T-1730-03
2004 FC 679
Carmel Raîche, Ian Oliver, l'Association des municipalités du Nouveau-Brunswick Inc., Bathurst Regional Airport Commission Inc., Greater Bathurst Chamber of Commerce and City of Bathurst (Applicants)
v.
The Attorney General of Canada (Respondent)
and
The Commissioner of Official Languages of Canada (Intervener)
Indexed as: Raîche v. Canada (Attorney General) (F.C.)
Federal Court, Shore J.--Fredericton, May 3 and 4; Ottawa, May 11, 2004.
Constitutional Law -- Charter of Rights -- Democratic Rights -- Judicial review of Royal Proclamation transferring certain New Brunswick parishes to different electoral district -- Whether Charter, s. 3 infringed and, if so, whether proclamation saved by Charter, s. 1 -- Purpose of right to vote to afford effective representation, not just parity of voting power -- Factors to be considered -- No Charter violation unless electoral boundaries as established could not have been set by reasonable persons applying appropriate principles -- Affidavits of citizens, conflicting expert witness affidavits of political science professors, considered -- Importance of M.P.'s ability to communicate in French -- Report of Attorney General's expert criticized for non-consideration of Charter, s. 3 legal principles -- Minority group's fears of inadequate representation not without foundation -- Region unique as having Canada's highest concentration of Acadians -- As voter parity primary consideration, s. 3 not breached -- But if breached, not saved by s. 1.
Elections -- Judicial review of Royal Proclamation re: transfer of certain New Brunswick parishes to different electoral district -- Administration of Electoral Boundaries Readjustment Act explained -- Reason for impugned transfer: to correct electoral quota imbalance between adjoining ridings -- Argued that transfer will prejudice region's economic, social development -- Concepts of community of interests, identity -- Complaints made to Commissioner of Official Languages -- Whether Proclamation contravening Readjustment Act, s. 15 -- Standard of review of Commission decisions -- Act empowers Commission to deviate from voter parity principle in appropriate circumstances -- Commission failing to correctly interpret Act by disregarding whether community of interest justifying departure from principle variance not to exceed 10% -- Variance may exceed 25% in extraordinary circumstances -- Commission not having regard to evidence Acadian minority in Miramichi without representation -- Court not believing community's political power depending only on attaining critical mass -- Court rejecting argument Readjustment Act, as specific legislation, prevailing over Official Languages Act -- Court empowered to set Commission decision aside, not to restore Acadie-Bathurst electoral district to what had been as would usurp role of Parliament.
Official Languages -- Judicial review of Proclamation regarding transfer of certain New Brunswick parishes from Acadie-Bathurst riding to Miramichi -- Whether OLA, Part VII contravened -- Whether OLA, s. 41 applicable to readjustment Commission's final report -- Court rejecting submission Readjustment Act as specific legislation, prevailing over OLA, law of general application -- Part VII declaratory, not executory so need not always be given effect to by Government, federal institutions -- S. 42 not enforceable.
Federal Court Jurisdiction -- Judicial review of Proclamation re: transfer of certain New Brunswick parishes to different electoral district -- Whether Court having jurisdiction re: decisions under Official Languages Act, Part VII -- Conflicting F.C.A. case law considered -- Fundamental principle of law: if right exists, Court can enforce it -- F.C. having power to quash Commission decision but not to restore electoral district to what had been -- To do so would usurp role of Parliament.
This was an application for judicial review of a Crown proclamation whereby the New Brunswick parish of Allardville and part of the parishes of Saumarez and Bathurst were transferred from the federal electoral district of Acadie-Bathurst to the Miramichi electoral district.
The number of electoral districts in each province (which determines each province's representation the House of Commons) and in the electoral district boundaries are readjusted following each decennial census to reflect population movements in accordance with the Constitution Act, 1867 and the Electoral Boundaries Readjustment Act. A non-partisan, independent Commission is established to examine existing boundaries and make appropriate changes. It devises a plan, including maps, which is published in the newspaper. Following community consultations, a final readjustment plan is proposed. The Chief Electoral Officer then refers the report to the Speaker of the House of Commons and a draft electoral representation order is prepared. Once proclaimed, it takes effect on the first dissolution of Parliament that occurs at least one year after proclamation.
The reasoning behind the impugned transfers was that, if the boundaries were not adjusted, the Acadie-Bathurst electoral district would have an almost +14 percent variance from the electoral quota, while the neighbouring Miramichi district would have a -21 percent variance. But a number of individuals who spoke at the public hearings advocated preservation of the status quo, citing concepts of community of interests and of identity. It was suggested that one could not imagine a region more linguistically homogeneous and culturally distinct than Acadie-Bathurst. It was urged that the proposed changes would prejudice the economic and social development of northeastern New Brunswick. A petition supporting the status quo, signed by 2,656 people, was presented.
These views were not reflected in the Commission's report to the Standing Committee on Procedure and House Affairs and three complaints against the Commission were received by the Commissioner of Official Languages. The Commissioner determined that the complaints were admissible. The objective of the investigation was to determine whether the Commission had had regard to Official Languages Act, (OLA) section 41. The commitment in OLA, Part VII required that the Commission assess the disadvantages and harmful consequences perceived by the official language minority community, having regard to the consequences of the changes for the development and vitality of the francophone community. The Commissioner was not persuaded that the Commission had discharged its responsibilities under OLA, section 41. The Standing Committee said that leaving the current boundaries alone and accepting the + 14% variance was both allowable and preferable but the Commission's final decision was "to return the Parish of Saumarez and a portion of the Parish of Allardville including Saint-Sauveur into the electoral district of ACADIE-BATHURST. The Parish of Bathurst and portion of the Parish of Allardville will remain in the electoral district of MIRAMICHI".
The issues were: (1) whether the Proclamation contravenes Charter, section 3; (2) if so, whether the Proclamation was saved by section 1; (3) what standard of review was applicable to Commissions decision; (4) whether the Proclamation contravenes Readjustment Act, section 15; (5) whether the Proclamation offends against OLA, Part VII; and (6) what remedies does the Court have jurisdiction to grant?
Held, the application should be granted but the declaration of invalidity should be suspended for one year to allow the authority in question time to choose the manner in which to give effect to the relief granted.
(1) The Supreme Court of Canada has held that the purpose of the right to vote, guaranteed by Charter, section 3, is to afford effective representation and not just parity of voting power. The Court pointed out that even with a census being carried out on a frequent basis, it is impossible to guarantee that there would be exactly the same number of voters in each district. Factors such as geography, community history and interests as well as minority representation must be taken into account in order to ensure the legislatures effectively represent the diversity of the Canadian social mosaic. Still, only those deviations which can be justified as contributing to the better government of the population as a whole should be permitted. The Supreme Court has further held that a Charter, section 3 violation ought not be found unless "reasonable persons applying the appropriate principles . . . could not have set the electoral boundaries as they exist". While the policy of voting power parity stresses the importance of the individual, the community of interest principle stresses the group. Since finding the balance between the two is not an exact science, courts should respect the choices made by commissions so long as they are defensible.
