Raîche et al. v. Canada (Attorney General), 2004 FC 679

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: May 11, 2004
• Jurisdiction: Canada (Federal)
• Citations: 2004 FC 679;(2004), 252 F.T.R. 221 (FC)

Raîche v. Can. (A.G.) (2004), 252 F.T.R. 221 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] F.T.R. TBEd. MY.048

Carmel Raîche, Ian Oliver, l'Association des Municipalités du Nouveau-Brunswick Inc., La Commission Régionale de l'Aéroport de Bathurst Inc., La Chambre de Commerce du Grand Bathurst et la Ville de Bathurst (demandeurs) v. Procureur général du Canada (défendeur) et Commissaire aux Langues Officielles du Canada (intervenante)

(T-1730-03; 2004 CF 679; 2004 FC 679)

Indexed As: Raîche et al. v. Canada (Attorney General)

Federal Court

Shore, J.

May 11, 2004.

Summary:

A Federal Electoral Boundaries Commission decided that the parish of Allardville and part of the parishes of Saumarez and Bathurst should be transferred from the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi. A Proclamation was made to that effect. The applicants applied for judicial review of the Proclamation.

The Federal Court allowed the application. The court set aside the decision of the Federal Electoral Boundaries Commission. However, the court suspended a 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.

Civil Rights - Topic 130

Voting and other democratic rights - Right to vote - Constituencies - A Federal Electoral Boundaries Commission decided that the parish of Allardville and part of the parishes of Saumarez and Bathurst should be transferred from the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi - The Commission concluded that a variance from the electoral quota of -21 percent for the electoral district of Miramichi was 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 - The Federal Court held that since the primary consideration in determining whether a population had effective representation was voter parity, and since a Commission did not contravene s. 3 of the Charter unless "reasonable persons applying the appropriate principles ... could not have set the electoral boundaries as they exist", the Commission did not contravene s. 3 of the Charter when it decided to transfer the parishes from Acadie-Bathurst to Miramichi - See paragraphs 28 to 50.

Civil Rights - Topic 2703

Language - General principles - Interpretation of language rights legislation - At issue was whether a Proclamation regarding federal electoral boundaries contravened s. 41 in Part VII of the Official Languages Act (OLA) - An argument was made that the Electoral Boundaries Readjustment Act was the specific legislation that applied to the process of readjusting the boundaries of electoral districts, and not the OLA, which was a law of general application - However, the Commissioner of Official Languages contended that the issue was not which of two laws took precedence, since there was no inconsistency between the obligations imposed by the Electoral Boundaries Readjustment Act and the obligations imposed by the OLA - The Federal Court agreed with the Commissioner's contention - The Electoral Boundaries Readjustment Act imposed an obligation on the Federal Electoral Boundaries Commission to consider the community of interest, including a community of interest that was defined by the French language, and the OLA required that government institutions enhance "the vitality of the ... French linguistic minority communities in Canada" - The two Acts had similar goals - See paragraphs 86 to 88.

Civil Rights - Topic 2707

Language - General principles - Institutions of parliament and government of Canada - At issue was whether a Proclamation regarding federal electoral boundaries contravened s. 41 of the Official Languages Act (OLA) - An argument was made that s. 41 did not apply to the final report of a Federal Electoral Boundaries Commission because the commitment set out in Part VII of the OLA related solely to the "Government of Canada" and federal electoral boundaries commissions were not part of the Government of Canada - The Federal Court rejected the argument - Section 42 of the OLA clearly and expressly committed federal institutions to implementing the commitment made by the federal government in s. 41 - The OLA expressly applied to both government institutions and the Government of Canada - See paragraphs 83 to 85.

Civil Rights - Topic 2709

Language - General principles - Nature of language rights - The Federal Court held that Part VII of the Official Languages Act (Advancement of English and French) was declaratory rather than executory and that neither the Government of Canada nor federal institutions were obliged to always give effect to Part VII - See paragraphs 89 to 91.

Civil Rights - Topic 2969

Language - Complaints - Remedies - The applicants applied for judicial review of a Proclamation 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 - At issue was whether, inter alia, the Proclamation violated s. 41 in Part VII of the Official Languages Act (OLA) (Advancement of English and French) - The respondent argued that Part X of the OLA, which described the court remedies available, did not provide for any remedy in an action under Part VII because Part X did not entitle an applicant to seek judicial review of a decision made under Part VII - The Federal Court stated that "the court will not interpret the law so as to grant a right but deny a remedy, unless the law expressly precludes that remedy. In the case of the OLA, the law does not expressly preclude a remedy. Accordingly, under s. 18.1 of the Federal Courts Act, the court has jurisdiction to hear the application for judicial review" - See paragraphs 92 to 98.

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Trial Division - Relief against federal boards, commissions or tribunals - [See Civil Rights - Topic 2969 ].

