As discussed in part one, over the last ten years two boundaries commissions, one special commission and a Court of Appeal reference have wrestled with the question of how to improve the chances for Acadians and African Nova Scotians to be elected to the Nova Scotia legislature.
It may have seemed that the matter was settled when the legislature responded positively to the finding of the court and the advice of the two most recent commissions. In late 2019, the legislature approved new electoral boundaries, including a handful of districts with populations falling 25 per cent or more below the provincial average and in the process added four more seats to be contested in the upcoming election. But the Acadian community of Chéticamp, with the support of the Fédération Acadienne de la Nouvelle-Écosse (FANE) is unhappy with the decision and is going to court. Instead of being part of Inverness riding, the village and surrounding area wants its own seat in the House of Assembly.
If Chéticamp’s case proceeds to court we may finally get a ruling on how low can the number of voters in a small district go and, conversely, how much can the votes of residents in larger districts be fairly diluted. When the Court of Appeal delivered its opinion on the 2012 boundaries challenged by FANE it did not provide any guidance on this. Nor contrary to what seems to be the prevailing opinion, did it say that altering the exceptional electoral districts by applying maximum deviation was a violation of the Charter of Rights and Freedoms.
To quote the court decision:
”We do not state that section 3 of the Charter requires that there be protected ridings in Clare, Argyle and Richmond. Rather, under section 3, the body that is authorized by law to craft the electoral boundaries must be allowed to balance the constitutional criteria as set out by the majority’s reasons in Carter, and to express its view on the matter.”
That excerpt, paragraph 135 in a 63-page decision, pretty much says it all, but can benefit from some elaboration. The charter violation stemmed not from the alleged abolishing of the ridings, but from the manner in which it was done. Having set up the independent commission, the attorney general was obliged under section 3 of the charter to let the commission “express its view” on how best to ensure “effective representation.”
The court went on to say that if the government didn’t agree with the Electoral Boundaries Commission (EBC), it was free to bring in legislation amending the EBC’s recommended boundaries. According to the court, “the House of Assembly Act obligates the Government to introduce a bill with the boundaries recommended by the Commission’s final report. Then, according to the House’s normal procedures, the bill may be amended before passage.”
But by choosing a different approach – directing the commission to change its recommendations to fit the terms of reference – the attorney general prevented the commission from “expressing its authentic view of effective representation for electors in Clare, Argyle and Richmond. Hence the Attorney General’s intervention violated the precepts of section 3 of the Charter.”
The commissions
Following the Appeal Court decision the McNeil government allowed the disputed boundaries to stay in place for the 2017 election, but later that year appointed a Commission on Effective Representation to recommend “how best to achieve effective representation for all Acadians and African Nova Scotians.”
That body, also known as the Keefe commission, submitted its report in January 2018. It did not recommend for or against re-establishing the protected districts as they had existed in 2011. And noting that “it would be a mistake to place too much reliance” on protected ridings to guarantee effective representation, the commission presented a range of other ideas for improving representation in both the legislature and elsewhere in government.
Despite the lukewarm support for protected districts the Keefe commission report set the stage for the next step in the process: the hasty appointment of an Electoral Boundaries Commission three years earlier than the legislated ten-year requirement. Following public hearings that were sparsely attended beyond the protected ridings the commission released its final report, ‘Balancing effective representation with voter parity,’ in April 2019. Predictably, the report recommended reinstating the four protected electoral districts of Argyle, Clare, Preston and Richmond. It was accepted by the legislature with little debate and the new electoral boundaries were passed in the fall of 2019.
The new electoral map, reflecting both geographical and community of interest factors, includes seven districts that exceed the 25 per cent deviation. That’s up from three in 2017 – a total that included the districts of Bedford and Hants East that were more than 25 percent above the provincial average. Only one district was more than 25 per cent below the average.
The table lists electoral districts falling outside the 25 percent deviation in 2017 and 2021.
| 2017 | Deviation | 2021 | Deviation |
| Bedford | +50% | Argyle | -52% |
| Hants E. | +29% | Clare | -49% |
| Guysborough-
E.Shore-Tracadie |
-30%
|
Richmond | -44% |
| Guysborough-
Tracadie |
-42% | ||
| Queens | -36% | ||
| Digby-Annapolis | -26% | ||
| Cole Harbour | -26% |
Source: Calculations from boundary commission reports
One electoral district notable by its absence from the table is Preston. As Preston-Dartmouth in 2017, it was 23 per cent below average; as Preston in 2021 it is only 19 percent below. Continuing to refer to Preston as a protected riding is misleading, given that it came into existence in 1992 with a population that was 50 per cent below the provincial average. At the time, the district was more than 25 percent African Nova Scotia. Based on the most recent available numbers, the restored Preston riding is likely no more than 20 per cent African Nova Scotian, thanks mainly to population growth in nearby non-Black communities.