Applicants introduced the affidavit evidence of seven residents of the former electoral district of Acadie-Bathurst attesting to the strong linguistic, historic, social and administrative ties that exist in that riding and the relative absence of such ties with Miramichi. In addition, they filed the affidavit of a political science professor. This expert witness concluded that the parishes of Allardville and Bathurst are part of a single community of interest with the other parishes of the former electoral district of Acadie-Bathurst. The Attorney General brought forward evidence of a political scientist whose opinion was that the fears of the Acadie-Bathurst residents were groundless. They could still have services in French, since both Canada and New Brunswick are bilingual. What did it matter if their MP did not speak French? The applicants' evidence was preferred. Respondent's expert did not disagree with the empirical findings of applicants' witness and the latter's report could be faulted for failing to take into consideration the legal principles in Charter, section 3. The Supreme Court has recognized that the fears of a minority group that it may not be adequately represented by its MP are not without basis for, in a democracy, the reality is that, faced with the conflicting interests of the majority and a minority, the elected representative may have to choose to represent the majority interest. Again, the report of the Attorney General's expert was open to criticism as containing hypotheticals and being largely based on speculation. Finally, this witness had a tendency to exaggerate certain points while disregarding facts which refuted his hypothesis--especially on the economic community of interest issue.
At the Commission hearings, the people explained that the region is unique as it has the highest concentration of Acadians in Canada and they reminded Commission members of the historical wrongs that had been done to the Acadians. While the Commission accepted that there was a community of interest in Acadie-Bathurst, it determined that a -21 percent variance was simply too large. Voter parity being the primary consideration in determining whether a population has effective representation, Charter, section 3 had not been violated.
(2) In the event that this conclusion might be found to be in error, the Court considered whether a breach would be justifiable under Charter, section 1. In an application of the test in Oakes, a court has to balance individual rights against the needs of society. The burden herein was on respondent but the Attorney General offered nothing on this point and so failed to demonstrate justification. Accordingly, if the Charter had been breached, there was no Charter, section 1 justification.
(3) The next issue was the standard of review of Commission decisions in determining whether the Proclamation was in contravention of Readjustment Act, section 15. That statute fails to define "community of interest" but gives the Commission discretion to depart from the principle of voter parity in certain circumstances. Still, the Attorney General's position exaggerated the degree of discretion given. While this issue was a question of mixed fact and law, it was more law-intensive since it involved the interpretation of section 15 and that reduced the deference that has to be shown by the Court. The standard of reasonable decision was here applicable.
(4) In deciding as it did, the Commission thought it important to keep the variance under 10 percent. It thought either that there was already a strong enough Acadian minority in Miramichi to be able to give the parishes to be transferred from Acadie-Bathurst a voice, or that by adding Acadian communities to Miramichi there would be a strong enough minority that it would be able to insist that its MP represent its interests. The Commission failed to interpret the Act according to its spirit by neglecting to consider whether there were electoral districts where, having regard to regional community of interest ore geographic features, it would be desirable to depart from the general principle that the variance ought not exceed 10 percent. Under Act, paragraphs 15(1)(a) and (b), commissions are required to consider a reasonable departure from the electoral quota to recognize the community of interest and identity in or the historical pattern of an electoral district as well as to maintain a manageable geographic size for districts in sparsely populated, rural or northern regions. But in extraordinary circumstances a variance exceeding 25 percent can be accepted. The Commission declined to consider whether subsection 15(2) (which authorizes a variance not to exceeding 25 percent but only in exceptional circumstances) applied to the case of Acadie-Bathurst. The numbers were the only reason for adding the parishes to Miramichi.
Nor had the Commission regard to the material before it in determining that Allardville, Saumarez and Bathurst would have effective representation when included in the Miramichi electoral district. The evidence was to the effect that the Acadian minority in Miramichi did not have effective representation. The MP for Acadie-Bathurst testified that Miramichi's francophones came to him for help, their MP being a unilingual anglophone.
Also problematic was the conclusion that adding francophone communities to the Miramichi Acadian community would impart to it added weight. In fact, as a result of the transfer of the parishes, the percentage of francophones actually fell from 34 to 33 percent. The Court did not believe that the political power of a community depended only upon attaining a critical mass. The Commission erred in concluding that there was, or could be, a community of interest in Miramichi and so its decision had to be set aside.
(5) The Attorney General submitted that OLA, section 41 had no application to the Commission's final report because the commitment in Part VII extended only to the Government of Canada and the electoral boundaries commissions do not form part of the Government. The Court agreed with the Official Languages Commissioner that the OLA applies to both the Government of Canada and the government institutions. The Court could not accept respondent's submission that the Readjustment Act, as specific legislation, should prevail over the OLA, a law of general application. There was no inconsistency between the obligations imposed by the two statutes. The Court did, however, agree with respondent's argument, that OLA, Part VII is declaratory rather than executory so that neither the Government nor federal institutions must always give effect to Part VII. That section 42 uses "shall" with reference to the Government's obligations but not in respect of government institutions although some other parts of the OLA do use imperative language in describing the role of government institutions, would suggest that section 42 is declaratory, not enforceable.
A further question was whether this Court had judicial review jurisdiction in respect of decisions made under OLA, Part VII. While there is conflicting Federal Court of Appeal case law on point, Devinat v. Canada (Immigration and Refugee Board) applied. There the Court of Appeal quoted with approval the following statement made in a judgment of the Judicial Committee of the Privy Council: "If the right exists, the presumption is that there is a Court which can enforce it ". "This being a fundamental principle of law, the Court should not interpret the law as granting a right but denying a remedy, unless the law expressly precludes that remedy. The OLA does not expressly preclude a remedy and this court does have jurisdiction under Federal Courts Act, section 18.1.
Part VII being declaratory, the Court must show considerable deference to the Commission. But, while the Commission made an attempt to apply Part VII in accordance with Parliamentary intent, it failed to do so because its findings of fact were erroneous.
(6) The Court lacked jurisdiction to restore the electoral district of Acadie-Bathurst to what it had been: it can set aside the Commission's decision but cannot substitute its own. It would be entirely inappropriate for that a Court to usurp Parliament's role by dictating the electoral boundaries of a province. So, while granting the application for judicial review, it was left to the authority in question to determine how effect will be given to the relief granted by the Court. The declaration of invalidity was suspended for one year to allow the authority in question time to devise the manner in which relief will be provided.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 3.
| Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]. |
| Electoral Boundaries Readjustment Act, R.S.C., 1985, c. E-3, s. 15 (as am. by R.S.C., 1985 (2nd Supp.), c. 6, s. 2; S.C. 1998, c. 15, s. 25). |
| Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27). |
| Official Languages Act, R.S.C. (1985) (4th Supp.), c. 31, ss. 41, 42 (as am. by S.C. 1995, c. 11, s. 27). |
| Proclamation Declaring the Representation Order to be in Force Effective on the First Dissolution of Parliament that Occurs after August 25, 2004, SI/2003-154. |
cases judicially considered
not followed
Ayangma v. Canada (2002), 221 F.T.R. 81 (F.C.T.D.); affd (2003), 303 N.R. 92 (F.C.A.); leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 146 (QL).
applied:
Reference Re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; (1991), 81 D.L.R. (4th) 16; [1991] 5 W.W.R. 1; 127 N.R. 1; Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912; (2003), 227 D.L.R. (4th) 1; 108 C.R.R. (2d) 66; 306 N.R. 70; 176 O.A.C. 89; The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; (2003), 223 D.L.R. (4th) 599; [2003] 5 W.W.R. 1; 11 B.C.L.R. (4th) 1; 48 Admin. L.R. (3d) 1; 179 B.C.A.C. 170; 302 N.R. 34; Devinat v. Canada (Immigration and Refugee Board), [2000] 2 F.C. 212; (1999), 181 D.L.R. (4th) 441; 18 Admin. L.R. (3d) 243; 31 Admin. L.R. (3d) 174; 3 Imm. L.R. (3d) 1; 250 N.R. 326 (C.A.).
referred to:
Lalonde v. Ontario (Health Services Restructuring Commission) (2001), 56 O.R. (3d) 505 (Eng.); 56 O.R. (3d) 577 (Fr.); 208 D.L.R. (4th) 577; 38 Admin. L.R. (3d) 1; 89 C.R.R. (2d) 1; 153 O.A.C. 1 (C.A.); Canada (Commissioner of Official Languages) v. Canada (Department of Justice) (2001), 35 Admin. L.R. (3d) 46; 194 F.T.R. 181 (F.C.T.D.); Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), [2004] 1 F.C.R. 136; (2003), 239 F.T.R. 178 (T.D.).