Elections - Topic 3043

Voting and ballots - Constituencies (incl. electoral districts) - Size - [See Civil Rights - Topic 130 ].

Elections - Topic 3043

Voting and ballots - Constituencies (incl. electoral districts) - Size - A Federal Electoral Boundaries Commission decided to transfer the parish of Allardville and part of the parishes of Saumarez and Bathurst from the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi - The Commission concluded that a variance from the electoral quota of -21 percent for the electoral district of Miramichi was 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 - The Federal Court held that the Commission did not comply with s. 15 of the Electoral Boundaries Readjustment Act where 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 was in error when it concluded that there was a community of interest or could be a community of interest in Miramichi - See paragraphs 66 to 82.

Elections - Topic 3043

Voting and ballots - Constituencies (incl. electoral districts) - Size - A Federal Electoral Boundaries Commission decided that the parish of Allardville and part of the parishes of Saumarez and Bathurst should be transferred from the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi - A Proclamation was made to that effect - The applicants applied for judicial review of the Proclamation - At issue was whether, inter alia, the Proclamation violated s. 41 in Part VII of the Official Languages Act (OLA) (Advancement of English and French) - The Federal Court held that the Commission failed to apply Part VII of the OLA in a manner in keeping with the intention of Parliament because its findings of fact were erroneous - The Commission's finding 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, was erroneous because it was made without regard for the evidence - Also, the Commission 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 - See paragraphs 103 to 104.

Elections - Topic 3049

Voting and ballots - Constituencies (incl. electoral districts) - Electoral boundaries commissions (incl. judicial review) - A Federal Electoral Boundaries Commission decided that the parish of Allardville and part of the parishes of Saumarez and Bathurst should be transferred from the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi - On an application for judicial review, the Federal Court held that the issue of whether the Commission complied with s. 15 of the Electoral Boundaries Readjustment Act was reviewable on a standard of reasonableness - See paragraphs 54 to 65.

Elections - Topic 3049

Voting and ballots - Constituencies (incl. electoral districts) - Electoral boundaries commissions (incl. judicial review) - A Federal Electoral Boundaries Commission decided that the parish of Allardville and part of the parishes of Saumarez and Bathurst should be transferred from the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi - A Proclamation was made to that effect - The applicants applied for judicial review of the Proclamation - At issue was whether, inter alia, the Proclamation violated s. 41 in Part VII of the Official Languages Act (OLA) (Advancement of English and French) - The Federal Court held that the standard of review applicable to the decision of the Federal Electoral Boundaries Commission under Part VII of the OLA was that of patent unreasonableness - See paragraphs 99 to 102.

Cases Noticed:

Reference Re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; 127 N.R. 1; 94 Sask.R. 161, consd. [para. 28, footnote 10].

Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912; 306 N.R. 70; 176 O.A.C. 89; 2003 SCC 37, refd to. [para. 52, footnote 32].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 53, footnote 33].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 223 D.L.R.(4th) 599; 2003 SCC 19, refd to. [para. 63, footnote 35].

Lalonde et al. v. Commission de restructuration des services de santé (Ont.) (2001), 153 O.A.C. 1; 56 O.R.(3d) 577 (C.A.), refd to. [para. 88, footnote 43].

Ayangma v. Canada (2002), 221 F.T.R. 81; 2002 FCT 707, affd. (2003), 303 N.R. 92; 2003 FCA 149, leave to appeal denied [2003] S.C.C.A. No. 146, refd to. [para. 94, footnote 44].

Commissioner of Official Languages (Can.) v. Canada (Minister of Justice) (2001), 194 F.T.R. 181; 2001 FCT 239, refd to. [para. 94, footnote 44].

Devinat v. Commission de l'immigration et du statut de réfugié du Canada, [2000] 2 F.C. 212; 250 N.R. 326 (F.C.A.), folld. [para. 94, footnote 44].

Forum des maires de la Péninsule Acadienne v. Agence Canadienne de l'inspection des aliments (2003), 239 F.T.R. 178; 2003 FC 1048, refd to. [para. 94, footnote 44].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 3 [par. 28].

Electoral Boundaries Readjustment Act, R.S.C. 1985, c. E-3, sect. 15 [para. 70].

Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, sect. 41 [para. 83].

Counsel:

Michel Doucet, for the applicants;

Rosemarie Millar, for the respondent;

Pascale Giguère, for the intervenor.

Solicitors of Record:

Patterson, Palmer, Moncton, New Brunswick, for the applicants;

Department of Justice Canada, Ottawa, Ontario, for the respondent;

Commissioner of Official Languages, Ottawa, Ontario, for the intervenor.

This application was heard on May 3 and 4, 2004, at Fredericton, New Brunswick, before Shore, J., of the Federal Court, who delivered the following decision on May 11, 2004.