Chéticamp’s challenge
Under the boundaries approved by the legislature in 2019 there were no districts with an upside deviation greater than 25 percent, the result of the flexibility afforded by addition of four more districts. Nevertheless, wide disparities remain. For example, in Argyle, there are 6,461 electors to one MLA while in Waverley-Fall River-Beaverbank there are 16,545 electors to one MLA.
But perhaps the most remarkable aspect of the latest boundaries commission exercise is the fact its members came within a single vote of recommending an electoral district of Chéticamp, a creation that would significantly widen disparity in voting power beyond the gap that already exists.
The boundaries commission devoted a lot of consideration and two public meetings to the subject of a Chéticamp riding before rejecting, by a margin of 5-4, entreaties by the Fédération Acadienne de la Nouvelle-Écosse (FANE) and other to create a 56th seat for the village and its environs. The EBC’s final report stated “it was the will of the majority of commission members to recommend 55 electoral districts,” but did not explicitly explain why.
However, as a protected district, Chéticamp, with at most 4,350 electors[1], would represent a degree of disparity – some 70 percent below the average – that perhaps the majority of commissioners believed went too far. The closest the report comes to an explanation of the rationale behind the majority decision is this statement:
“…we must balance deviation from voter parity with countervailing factors and ask whether the deviation runs the risk of diluting the vote of others to the point that they receive inadequate representation.’ (my italics)
While the majority was relatively mum in defence of its decision, the minority had a lot to say. Four members signed a seven-page Letter of Dissent. Dissenters included two Acadians (including one from Chéticamp) and two members with Cape Breton connections (including Mike Kelloway, the current Liberal MP for the Chéticamp area). The dissenters said Acadians from the area have not had effective representation, citing among other things, the fact that only two Acadians have been elected to the legislature from the Inverness district since Confederation. But their argument for remedying that by increasing the deviation seems to hinge on the acceptance of the notion of a slippery slope.
Usually, when someone talks about a slippery slope they’re warning that a certain course of action will lead to undesirable results. The Letter of Dissent suggests that we’re already headed down the slope, so why stop now? The following is a key passage in the letter.
“There is a right to effective presentation, and elector parity is the prime factor in determining the electoral boundaries. Yet, the Carter (i.e. 1991 Supreme Court) ruling has stipulated that for effective representation to be attained, it may require weighing countervailing factors against parity. In our view, as soon as we begin balancing countervailing factors we believe necessary to enhance effective representation against the prime consideration of voter parity, the ‘primacy of prime’ is weakened, if not neutralized.” (my italics)
Perhaps another way of putting it is “In for a penny, in for a pound.” Once you’ve abandoned the notion of voter parity, why quit until every community of interest has its own electoral district?
There’s nothing to say that FANE, in its recently announced challenge, will use that line of argument before the Supreme Court of Nova Scotia. However, if presented with such an argument, the courts would be hard pressed not to draw the line somewhere. The 2019 boundaries commission concern about “diluting the vote of others” was mentioned by the Supreme Court back in 1991 when it rendered the decision that has given rise to the protected riding phenomenon in Nova Scotia.
“A system which dilutes one citizen’s vote unduly as compared with another citizen’s vote runs the risk of providing inadequate representation to the citizen whose vote is diluted. The legislative power of the citizen whose vote is diluted will be reduced, as may be access to and assistance from his or her representative. The result will be uneven and unfair representation.”
It also pertinent that the original Supreme Court of Canada case came about not from a rural area or community of interest (such as Chéticamp) seeking more deviation from parity, but from parties seeking full voter parity. The court came up with the “effective representation” doctrine as a way of justifying some deviation from parity. The Court didn’t say at what point deviation to accommodate effective representation for one citizen or group of citizens will dilute another citizen’s Charter-guaranteed section 3 “right to vote in an election of members of the House of Commons or of a legislative assembly.”
Regardless of what happens with the Chéticamp challenge, the 1992 approach to enhancing minority representation in the legislature is becoming increasingly shopworn. The Keefe commission and boundaries commissions going back 20 years have expressed doubts about whether protected ridings is a sustainable way to enhance minority representation in provincial governance. In the run-up to the 2021 provincial election, the political parties seem to be doing a better job of nominating women and candidates of colour. Whether that leads to a more diverse House of Assembly will soon be known. However, in the longer term, MLAs should heed the advice of the most recent boundaries commission report and set up a process to “analyze the benefits and failings of Nova Scotia’s electoral system” and consider whether there are viable alternatives such as proportional representation.
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[1] An estimate based on taking 38% of the electors in the electoral district of Inverness and putting them in Inverness census Subdivision “A” which contains that percentage of Inverness County’s population. It is likely an over-estimate. In 2017 provincial election, the number of votes cast in polls around Chéticamp totalled only about 2,500. The population of Subdivision “A” has been falling, from 6,947 in 1991 to 5,076 in 2016 and the number of French speakers has gone from 2,970 to 1,885 over that period.