APPLICATION for judicial review of a Royal Proclamation in relation to electoral boundaries redistribution in the Province of New Brunswick. Application granted, declaration of invalidity suspended for one year.
appearances:
Michel Doucet for applicants.
Rosemarie Milllar for respondent.
Pascale Giguère for intervener.
solicitors of record:
Patterson Palmer, Moncton, for applicants.
Deputy Attorney General of Canada for respondent.
Office of the Commissioner of Official Languages for intervener.
The following is the English version of the reasons for order and order rendered by
Shore J.:
INTRODUCTION
[1]The question for consideration is one which gives substance to the entire discussion: was the community of interests, as well as its identity, the historical pattern of the electoral district in the province and its geographic aspect considered in addition to (population count) numbers, in accordance with the requirements of the Electoral Boundaries Readjustment Act?1
HISTORY OF THE CASE
[2]This is an application for judicial review of a proclamation by Her Majesty the Queen entitled Proclamation Declaring the Representation Order to be in Force Effective on the First Dissolution of Parliament that Occurs after August 25, 2004 [SI/2003-154], in which the parish of Allardville and part of the parishes of Saumarez and Bathurst were transferred from the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi.
[3]The applicants are asking:
(a) That a writ of certiorari be issued setting aside and quashing the Proclamation as it relates to the transfer of the following areas of the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi, in New Brunswick:
That part of the county of Gloucester comprised of:
(i) that part of the parish of Allardville lying westerly of a line described as follows: commencing at the most northwesterly corner of the parish of Saumarez; thence northwesterly in a straight line to the most southwesterly corner of the parish of New Bandon;
(ii) that part of the parish of Bathurst lying westerly of a line described as follows: commencing at the intersection of the northerly limit of the parish of Allardville with highway No. 8; thence northerly along said highway to the southerly limit of the city of Bathurst;
At the hearing, the applicants asked that the following request for a writ of prohibition be deleted: ((b)That a writ of prohibition be issued against the respondent requiring that the respondent adhere to the boundaries of the electoral district of Acadie-Bathurst as they were drawn before the Commission was established).2
(c) Costs and disbursements; and
(d) Such further and other order as to this honourable Court may seem just.
FACTS
[4]The number of federal electoral districts in each province, which determines each province's representation in the House of Commons, and the boundaries of the electoral districts are readjusted after each decennial census to reflect changes and movements in the population, in accordance with the Constitution Act, 18673 and the Readjustment Act.
[5]Accordingly, a non-partisan and independent Commission is established to examine existing electoral boundaries and make appropriate changes. The Commission proposes a plan for the readjustment of federal electoral boundaries. That plan is published in newspaper advertisements containing maps of the proposed electoral boundaries. After the proposals are published, the Commission consults the communities affected by the changes to the electoral districts. After consulting the community, the Commission considers the recommendations and concerns of the community, proposes a final plan for the readjustment of federal electoral boundaries.
[6]The Chief Electoral Officer then refers the Commission's report to the Speaker of the House of Commons and prepares a draft electoral representation order.
[7]Once the draft representation order is complete, it is proclaimed, and takes effect on the first dissolution of Parliament that occurs at least one year after its proclamation.
[8]A Federal Electoral Boundaries Commission was established for New Brunswick (the Commission) on April 16, 2002, to propose a plan for the readjustment of federal electoral boundaries.
[9]On May 9, 2002, the Commission wrote an initial report setting out its proposals for the new boundaries of the electoral districts in New Brunswick.
[10]On June 29, 2002, the Commission published its proposals. Amongst others, it recommended that the parish of Allardville and part of the parishes of Saumarez and Bathurst be transferred from the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi. It made that recommendation because if the boundaries were not adjusted, the electoral district of Acadie-Bathurst would have an almost +14 percent variance from the electoral quota, while the neighbouring electoral district of Miramichi would have a variance of -21 percent.
[11]From September 3 to October 17, the Commission held nine public hearings and received submissions and comments from the communities regarding the proposed changes.
[12]At the public hearing for the electoral district of Miramichi held on September 4, 2002, in Miramichi, the Commission received two presentations out of six that dealt specifically with the above-mentioned changes. One presentation supported the Commission's recommendations, while the other opposed them.
[13]At the public hearing for the electoral district of Acadie-Bathurst held on September 5, 2002, in Caraquet, the members of the Commission heard 18 presentations from members of the public, 14 of which dealt specifically with the above-mentioned changes. The presenters asked that the parishes of Allardville, Saumarez and Bathurst be left in the electoral district of Acadie-Bathurst.
[14]The presenters supported preserving the status quo, citing the concepts of community of interests and community of identity. A number of them elaborated on those concepts, arguing that it is difficult to imagine a region that is more linguistically homogeneous and culturally distinct, with as much history, as the region of Acadie-Bathurst. They explained that a great deal of effort has been made in the past to develop the northeastern region of New Brunswick; the proposed changes to the electoral district would destroy what has been accomplished and interfere with further development, both social and economic.
[15]A petition signed by 2,656 people supporting the status quo was also submitted to the members of the Commission.
DECISION OF THE COMMISSION
[16]In the report that the Commission presented to the Standing Committee on Procedure and House Affairs, the Commission maintained its recommendation that the parish of Allardville and part of the parishes of Saumarez and Bathurst be transferred from the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi.4
[17]In February 2003, after the Commission's report was submitted, the Commissioner of Official Languages (the Commissioner) received three complaints against the Commission. The complainants challenged the changes to the electoral boundaries proposed by the Commission for the electoral district of Acadie-Bathurst.
[18]The Commissioner determined the complaints to be admissible. The objective of the investigation was to determine the extent to which the Commission had had regard to section 41 of the Official Languages Act5 when it decided to redraw the boundaries of the electoral district of Acadie-Bathurst.
[19]The Commissioner concluded that the commitment set out in Part VII of the OLA required that the Commission assess the disadvantages and harmful consequences perceived by the official language minority community, having regard to the consequences of the changes made to the electoral district for the development and vitality of the francophone community.6 The Commissioner concluded:
[translation] The Commission's report has not persuaded me that it fully examined the impact of its recommendations on the development and vitality of the official language minority community in the electoral district of Acadie-Bathurst, and I cannot conclude from it that the Commission has discharged its responsibilities in that respect under section 41 of the Official Languages Act. . . .7
[20]The Standing Committee on Procedure and House Affairs, which reviewed the Commission's report, also said:
The Committee, therefore, agrees with Mr. Godin's assertion that in this case, leaving the current boundaries alone and accepting a variance of approximately +14% is both allowable and preferable.
The Committee directs the attention of the Boundaries Commission and other readers to its general comments below, which look to a more practicable approach aimed at achieving a long-term solution to an issue which it suspects will re-occur.8
[21]After taking the objections made by the Committee into consideration, the Commission decided "to return the Parish of Saumarez and a portion of the Parish of Allardville including Saint-Sauveur into the electoral district of Acadie-Bathurst. The Parish of Bathurst and a portion of the Parish of Allardville will remain in the electoral district of Miramichi."9
ISSUES
Section 3 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter)
[22]Does the Proclamation contravene the Charter?
