued, quite correctly, that our Canadian background is different from that of our American neighbour. It is said that we have never insisted upon precise equality of voting power, but instead have traditionally placed greater emphasis on the representation of community interests and given wider recognition to geographic considerations. I agree with these submissions. In Canada we have recognized that the vast, sparsely settled regions in the north must be adequately represented even where their population is less than half of that of a constituency in the south. To recognize this is to recognize the reality of Canada and Canadian geography. At the same time, in the rest of Canada there has been a conscious and continuing move towards greater equality among constituencies.
Saskatchewan became a province in 1905. The early electoral maps of the province show a wide divergence in riding populations. However, this tendency has changed greatly over the years, particularly since 1972 when the first electoral boundaries commission was established. Unlike the Electoral Boundaries Commission upon whose recommendations the impugned distribution is based, the Constituency Boundaries Commissions of 1973 and 1979-80, established pursuant to The Constituency Boundaries Commission Act, 1972, S.S. 1972, c. 18, were not bound by any fixed allocation of ridings between urban and rural areas, nor were they required to draw urban boundaries so as to coincide with municipal limits. These restrictions placed upon the Electoral Boundaries Commission by the provisions of The Electoral Boundaries Commission Act, S.S. 1986-87-88, c. E-6.1 (the "E.B.C.A."), restrictions unknown to previous boundaries commissions, are in my view of great significance to the disposition of this appeal.
The maps for 1981 and 1989 are attached as schedules to these reasons. Putting aside the two northern constituencies, which are in a class by themselves, the distribution map of 1981 illustrates how equitably electoral boundaries can be drawn. A glance at the 1981 map demonstrates that each and every southern riding, whether urban or rural, is within 15 percent of the provincial quotient -- the figure obtained by dividing the southern voting population by the number of southern ridings. It seems that the figure of 15 percent is an eminently reasonable accommodation of the greater difficulties that may be encountered in representing some of the large rural ridings of Saskatchewan.
The Impugned Distribution
The E.B.C.A., which set into motion the process which eventually resulted in the impugned distribution, imposed two conditions on the Boundaries Commission. First, a strict quota of urban and rural ridings was imposed. Second, the boundaries of the urban ridings were required to coincide with the existing municipal boundaries. It is as though the urban ridings were to be "quarantined" from the others. The conditions imposed are both unacceptable and, particularly in light of the eminently fair riding map achieved in 1981, quite unnecessary.
The absence of the mandatory conditions in the earlier legislation resulted in an electoral map that was fairer to all electors. The legislation then in force (The Constituency Boundaries Commission Act, 1972) provided:
16.--(1) In determining the area to be included in, and in fixing the boundaries of, any constituency in the portion of the province lying south of the line described in section 14, the commission shall be governed by the following rules:
1. The division of that portion of the province into constituencies and the description of the boundaries thereof by the commission shall proceed on the basis that the population of each constituency as a result thereof shall correspond as nearly as possible to the quotient established under section 15;
2. The commission may depart from the strict application of rule 1 in any case where:
(a)special geographic considerations including in particular sparsity, density or relative rate of growth of population of various regions of the portion of the province lying south of the line described in section 14, the accessibility of such regions or the size or shape thereof appear to the commission to render such a departure necessary or desirable;
(b)any special community or diversity of interests of the inhabitants of various regions of the portion of the province mentioned in clause (a) appears to the commission to render such a departure necessary or desirable;
(c)physical features of any area or any other similar and relevant factors, including variations in the requirements of the population of any constituency in the portion of the province mentioned in clause (a) appear to the commission to render such a departure desirable;
but in no case shall the population of any constituency in the province as a result thereof depart from the constituency quotient to a greater extent than fifteen per cent more or fifteen per cent less.
It is interesting that the boundaries commission legislation currently in force in Saskatchewan, which in April 1991 replaced the legislation now before the Court, omits any reference to the numbers of urban and rural ridings. Further, it does not fix the boundaries of urban ridings so as to coincide with municipal limits. The relevant provisions of the new legislation (The Electoral Boundaries Commission Act, 1991, assented to April 16, 1991) are as follows:
9 . . .
(2) In fixing the boundaries of proposed constituencies, the commission shall:
...
(b) divide the area of Saskatchewan south of the dividing line into 64 constituencies.
11(1) In determining the area to be included in a proposed constituency south of the dividing line and in fixing the boundaries of that constituency, the commission shall ensure that the voter population of each proposed constituency be, as near as possible, equal to the constituency population quotient.
