Supreme Court quashes Quebec legislature’s plan to delay electoral boundary redistribution

The Supreme Court of Canada has quashed the Quebec legislature’s plan to delay its electoral boundary redistribution.

The decision comes after the provincial government’s move last year to suspend the independent boundary commission's review of an electoral map until after the next general election. In written reasons released late last week, the Court found the legislation violated the right to vote, as set out in section three of the Charter of Rights and Freedoms, and deemed it unconstitutional.

The facts of the case date back to 2023, when the independent boundary commission proposed a new electoral map that would have removed a riding from the Gaspesie region due to a declining population. Arguing the move hurt regional representation, the National Assembly unanimously passed a bill to delay the commission’s work until after this fall’s election. That was challenged in court by Xavier-Antoine Lalande and others.

The Quebec Superior Court found the delay infringed section three of the Charter, particularly because of how the older riding boundaries affected “effective representation.” However, it found this was saved by section one of the Charter because the infringement was minimally impairing.

This Oakes analysis was challenged on appeal. The Quebec Court of Appeal found that the impairment was not minimally impairing and that the law delaying the commission’s work was of no force and effect. This was appealed to the Supreme Court of Canada, which dismissed it in a 7-2 decision.

Alternative options available

In its written reasons, the Court said there were other options available to the legislature beyond suspending the commission’s work.

“The legislature had at least one alternative option, less impairing within the meaning of Oakes, that would have enabled the pressing and substantial objective to be achieved while minimizing the dilution of the right to vote of half a million electors and the legislative interruption of the independent process undertaken by the Commission de la représentation électorale,” Justice Nicholas Kasirer wrote for the majority.

“As the Court of Appeal explained, it was possible, among other things, for the legislature to enact a law temporarily protecting the electoral divisions in Gaspésie while leaving the Commission to complete its work for the rest of Quebec.”

Justices Malcolm Rowe and Suzanne Côté both felt the law delaying the new electoral map was minimally impairing because there were no other realistic options. Further, they said there was no rush, as Quebec’s Election Act requires redrawing the map after every other election rather than after every decennial census.

“We are proud to observe that electoral parity is maintained in Canadian electoral jurisprudence and that political majority or even unanimity can’t resist a Charter test in respect of the right to vote entrenched in the Canadian Charter of Rights and Freedoms,” Daniel Goupil of PFD Avocats in Castonguay, Quebec, who was counsel for Lalande, said in an emailed statement.

Vibert Jack, litigation director of the BC Civil Liberties Association, which intervened in the case, says the case leaves unanswered questions about the role of independent commissions in setting boundaries.

“The dissent says that’s not a constitutional requirement, so interfering with that process may not necessarily be a breach of section three, but under what circumstances would interfering in that process be a breach? That’s a bit unclear.”

Christine Davies, a partner with Goldblatt Partners LLP in Toronto, who was not involved in the case, says the focus on the section one analysis was interesting because there has been a variation in that analysis in matters involving voting rights. She notes the Superior Court’s view was that section three has both procedural and substantive components flowing from the [Saskatchewan] provincial electoral boundaries case decided by the Supreme Court many years ago.

The lower court considered the independent process of drawing the boundaries of an area where a potential section three breach could be considered, but ultimately decided that it wasn’t an issue here. But she says the Court did consider whether the differences in population between ridings could also give rise to a section three breach.
In the Saskatchewan reference, Chief Justice Beverley McLachlin articulated the concept of effective representation, which had long been understood as the heart of section three and, in fact, its foundational and guiding principle. Davies says under that approach, you don’t need strict numerical parity between electoral districts because other factors, in addition to numerical equality, may justify variance to achieve effective representation and justify the variance between urban and rural ridings.

The importance of independent commissions

Section three analyses usually include a structural component on the running of a free and fair election with impartial agents, and the setting of electoral boundaries is an important structural component. From that perspective, she says it’s important to have independent commissions to help determine appropriate electoral boundaries, and account for numerical equivalence considerations and anything else that might bear on the question of effective representation.

The independence of those commissions has long been a Canadian feature that helps prevent partisan self-dealing, such as gerrymandering. Davies notes that the Superior Court decision stopped short of saying there must be an independent process, but left the possibility open. So, there could be a case in the future where someone has to decide that very question: whether the lack of an independent process, or political interference with it, gives rise to a section three breach.

“They did consider it significant that there was a mid-stream interference with the commission’s work, and the combination of both the procedural interference as well as the substantive concern that they had about the disparities that would be entrenched between ridings was what gave rise to the breach,” she says.

Eyes on Alberta

The absence of gerrymandering is not determinative of a breach, as this case did have the unanimous support of the National Assembly. But any deviation from the norm of independence is suspect, and will give rise to a need for a very careful review by courts. Davies says it’s possible the situation in Alberta, where the government has decided to forgo the bipartisan commission's work in favour of a new process driven largely by the government’s initiative, could be an opportunity for the courts to consider this framework.

“Based on what we’ve seen, certainly the fact there’s been any change compared to what would have been done under a commission-based system may not be determinative, but it will certainly be of interest,” she says.

“Anyone bringing forward this type of claim presumably would also want to be looking carefully at any substantive variances, and the extent to which they could or could not be explained by other principles that would be consistent with effective representation.”

Anaïs Bussières McNicholl, director of the fundamental freedoms program of the Canadian Civil Liberties Association, who also intervened in the case, says that although the Alberta case has a different factual basis when it comes to allegations of gerrymandering, the question remains whether the legislature can halt the statutory process to redraw boundaries and not replace it with something that respects section three principles and requirements.

In this case, the attorney general of Quebec admitted a breach of voting rights but said it was justified in the circumstances.

“One important point of the majority reasons was the fact that a decision was unanimously made by the legislature may be helpful to confirm that it was a decision that was non-partisan and in good faith, but it’s not indicative of whether or not the legislation is Charter-compliant,” she says.

“Charter rights are not a popularity contest.”