[23]If there is a Charter violation, is it safeguarded by section 1 of the Charter?
Judicial Review
[24]What is the standard of review for a decision of the Commission?
[25]Does the Proclamation contravene section 15 [as am. by R.S.C., (1985) (2nd supp.), c. 6, s. 2; S.C. 1998, c. 15, s. 25] of the Readjustment Act?
Part VII of the OLA
[26]Does the Proclamation contravene Part VII of the OLA?
Remedies
[27]What remedies are available, having regard to the jurisdiction of this Court?
ANALYSIS
Section 3 of the Charter
Does the Proclamation contravene the Charter?
[28]In Reference Re Prov. Electoral Boundaries (Sask.),10 the Supreme Court of Canada examined the principles set out in section 3 of the Charter.11 McLachlin J. (as she then was), writing for the majority, concluded that the purpose of the right to vote enshrined in section 3 of the Charter was the right to effective representation, and not merely parity of voting power.12
[29]In the opinion of McLachlin J., the conditions of effective representation are as follows:
But parity of voting power, though of prime importance, is not the only factor to be taken into account in ensuring effective representation.
. . .
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.
First, absolute parity is impossible. It is impossible to draw boundary lines which guarantee exactly the same number of voters in each district. Voters die, voters move. Even with the aid of frequent censuses, voter parity is impossible.
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. These are but examples of considerations which may justify departure from absolute voter parity in the pursuit of more effective representation; the list is not closed.
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 with another's should not be countenanced. I adhere to the proposition asserted in Dixon, supra, at p. 414, that "only those deviations should be admitted which can be 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."13
[30]Accordingly, relative parity of voting power is the first condition of effective representation; but other factors, for example geographic features, history, the interests of the community and representation of minority groups, had to be considered, and could justify deviations from absolute voter parity.
[31]In Carter, the Supreme Court of Canada also held that in determining whether the legislature has complied with section 3 of the Charter in creating electoral districts, the courts ought not to find that there has been a violation unless "reasonable persons applying the appropriate principles . . . could not have set the electoral boundaries as they exist."14
[32]The Court held that the reason for this caution is the complexity of the electoral boundary readjustment process. The commissions are required to balance conflicting policies: on the one hand, the policy of voting power parity, which stresses the importance of the individual; and on the other, the principle of community of interest, which stresses the group. Finding a balance between the two is not an exact science, and the courts will therefore respect the choices made by the commissions if their decisions are defensible.
[33]In this case, the applicants introduced evidence to show that there is a community of interest in Acadie-Bathurst. They filed seven affidavits by residents of the former electoral district of Acadie-Bathurst. All seven attested to the strong linguistic, historic, social and administrative ties that exist in Acadie-Bathurst, and the relative absence of ties between the communities in the former electoral district of Acadie-Bathurst and those in Miramichi. For example, Carmel Raîche, a resident of Allardville, and Ian Oliver, a resident of South Tetagouche, stated in their affidavits that they themselves, like the populations of Allardville and South Tetagouche, go to school, do their shopping, use the hospital and go to recreational centres in the Bathurst region, and not in Miramichi.15
[34]The applicants also filed an affidavit by an expert witness, Denis Duval. Professor Duval is a professor of political science. He prepared a study entitled "Rapport d'étude des limites des circonscriptions proposées par la Commission de délimitation des circonscriptions électorales fédérales pour le Nouveau-Brunswick" Report concerning the Electoral Boundaries proposed by the Federal Electoral Boundaries Commission for New Brunswick) which he presented to the Commission. Professor Duval concluded in his report that the parishes of Allardville and Bathurst are part of a single community of interest with the other parishes of the former electoral district of Acadie-Bathurst.
[35]The respondent also filed evidence, to show that there is no community of interest in Acadie-Bathurst. The respondent filed two affidavits by expert witnesses, David Johnson and Pierre-Marcel Desjardins.
[36]David Johnson, a professor of political science, criticized Professor Duval's report; he said: "The inherent weakness with Professor Duval's assessment of community interest, however, is that it is static, essentially an assessment of what has been in the past rather than what might become in the future."16
[37]Professor Johnson stated that the readjustment of the electoral boundaries is fair. He explained that even if there is a community of interest in Acadie-Bathurst, with the change to the electoral boundaries new communities of interest may develop within the community in the electoral district of Miramichi.17 He also explained that the fears of the residents in Acadie-Bathurst are groundless. He said that the residents who become members of the electoral district of Miramichi will be able to receive services in French because Canada and New Brunswick are both bilingual, and he added that it is of little consequence whether their member of Parliament is able to speak French because, in his words, "[a]ll elected representatives are called upon to represent the interests of all of their constituents regardless of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, and many other social characteristics inclusive of language".18
[38]Professor Desjardins also criticized Professor Duval's report, but for other reasons. Primarily, he noted that Professor Duval analyzed the entirety of the electoral districts in New Brunswick whose electoral boundaries were readjusted, while Professor Desjardins analyzed the communities affected by the electoral boundaries readjustment.19
[39]After analyzing various criteria, Professor Desjardins concluded:
[translation] . . . in terms of various socioeconomic characteristics, there is little difference between the situation in the electoral districts of Acadie-Bathurst and Miramichi because those communities share multiple characteristics;
As well, I can conclude that, for the subregions, there are no conclusive trends;20
[40]The Court prefers the applicants' evidence to the respondent's. First, Professor Johnson, who testified for the respondent, supported Professor Duval's results. In his affidavit, he said: "This is not in any way to be read as a critique of Professor Duval's empirical findings regarding the existence of a francophone community of interest in Acadie-Bathurst."21
[41]Second, Professor Johnson's report is problematic. He did not take into consideration the legal principles set out in section 3 of the Charter. He criticized the applicants' argument in which they contend that the readjustment of electoral boundaries would dilute the voice of francophones in the electoral districts and create a strong possibility that the member of Parliament would be unable to represent the interests of francophones; he said: "The core proposition here . . . is that any individual is capable of sympathetic reasoning in relation to other individuals. Any person can be sensitive to, concerned about, and capable of responding to the needs of other persons within this society."22 Professor Johnson regarded the applicants' fears as "illogical". (At the hearing, the respondent apologized to the Court and the applicants for the use of the expression "illogical" by Professor Johnson instead of some other word, but nonetheless, those fears were disregarded by Professor Johnson.)23
[42]The Supreme Court of Canada has in fact rejected that way of looking at things. In Carter, the Court said: "to insist on voter parity might deprive citizens with distinct interests of an effective voice in the legislative process as well as of effective assistance from their representatives in their `ombudsman' role."24 The Court acknowledged that a minority group's fear that it will not be adequately represented by its member of Parliament was not without basis; the opposite is in fact true, because the reality in a democracy is that an elected representative who is faced with the conflicting interests of the majority and a minority will often have to choose to represent the interests of the majority.
[43]Another problem is that Professor Johnson's report contains a lot of hypotheticals. For example, he wrote that even if there is a community of interest in the former electoral district of Acadie-Bathurst, a community of interest will develop in the new electoral district of Miramichi, without explaining either when or how that will happen.25 His conclusion is simply speculation.
[44]The last problem that the Court sees in Professor Johnson's report is his tendency to exaggerate some points while disregarding the facts that refute his hypothesis. This was particularly evident when he talked about economic community of interest. He concluded that there is a community of interest between the regions of Acadie-Bathurst and Miramichi. He reached that conclusion from testimony given at one of the Commission's hearings.26 On the other hand, he failed to consider the fact that all the other presenters, both individuals and mayors or representatives of organizations, testified that there is a community of interest in the former electoral district of Acadie-Bathurst, but not between Acadie-Bathurst and Miramichi. This bias makes his report less persuasive.