(2) Notwithstanding subsection (1), the commission may depart from the requirements of that subsection where, in the opinion of the commission, it is necessary to do so because of:
(a) special geographic considerations, including:
(i) sparsity, density or relative rates of growth of population in various regions south of the dividing line;
(ii) accessibility to the regions mentioned in subclause (i); or
(iii) the size and shape of the regions described in subclause (i);
(b) a special community of interests or diversity of interests of persons residing in regions south of the dividing line; or
(c) physical features of regions south of the dividing line.
The difference between the old boundaries commission legislation and that implicated in the present appeal is of fundamental importance. The presence of the two mandatory conditions in the E.B.C.A., on the basis of which the impugned distribution was established, is a serious cause for concern. The impact of these conditions on the quality of the distribution is demonstrated by comparing the 1981 and 1989 distribution maps. The deterioration in the quality of the distribution from 1981 to 1989 is evidence of the effect of the two mandatory conditions, in terms of the potential for inequality and unfairness to which they give rise. (I would also observe in passing that the problematic -- and unnecessary -- nature of the two mandatory conditions is underscored by the notable absence of those conditions from the most recent boundaries commission legislation.)
The riding map which resulted from the E.B.C.A. is not as fair as the 1981 riding map. The 1989 distribution map reveals a number of constituencies with variations in excess of 15 percent from the provincial quotient. The problem of under-representation is most acute in the major urban centres of the province. Thus, for example, based on its population, the growing city of Saskatoon should be entitled to elect another 1.1 members. I hasten to add, however, that it is not for a court to get into the details of the riding boundaries set by the Boundaries Commission. That work has been conscientiously performed by its eminent members. Rather, a court can only determine if there has been an infringement of the s. 3 Charter right to vote. A comparison of the 1981 map to that of 1989 convinces me that there has been such an infringement.
It is said that the current map reflects such a minor infringement that it is not worth considering. I cannot accept that argument as correct for two reasons. First, the right to vote is fundamental to a democracy. If the right to vote is to be of true significance to the individual voter, each person's vote should, subject only to reasonable variations for geographic and community interests, be as nearly as possible equal to the vote of any other voter residing in any other constituency. Any significant diminution of the right to relative equality of voting power can only lead to voter frustration and to a lack of confidence in the electoral process. The 1981 distribution map demonstrates that relative equality can be achieved in all of the southern Saskatchewan ridings. This degree of equality should be maintained.
Second, the reason for the departure from riding equality must be considered. In my view, the problems with the impugned distribution are almost entirely a function of the shackling of the Boundaries Commission by the two conditions imposed by the underlying legislation, the E.B.C.A. These conditions prevented the Commission from sufficiently accommodating the changing demographic reality. By stipulating a mandatory rural-urban allocation of ridings and by confining urban ridings to municipal boundaries, the E.B.C.A. has led to greater variances than would otherwise have been the case had the Boundaries Commission been completely free in making its recommendations.
Specifically, the mandatory rural-urban allocation may have prevented the Commission from taking sufficient account of the diminishing rural population and the corresponding urban growth in the province. The requirement of conformity of urban ridings to municipal limits similarly poses a potential obstacle to the necessary accommodation of demographic realities, particularly since municipal boundaries often fail to reflect urban development. On this point, it was said that there was no such thing as dormitory communities in Saskatchewan cities. I accept that as correct. Yet the demographic material filed indicates that there continues to be a movement of population away from the province and, more significantly, a movement of people from the rural areas to the urban centres. This indicates a need for flexibility, not only in the allocation of seats between urban and rural areas, but also in the fixing of the boundaries of urban ridings. It also highlights the steadily growing need for the fair representation of the urban resident.
The fundamental importance of the right to vote demands a reasonably strict surveillance of legislative provisions pertaining to elections. While I agree with my colleague McLachlin J. regarding the meaning of the s. 3 right to vote and the relevant criteria to be considered in assessing whether a given distribution violates that right, I am of the view that the inquiry cannot be restricted solely to the ultimate result achieved. We are concerned in this appeal not only with results but also with process. In my view, s. 3 scrutiny attaches not only to the actual distribution in question, but also to the underlying process from which the electoral map was derived. It is this process that concerns me.