[45]Professor Desjardins' report does not suffer from those flaws. Nonetheless, the Court prefers Professor Duval's report to Professor Desjardins'. The indicators that Professor Duval used for determining the communities of interest are very detailed.27 Professor Desjardins, on the other hand, used fewer and less varied indicators.28 The Court finds that Professor Duval's report is more thorough than Professor Desjardins', and the Court therefore accepts Professor Duval's results.
[46]The Court also believes that the testimony given by the applicants' witnesses is very important. The region spoke with a united voice. Representatives of associations, mayors from the different towns and the member of Parliament for Acadie-Bathurst filed affidavits and made submissions to the Commission. A petition signed by over 2,000 people was presented to the Commission.
[47]The people explained that the region is unique. According to one presenter, it has the highest concentration of Acadians in Canada.29 In the course of the hearings, a number of presenters talked about the importance of having a strong Acadian voice, and reminded the members of the Commission of the historical wrongs done to the Acadians.30 Having regard to the evidence as a whole, the Court finds that there is a community of interest in Acadie-Bathurst.
[48]The Commission in fact reached the same conclusion. It agreed that there was a community of interest in Acadie-Bathurst, and it was even aware that parity of voting power is not the only consideration in readjusting electoral boundaries. However, it decided that a variance of -21 percent was simply too large, and that despite the existence of a community of interest in Acadie-Bathurst it was necessary to reduce Miramichi's variance from the electoral quota. It therefore transferred the parish of Allardville and part of the parishes of Saumarez and Bathurst to the electoral district of Miramichi.31
[49]Because the primary consideration in determining whether a population has effective representation is voter parity, and that a commission does not contravene section 3 of the Charter unless "reasonable persons applying the appropriate principles . . . could not have set the electoral boundaries as they exist", the Court finds that the Commission did not contravene section 3 of the Charter when it decided to transfer the parishes from Acadie-Bathurst to Miramichi.
[50]That decision is reasonable, and accordingly the Commission did not contravene section 3 of the Charter.
Section 1 of the Charter
[51]However, if the Court is in error and the Commission did contravene section 3 of the Charter, the Court does not believe that the decision can be safeguarded by section 1 of the Charter.
[52]The Supreme Court of Canada stated the test for determining whether a Charter violation is safeguarded by section 1 as follows:
The government first must demonstrate that the objective of the legislation is sufficiently pressing and substantial to warrant violating a Charter right. The objectives must be neither "trivial" nor "discordant with the principles integral to a free and democratic society": Oakes, supra, at p. 138. Once this has been established, the government must then demonstrate that the infringement is proportionate, namely, that the legislation is rationally connected to the objective, that it minimally impairs the Charter right in question, and that the salutary benefits of the legislation outweigh the deleterious effects.32
[53]Under the test in Oakes,33 the Court must weigh the rights of the individual and the needs of society. Evidence regarding the needs of society is therefore needed. The respondent, who has the burden of proof,34 offered nothing on this point. Accordingly, it is impossible to do a proper section 1 analysis, and the respondent has failed to show that the violation was justified.
Does the Proclamation contravene section 15 of the Readjustment Act?
Standard of Review
[54]The respondent contends that the standard of review is the standard of the patently unreasonable decision.
Review Mechanism
[55]The respondent contends that there is no review mechanism provided in the Readjustment Act. (Représentations supplémentaires au sujet des réparations demandées (Supplementary Submissions Regarding the Relief Sought), document filed by the Attorney General of Canada on May 3, 2004, pages 1 to 16; in that document, the respondent examined several scenarios, should the Court decide otherwise, in order to mitigate the effects of a decision that rejects its argument.)
Relative Expertise of the Decision-Makers
[56]In addition, the respondent observed that the members of the Commission included a judge and a lawyer, and that all members of the Commission live in New Brunswick. Accordingly, the Commission had a certain degree of expertise, by virtue of its knowledge of the communities of identity and interest in its province, and it had the ability to dispose of issues that fell within the fields of its members' interests and occupations. The relative expertise of the decision-makers could be a factor in favour of this Court showing greater deference.
Purpose of the Readjustment Act
[57]The respondent submits that one purpose of the Readjustment Act is to give the commissions, and only the commissions, the power to readjust electoral boundaries. To determine how to readjust electoral boundaries, the Commission must consider the various factors set out, to ensure that the purposes of the Readjustment Act are fulfilled. Accordingly, under the Readjustment Act, the Commission must also weigh the interests of different groups. Parliament has also given the Commission very broad discretion, which would seem to indicate that this Court should show considerable deference.
Nature of the Problem
[58]The respondent also submits that the issue that was to be disposed of by the Commission was essentially a factual one, another reason why the Court should show deference.
[59]Based on this analysis, the respondent submits that the standard of review that applies to the Commission's final report is the standard of the patently unreasonable decision.
[60]The specialization of the members of the commissions is not, in itself, in dispute. Rather, it is their interpretation of the situation which is at issue in applying the Readjustment Act.
The Anatomy of the Readjustment Act
[61]The Readjustment Act gave the Commission broad discretion. Section 15 indicates the importance of voter parity, but it also directs the commissions to consider the other factors without diminishing them, and provides the commissions with guidelines for determining what constitutes a reasonable variance.
[62]The Commission does have discretion. The Readjustment Act does not define "community of interest", and uses relatively broad wording. The Commission may therefore depart from the principle of voter parity if certain factors are present. The Court believes that the respondent is not wrong to say that the Commission is given a certain degree of discretion, but it exaggerates the degree of discretion it is given. This also lessens the degree of deference that the Court must show.
The Nature of the Issue
[63]The issue is a question of mixed fact and law, in that it involves the application of section 15 of the Readjustment Act to a fact situation. In order to determine what degree of deference is owed to the decision-maker, the Supreme Court of Canada said: "with respect to questions of mixed fact and law, this factor will call for more deference if the question is fact-intensive, and less deference if it is law-intensive."35
[64]In this case, the question is more a legal one, because it involves the interpretation of section 15 of the Readjustment Act, and this lessens the deference that must be shown by the Court.
[65]The Court believes that the standard of review is the standard of the reasonable decision.
Does the Proclamation Contravene Section 15 of the Readjustment Act?
[66]In its report, the Commission demonstrated that it was aware of the purpose of the Readjustment Act, but this does not prove that it applied the Act correctly when it readjusted the boundaries of the electoral districts of Acadie-Bathurst and Miramichi.
[67]The Commission explained, at a hearing, why it proposed to transfer the parishes from the electoral district of Acadie-Bathurst to the electoral district of Miramichi. It said:
[translation] The first reason [for transferring the parishes to the electoral district of Miramichi] is that there is already a large variance. The variance from the provincial quota is already quite large here in Acadie-Bathurst. A member of Parliament in New Brunswick, each member of Parliament in New Brunswick should ideally represent 73,000 people, in round numbers, 72,950 but we will speak in round numbers, 73,000 people, while the member of Parliament here in Acadie-Bathurst represents 83,000. So there is a large variance here, a 14% variance, which is a large variance. We know that we can go as high as 25 [percent], we know this, but ideally, we should not go above 10, and even, we tried to redraw the map so as not to go above 5, because in Quebec, for example, the neighbouring province, they were able, there, to keep the variances to no more than 3%, so, to comply with the first and most important of the principles for redistributing the electoral map across Canada. So we were a little embarrassed to see two neighbouring electoral districts with a 35,000 difference, with one that has a 10,000 surplus that could really be easily transferred into the one that has only 57,000, while still maintaining the communities of interest in terms of language and in terms of occupation. Because Miramichi is a bilingual electoral district, as I just mentioned, it is about 30% francophone, about 70% anglophone. And I will tell you what we thought, I will tell you what we discussed, and what we thought, so that we can get your reaction, just that, but we said to ourselves when we have an electoral district that is bilingual, and we have three in New Brunswick, we have only three. We have five with an overwhelming English majority and two with an overwhelming francophone majority, and we have three that are truly bilingual. In a bilingual electoral district, do you not think that it is important for the minority to be as large as possible, to be as comfortable as possible? For example, if you have a minority that is two or three percent in an electoral district, it is a little hard on that minority, they do not have a lot of power. But if you have a minority of 30% or 35% in a bilingual electoral district, and that can be increased by another two or three percent, that minority is going to feel more and more comfortable, it will feel better and better, and it will acquire more and more power, and eventually, if Miramichi continues to be more and more bilingual, then the population will necessarily want to elect a bilingual representative. . . .36
[68]There are two points of note to be taken from this passage. We see that the Commission undertook to keep the variance between electoral districts under ten percent. As well, the Commission thought either that there is already a strong enough Acadian minority in Miramichi to be able to give the parishes to be transferred from Acadie-Bathurst to Miramichi a voice, or that by adding Acadian communities to Miramichi there will be a strong enough minority that it will be able to insist that a member of Parliament represent its interests.
[69]The Court finds that the Commission has not interpreted the Readjustment Act in the spirit of the Act. First, while the Commission was entitled to decide that, as a general principle, the variance between electoral districts should not be more than ten percent, it did not consider whether there were electoral districts where, having regard to the community of interest in the region or its geographic features, it would be desirable to depart from the general principle that the variance should not be more than ten percent.
[70]Section 15 of the Readjustment Act reads as follows:
15. (1) In preparing its report, each commission for a province shall, subject to subsection (2), be governed by the following rules:
(a) the division of the province into electoral districts and the description of the boundaries thereof shall proceed on the basis that the population of each electoral district in the province as a result thereof shall, as close as reasonably possible, correspond to the electoral quota for the province, that is to say, the quotient obtained by dividing the population of the province as ascertained by the census by the number of members of the House of Commons to be assigned to the province as calculated by the Chief Electoral Officer under subsection 14(1); and
(b) the commission shall consider the following in determining reasonable electoral district boundaries:
(i) the community of interest or community of identity in or the historical pattern of an electoral district in the province, and
(ii) a manageable geographic size for districts in sparsely populated, rural or northern regions of the province.
(2) The commission may depart from the application of the rule set out in paragraph (1)(a) in any case where the commission considers it necessary or desirable to depart therefrom
(a) in order to respect the community of interest or community of identity in or the historical pattern of an electoral district in the province, or
(b) in order to maintain a manageable geographic size for districts in sparsely populated, rural or northern regions of the province,
but, in departing from the application of the rule set out in paragraph (1)(a), the commission shall make every effort to ensure that, except in circumstances viewed by the commission as being extraordinary, the population of each electoral district in the province remains within twenty-five per cent more or twenty-five per cent less of the electoral quota for the province.
[71]As the Commission observed, the goal of the Readjustment Act is voter parity; however, it does not demand absolute voter parity. Under paragraphs 15(1)(a) and (b) of the Readjustment Act, the commissions are required to consider a reasonable departure from the electoral quota to recognize the community of interest and community of identity in or the historical pattern of an electoral district in a province, and to maintain a manageable geographic size for districts in sparsely populated, rural or northern regions of the province.
[72]On the other hand, subsection 15(2) of the Readjustment Act provides that a commission may consider a more significant departure if it is justified by a community of interest or geographic features. The Readjustment Act does not permit a variance of more than 25 percent, except in extraordinary circumstances, but it is clear that a variance of up to 25 percent is acceptable in individual cases.
[73]In this case, the Commission applied subsection 15(1) when it recognized that there are many rural areas in New Brunswick, and that a variance of ten percent from the electoral quota was therefore reasonable.
[74]However, the evidence shows that it declined to consider whether subsection 15(2) applied in the electoral district of Acadie-Bathurst. In addition to the comments made at the hearings, the report submitted to the Standing Committee on Procedure and House Affairs suggested that the Commission would not in any event let an electoral district depart from the quota by more than 25 percent. The two reasons given for transferring the parishes of Saumarez, Allardville and Bathurst to the electoral district of Miramichi are, first, that the variance between Acadie-Bathurst and Miramichi was too large, and second, that the variance between Acadie-Bathurst and Miramichi and the electoral quota was too large. The numbers were the one and only reason for adding the parishes to Miramichi.
[75]The evidence is not irrefutable. The passage quoted earlier may be read as indicating that the Commission was prepared to go above a ten percent variance if it were necessary. Ultimately, six electoral districts out of ten have a variance of more than ten percent.
[76]A statement made by the Commission offers some clarification regarding its position. At a hearing, a member of the Commission said: "We're trying to stick to 10% on a margin to meet them. Nothing is written in stone but that's what we've adopted. Certainly 25% we don't feel is appropriate for the province of New Brunswick with our global population."37 In extreme cases, the Commission was prepared to allow a variance of 14 percent, but it did not think that it would be reasonable to allow a variance of 25 percent, even where there were communities of interest.
[77]Second, the Commission did not have regard to the material before it when it decided that the parishes of Allardville, Saumarez and Bathurst would have effective representation when they were part of the electoral district of Miramichi.
[78]The Commission did not explain very clearly how it reached the conclusion that there was a community of interest between the parishes in Acadie-Bathurst and Miramichi. In the statement quoted above, the Commission said that either the Acadian minority in Miramichi already has effective representation or adding the Acadian communities to Miramichi will result in effective representation for the minority. Those assertions are both problematic.
[79]The evidence before the Commission showed that the Acadian minority in Miramichi did not have representation. The member of Parliament for Acadie-Bathurst testified that francophones in Miramichi went to see him to get help because they had trouble communicating with their member of Parliament, a unilingual anglophone.38 Another presenter who lived in Acadie-Bathurst testified that very few services were offered in French in Miramichi.39 And residents of Acadian villages that were transferred to Miramichi ten years ago from Beauséjour, a francophone electoral district, testified that they wanted to be transferred back to Beauséjour because they had nothing in common with the Miramichi community.40 That evidence is an indiction of what material was before the Commission in terms of the existence of services and representation in French in Miramichi. Having regard to that evidence, the Court cannot see how the Commission can have concluded that the Acadian community in Miramichi had effective representation.
[80]The conclusion that adding francophone communities to the Acadian community in Miramichi would give that community more weight is just as problematic. The problem is apparent when we compare the percentages of francophones and anglophones before and after the transfer of the parishes of Saumarez, Allardville and Bathurst. In 2001, before the parishes were transferred, anglophones made up 63 percent and francophones 34 percent.41 After the transfer, it was predicted, the anglophone proportion would rise to 64 percent while the francophone proportion would be about 33 percent.42 The Acadian percentage remained unchanged with the addition of the parishes, as did their power.
[81]Last, and realizing just how difficult the Commission's task was, the Court believes that forming communities of interest and increasing a community's political power depend on a large number of factors, and they do not occur simply because a community achieves a critical mass. Adding other members of the community to the electoral district, in the hope that effective representation will follow, is something of a gamble. That position is not consistent with the spirit of the Readjustment Act.