Thus, while the actual distribution map may appear to have achieved a result that is not too unreasonable, I am of the view that the effect of the statutory conditions has been to interfere with the rights of urban voters. Once an independent boundaries commission was established, it was incumbent upon the Saskatchewan legislature to ensure that the commission was able to fulfill its mandate freely and without unnecessary interference. The public would, quite properly, perceive the Commission to be an independent and trustworthy body. It would be an affront for the legislature to undermine the jurisdiction and authority which members of the public would reasonably expect the Commission to possess. I should add that, had the Saskatchewan government chosen to legislate the boundaries directly rather than by establishing an independent boundaries commission, the s. 3 right would still be engaged.
The right to vote is so fundamental that this interference is sufficient to constitute a breach of s. 3 of the Charter . To diminish the voting rights of individuals is to violate the democratic system. Such actions are bound to incur the frustration of voters and risk bringing the democratic process itself into disrepute. The haunting spectre of "rotten boroughs" is not that far removed as to be forgotten. The right to vote is too important to be diluted in the absence of some valid justification. No such justification exists in this case.
Is the Infringement Justifiable under s. 1 of the Charter ?
The northern regions are in a class by themselves. The geography of these sparsely settled regions clearly demonstrates a pressing and substantial need for two northern constituencies. The creation of these constituencies is certainly rationally connected to the concept that these vast, underpopulated areas need effective representation. In short, the creation of the two northern ridings meets all the requisite conditions and they are justified under s. 1 of the Charter .
The southern ridings are in a different position legally as well as geographically. I readily agree that the differing representational concerns of urban and rural areas may properly be considered in the determination of constituency boundaries. However, any body charged with creating an electoral map should commence with the proposition that, to the extent that it is reasonable and feasible, the voter population of each constituency should be approximately equal. In my view, this necessarily precludes the type of mandatory conditions imposed in the present case.
Proceeding from the initial premise of equality, the Commission should, in determining constituency boundaries and allocating ridings between urban and rural areas, be free to consider such factors as geography, demography and communities of interest. In any given distribution, the degree of variance between constituencies and the allocation of ridings between urban and rural areas will depend on the nature of the constituencies under consideration and the extent to which these factors are present.
For instance, the 1981 map provides proof that it is possible in Saskatchewan to achieve equality within 15 percent of the provincial quotient for all southern constituencies while still addressing other relevant considerations such as the differing nature of rural and urban interests. In other provinces, these concerns will be balanced differently. Depending on the particular characteristics of each province, non-population factors may require greater or less deviation. Thus, for example, a 25 percent variation has been found to be necessary and acceptable in British Columbia, whereas the legislation in Manitoba limits the variation to 10 percent.
In Saskatchewan, the basic requirement of reasonable equality was met when the 1981 constituency map was drawn. No reason has been provided as to why it was no longer possible to achieve the degree of equality reflected in that distribution. Moreover, no explanation has been given as to why the balancing of the relevant factors could not, as it was previously, be left to the Commission rather than being mandated by the legislature. The province has failed to justify the need to shackle the Commission with the mandatory rural-urban allocation and the confinement of urban boundaries to municipal limits. The effect of these mandatory conditions was to force the Commission to recommend a distribution which departs from the higher degree of equality achieved in 1981. In the absence of a reasonable explanation as to why this was necessary, the distribution in question is suspect and there is no basis upon which to conclude that the legislature's objective in imposing the mandatory conditions was pressing and substantial.
However, even assuming that the mandatory conditions were enacted in pursuit of some pressing and substantial need, it cannot be said that the legislation affected the rights of urban voters as little as possible. The earlier Constituency Boundaries Commission Act, 1972 and the maps resulting from that legislation demonstrate that significantly less intrusive means can be utilized to provide good and proper rural representation. The 1981 map demonstrates not only that it is possible to achieve a greater degree of electoral equality than exists in the impugned distribution, but also that the goal of ensuring adequate representation of rural areas can be met without imposing restrictions on the boundaries commission. Thus, the earlier legislation and resulting constituency maps clearly demonstrate that there are means of drawing the constituency boundaries which interfere with the rights of urban voters to a lesser extent.
I wish to emphasize that this is not a matter of a court entering the domain of the legislature. Rather, it is no more than a requirement that the legislature refrain from infringing Charter rights. It requires no more of the Saskatchewan legislature than that it comply with either its earlier or subsequent enactments on the same subject.