[82]Accordingly, the Commission did not comply with section 15 of the Readjustment Act. It complied with paragraphs 15(1)(a) and (b) when it found that a variance of 10 percent from the electoral quota was reasonable in New Brunswick, but it did not proceed to the second step, that is, it did not consider whether it was desirable to allow a variance provided for in the Act in order to preserve a community of interest in an electoral district. The Commission's extrapolation is in error when it concludes that there was a community of interest or could be a community of interest in Miramichi. For those reasons, the decision is set aside.
Does the Proclamation Contravene Section 41 of the OLA?
[83]The respondent submits that section 41 does not apply to the final report of the Commission because the commitment set out in Part VII of the OLA relates solely to the "Government of Canada". Because the federal electoral boundaries commissions are not part of the Government of Canada, they cannot be bound by the government commitment set out in Part VII of the OLA.
[84]The Commissioner, however, submits that section 42 [as am. by S.C. 1995, c. 11, s. 27] of the OLA clearly and expressly commits federal institutions to implementing the commitment made by the federal government in section 41.
[85]The Court agrees with the Commissioner. As the Commissioner observed, the role of the Minister of Heritage is to "encourage" and "promote" coordination with other ministers and institutions to develop and promote the use of English and French. However, it is the federal institutions that must put the commitment into practice, because the OLA expressly applies to both government institutions and the Government of Canada.
[86]The respondent also argued that the Readjustment Act is the specific legislation that applies to the process of readjusting the boundaries of electoral districts, and not the OLA, which is a law of general application.
[87]The Commissioner contends that the issue is not which of two laws takes precedence, since there is no inconsistency between the obligations imposed by the Readjustment Act and the obligations imposed by the OLA. The Commissioner observed that the respondent made this point in his factum.
[88]The Court also agrees with that argument. The Readjustment Act imposes an obligation on the Commission to consider the community of interest, including a community of interest that is defined by the French language, and the OLA requires that government institutions enhance "the vitality of the . . . French linguistic minority communities in Canada". In fact, the two Acts have similar goals.43
[89]The respondent submits that Part VII of the OLA is declaratory rather than executory and that neither the Government of Canada nor federal institutions are obliged always to give effect to Part VII of the OLA.
[90]On this point, the Court agrees with the respondent. The Court does not believe that the terminology used in section 41 is ambiguous. It is clear, as the Commissioner submits, that the Minister of Canadian Heritage should encourage government institutions to support the development of francophone minority communities. However, in the opinion of the Court, the OLA is to be interpreted in such a way that the legislation does not oblige government institutions to do this. If we refer to the English version, section 42 uses the word "shall" in reference to the Government's obligations, but does not use that word to describe the role of government institutions.
[91]Some other parts of the OLA use imperative language to describe the role of government institutions. The difference between the terminology used in Part VII and the terminology found in the other parts suggests that section 42 is declaratory, and not enforceable.
[92]Last, the respondent contends that Part X of the OLA, which describes the court remedies available, does not provide for any remedy under Part VII because Part X does not entitle an applicant to seek judicial review of a decision made under Part VII.
[93]However, the Commissioner submits that the Court has jurisdiction to intervene in respect of decisions made under Part VII of the OLA.
[94]The two parties cited different case law in support of their arguments.44 In fact, the Court of Appeal has made two conflicting rulings on this point. As the Commissioner contends, the Court concluded in Devinat that it has the authority to review a decision involving parts of the OLA that do not fall under Part X, pursuant to the general jurisdiction assigned to the Court to review decisions of courts and tribunals.45
[95]On the other hand, the Court of Appeal has also concluded, in Ayangma, that Part X of the OLA denies the applicant judicial review in respect of matters involving the parts of the OLA that are not specified in Part X.46
[96]The Court is of the opinion that the decision of the Court of Appeal in Devinat applies. In Devinat, the Court quoted the Judicial Committee of the Privy Council, as follows [Board v. Board, [1919] A.C. 956, at page 962]:
If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing is prescribed, that alone is sufficient to give jurisdiction to the King's Courts of justice. In order to oust jurisdiction, it is necessary, in the absence of a special law excluding it altogether, to plead that jurisdiction exists in some other Court.47
[97]Because that principle is so fundamental to the law, the Court will not interpret the law so as to grant a right but deny a remedy, unless the law expressly precludes that remedy.
[98]In the case of the OLA, the law does not expressly preclude a remedy. Accordingly, under section 18.1 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act,48 the Court has jurisdiction to hear the application for judicial review.
Standard of Review
[99]The standard of review that applies to the decision of the Commission under Part VII of the OLA is similar to the standard of review that applies to decisions of the Commission under the Readjustment Act. Nonetheless, there are a few important differences.
[100]On the other hand, the Commission has discretion to decide whether it is appropriate to apply Part VII of the OLA.
[101]Given that Part VII is declaratory, the Court must show considerable deference to the Commission.
[102]The issue in this case is a question of fact. Having regard to the factors, the standard of review is the standard of the patently unreasonable decision.
[103]The finding made by the Court, that the Commission contravened the Readjustment Act, applies here as well. The Commission decided that, by transferring the parishes from the electoral district of Acadie-Bathurst to the electoral district of Miramichi, it was respecting the community of interest in the parishes. That decision was erroneous, however, because it was made without regard for the evidence before the Commission. As well, saying that the addition of Acadians to the electoral district of Miramichi was going to increase the percentage of Acadians, and would then increase the Acadian community's political power, was patently unreasonable, because the percentage of francophones was not going to rise by adding the parishes of Saumarez, Allardville and Bathurst to the electoral district of Miramichi.
[104]The Court is of the opinion that the Commission tried to apply Part VII of the OLA in a manner in keeping with the intention of Parliament, but that it failed to do so because its findings of fact were erroneous. Accordingly, the Court sets aside the decision of the Commission.
Remedies
What remedies are available, having regard to the jurisdiction of this Court?
[105]The applicants are asking the Court to order:
(a) That a writ of certiorari be issued setting aside and quashing the Proclamation as it relates to the transfer of the following areas of the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi, in New Brunswick:
That part of the county of Gloucester comprised of:
(i) that part of the parish of Allardville lying westerly of a line described as follows: commencing at the most northwesterly corner of the parish of Saumarez; thence northwesterly in a straight line to the most southwesterly corner of the Parish of New Bandon;
(ii) that part of the parish of Bathurst lying westerly of a line described as follows: commencing at the intersection of the northerly limit of the parish of Allardville with highway No. 8; thence northerly along said highway to the southerly limit of the city of Bathurst.
[106]The Court accepts the respondent's argument that the Court does not have the necessary jurisdiction to restore the electoral district of Acadie-Bathurst to what it was before the Commission was established. The Court may, however, set aside the decision of the Commission; but it may not replace that decision with its own.
[107]The respondent also submits that the Court may not set aside only one part of the Proclamation, the part concerning the electoral district of Acadie-Bathurst. The Court agrees with that argument. The Court has jurisdiction to set aside only the parts that are invalidated, when it follows the legal principle requiring that "the valid portion that it seeks to uphold be completely severable from the invalid portion, and that its validity be undeniable".
[108]The Court accepts the respondent's argument that if the Proclamation were set aside the order that preceded it could not be put back into force. If it is not appropriate for the Court to restore an electoral district to what it was before the Commission was established, it would be even less appropriate for the Court to usurp the role of Parliament by dictating all of the electoral boundaries of a province.