In summary, it has not been established that there was a pressing or substantial need either to rigidly fix the number of urban and rural ridings in southern Saskatchewan or to confine the urban ridings to existing municipal boundaries. It follows that the first requirement of s. 1 has not been met. Even if it had, I would think it impossible to find that the rights of urban voters had been interfered with as little as possible. The impugned legislation cannot therefore be justified under s. 1 of the Charter .
Conclusion
The fundamental right to vote should not be diminished without sound justification. To water down the importance and significance of an individual's vote is to weaken the democratic process. Here no sound basis has been put forward to justify legislation which clearly has the effect of diminishing the rights of urban voters and reducing the representation of urban residents in the legislature. Democracy can all too easily be eroded by diluting voters' rights and representation. Voting is far too important and precious a right to be unreasonably and unnecessarily diluted.
Disposition
In the result I would dismiss the appeal and answer the reference questions in the same manner as the Saskatchewan Court of Appeal.
//McLachlin J.//
The judgment of La Forest, Gonthier, McLachlin, Stevenson and Iacobucci JJ. was delivered by
McLachlin J. -- This appeal involves a constitutional challenge to provincial electoral distribution in the province of Saskatchewan. My conclusion is that the electoral boundaries created by The Representation Act, 1989, S.S. 1989-90, c. R-20.2, do not violate the right to vote enshrined in s. 3 of the Canadian Charter of Rights and Freedoms .
I reach this conclusion through consideration of a number of subsidiary issues:
I The Question to be Answered
II Application of the Charter
III Defining the Right to Vote
IV Is the Right to Vote Violated by the Saskatchewan Boundaries?
V Section l and Justification
I The Question to be Answered
This case comes to us as an appeal from a reference to the Saskatchewan Court of Appeal (1991), 90 Sask. R. 174. The reference requested that court's opinion on the following questions:
In respect of the constituencies defined in The Representation Act, 1989:
(a)Does the variance in the size of voter populations among those constituencies, as contemplated by s. 20 of The Electoral Boundaries Commission Act, S.S. l986-87-88, c. E-6.l, and recommended in the Sasketchewan Electoral Boundaries Commission 1988 Final Report, infringe or deny rights or freedoms guaranteed by the Canadian Charter of Rights and Freedoms ? If so, in what particulars? Is any such limitation or denial of rights or freedoms justified by s. 1 of the Canadian Charter of Rights and Freedoms ?
(b)Does the distribution of those constituencies among urban, rural and northern areas, as contemplated by s. 14 of The Electoral Boundaries Commission Act, S.S. 1986-87-88, c. E-6.1, and recommended in the Saskatchewan Electoral Boundaries Commission 1988 Final Report, infringe or deny rights or freedoms guaranteed by the Canadian Charter of Rights and Freedoms ? If so, in what particulars? Is any such limitation or denial of rights or freedoms justified by s. 1 of the Canadian Charter of Rights and Freedoms ?
Different views have been expressed as to what issues these questions raise. The appellant asserts that what is at issue is the constitutional validity of The Representation Act, 1989. The respondent contends that the question is not whether the Act was unconstitutional, but whether the electoral boundaries created pursuant to the Act violate the Charter .
I am of the view that it is the boundaries themselves which are at issue on this appeal. The questions focus, not on the Act, but on the constitutionality of "the variance in the size of voter populations among [the] constituencies" and "the distribution of those constituencies among urban, rural and northern areas". In so far as The Representation Act, 1989 defines the constituencies, the validity of that Act is indirectly called into question. And in so far as The Electoral Boundaries Commission Act provides the criteria by which the boundaries are to be fixed, that Act may affect the answers given to the questions posed. But the basic question put to this Court is whether the variances and distribution reflected in the constituencies themselves violate the Charter guarantee of the right to vote.
II Application of the Charter
A preliminary question arises of whether the definition of provincial voting constituencies is subject to the Charter .
The Minister of Justice of the Northwest Territories submits that the Charter does not apply since the legislation whereby constituencies are created is part of the constitution of Canada and hence not subject to the Charter . He submits that the provinces have had the right to establish electoral boundaries since joining Confederation. In his view, the place of voter equality in this determination is a matter of constitutional convention which is impervious to judicial review. The right of the provinces to create electoral boundaries as they see fit "must be taken as being an inherent limitation on the right to vote in s. 3 ."
I cannot accept this submission. Although legislative jurisdiction to amend the provincial constitution cannot be removed from the province without a constitutional amendment and is in this sense above Charter scrutiny, the provincial exercise of its legislative authority is subject to the Charter ; as McEachern C