[109]The last order sought by the applicants is that the Proclamation be set aside, but they do not challenge the decision of the Governor in Council to make the Proclamation; rather, they challenge the decision of the Commission, which affects them as parties. Consequently, the Court, based on all of the reasoning above, is setting aside the decision of the Commission.
CONCLUSION
[110]The Readjustment Act takes other factors into account, including the community of interests, the identity of the community, and the historical pattern of an electoral district in the province, as well as its geographic aspects. All of this is crucial to ensure that the essence of the legislation is reflected in its overall application, so that its very spirit is apparent and that its interpretation gives it concrete expression in a manner that takes into consideration more than numbers. All of this to ensure that the spirit of the composition of the population is understood in regard to its future which is based on its past.
[111]For all these reasons, the Court grants the application for judicial review only, and, out of deference to the authority in question, it is for that authority, and that authority alone, to decide the means by which to give effect to the relief granted by the Court.
[112]In view of the circumstances, the Court temporarily suspends this declaration of invalidity for a period of one year, to give the authority in question an opportunity to choose the manner in which to give effect to the relief granted by the Court.49
ORDER
The Court orders that:
1. The relief granted by the Court be put into effect within a maximum of one year;
2. Having regard to all of the particular circumstances, including the importance of the issue and the depth of the analysis of the subject as presented by both parties, no costs are awarded.
1 R.S.C., 1985, c. E-3 (the Readjustment Act).
2 The request in parentheses was withdrawn by the applicants, but the original text is reproduced to ensure that it be known that the relief was initially sought.
3 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act 1982, Item 1) [R.S.C., 1985 Appendix II, No. 5].
4 Applicants' Record, Report of the Federal Electoral Boundaries Commission for New Brunswick 2003, Vol. 1, Tab 5, p. 67, at pp. 84-85.
5 R.S.C., 1985 (4th Supp.), c. 31 (the OLA).
6 Applicants' Record, Office of the Commissioner of Official Languages, Final Investigation Report concerning Complaints relating to the Readjustment of the Boundaries of the Federal Electoral District of Acadie-Bathurst by the Federal Electoral Boundaries Commission for New Brunswick, Vol. II, Tab 10, p. 350.
7 Idem, at p. 355.
8 Applicants' Record, Standing Committee on Procedure and House Affairs, Thirtieth Report, Vol. I, Tab 5, pp. 138-144, paras. 36-37.
9 Applicants' Record, Federal Electoral Boundaries Commission for New Brunswick, Disposition by the Commission of Objections Filed by Members of the House of Commons, Vol. I, Tab 5, pp. 148-156.
10 [1991] 2 S.C.R. 158 (Carter).
11 Proclaimed in force April 17, 1982.
12 Carter, supra, note 10 at p. 183.
13 Carter, supra, note 10 at pp. 184-185.
14 Carter, supra, note 10 at p. 189.
15 Applicants' Record, Affidavit of Carmel Raîche, Vol. I, Tab 3, p. 7, at pp. 8-10, paras. 4-10; Applicants' Record, Affidavit of Ian Oliver, Vol. I, Tab 4, p. 22, at pp. 23-24, paras. 4-6.
16 Respondents' Record, Affidavit of David Johnson, Vol. 8, Tab C, p. 2374, at p. 2409, para. 222.
17 Idem, at p. 2411, paras. 232-235.
18 Idem, at pp. 2421-2422, para. 305.
19 Respondent's Record, Affidavit of Pierre-Marcel Desjardins, Vol. 8, Tab D, p. 2449, at p. 2452, para. 21.
20 Idem, at p. 2470, paras. 110-111.
21 Respondent's Record, Affidavit of David Johnson, Vol. 8, Tab C, p. 2374, at p. 2409, para. 223.
22 Idem, at p. 2420, para. 294.
23 Idem, at p. 2418, para. 285.
24 Carter, supra, note 10 at p. 188.
25 Respondent's Record, Affidavit of David Johnson, Vol. 8, Tab C, at p. 2411, paras. 232-235.
26 Idem, at p. 2410, paras. 226-227.
27 Applicants' Record, Affidavit of Denis Duval, Vol. II, Tab 9, p. 201, at pp. 241-242.
28 Respondent's Record, Affidavit of Pierre-Marcel Desjardins, Vol. 8, Tab D, at pp. 2457-2458, para. 56.
29 Respondent's Record, Fernand Losier et al., "Electoral District of Acadie-Bathurst", presented to the Commission, Vol. 5, Tab 40, p. 1592, at p. 1593.
30 Respondent's Record, Document presented by Carmel Raîche and Martin Doiron, Vol. 5, Tab 37, p. 1572, at p. 1574; Respondent's Record, Fernand Losier et al., "Electoral District of Acadie-Bathurst", presented to the Commission, Vol. 5, Tab 40, p. 1592, at p. 1594.
31 Applicants' Record, Report of the Federal Electoral Boundaries Commission for New Brunswick 2003, Vol. 1, Tab 5, p. 67, at pp. 84-85.
32 Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, at para. 59.
33 The Queen v. Oakes, [1986] 1 S.C.R. 103.
34 Figueroa, supra, note 32.
35 Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at para. 34.
36 Respondent's Record, transcript of the public hearing (Acadie-Bathurst) of the Commission at Caraquet, September 5, 2002, Vol. 1, Tab 3, p. 259, at pp. 401-403.
37 Respondent's Record, transcript of the public hearing (Madawaska-Restigouche) of the Commission in Saint-Quentin, September 3, 2002, Vol. 1, Tab 1, p. 67, at p. 68.
38 Respondent's Record, transcript of the public hearing (Acadie-Bathurst) of the Commission in Caraquet, September 5, 2002, Vol. 1, Tab 3, p. 259, at pp. 309-310.
39 Idem, at p. 322.
40 Respondent's Record, transcript of the public hearing (Beauséjour) of the Commission in Shediac, October 17, 2002, Vol. 3, Tab 9, p. 1034, at pp. 1045, 1051, 1095.
41 Applicants' Record, Report of the Federal Electoral Boundaries Commission for New Brunswick 2003, Vol. 1, Tab 5, p. 67, at p. 118.
42 Idem, at p. 119.
43 In the intervener's submission, the decision that should be applied, among other logical conclusions from that interpretation, is Lalonde v. Ontario (Health Services Restructuring Commission) (2001), 56 O.R. (3d) 505 (C.A.), and see the memorandum of fact and law of the intervener Commissioner of Official Languages, at paras. 53-58.
44 Ayangma v. Canada (2002), 221 F.T.R. 81 (F.C.T.D.), at para. 65; affirmed (2003), 303 N.R. 92 (F.C.A.); leave to appeal to the Supreme Court of Canada denied, [2003] S.C.C.A. No. 146 (QL) (Ayangma); Canada (Commissioner of Official Languages) v. Canada (Department of Justice) (2001), 35 Admin. L.R. (3d) 46 (F.C.T.D.), at paras. 90-91; Devinat v. Canada (Immigration and Refugee Board), [2000] 2 F.C. 212 (C.A.) (Devinat); Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), [2004] 1 F.C.R. 136 (T.D.).
45 Devinat, supra, note 44 at paras. 26-28.
46 Ayangma (C.A.), supra, note 44 at para. 31.
47 Devinat, supra, note 44 at para. 30.
48 R.S.C., 1985, c. F-7, s. 1 (as am. by S.C. 2002, c. 8, s. 14).
49 See the appendix filed by the Attorney General, Représentations supplémentaires au sujet des réparations demandées (Supplementary Submissions Regarding the Relief Sought), filed on May 3, 2004, by the solicitor for the respondent (paras. 10-13 inclusive, at pp. 2-6 inclusive).