Reference Re Provincial Electoral Boundaries (Sask.), (1991) 127 N.R. 1 (SCC)

• Judge: McLachlin, Stevenson and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 06, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 127 N.R. 1 (SCC);5 CRR (2d) 1;[1991] 5 WWR 1;94 Sask R 161;81 DLR (4th) 16;[1991] SCJ No 46 (QL);127 NR 1;1991 CanLII 61 (SCC);[1991] 2 SCR 158

Ref. Re Prov. Electoral Boundaries (1991), 127 N.R. 1 (SCC)

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[French language version follows English language version]

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

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Attorney General for Saskatchewan v. Roger Carter, Q.C. and Attorney General of Canada, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Prince Edward Island, Attorney General for Alberta, Attorney General of Newfoundland, Minister of Justice of the Northwest Territories, Minister of Justice of the Yukon, John F. Conway, British Columbia Civil Liberties Association, Douglas Billingsley, Wilson McBryan, Leonard Jason, Daniel Wilde, Alberta Association of Municipal Districts & Counties, City of Edmonton, City of Grande Prairie, Equal Justice For All

Indexed As: Reference Re Provincial Electoral Boundaries (Sask.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé,

Sopinka, Gonthier, Cory,

McLachlin, Stevenson and

Iacobucci, JJ.

June 6, 1991.

Summary:

The Representation Act, 1989 of Saskatchewan, created 66 electoral constitu­encies. Instead of allocating the constitu­encies on a strict application of the one man-one vote principle, the Act made an initial allocation based on class. The urban areas were given 29 seats; the rural areas 35 seats and the northern region was given two seats. The Act also permitted a substantial variation in the populations within the classes as well as between them. Some urban voters submitted that their s. 3 Charter right to vote was contravened because the value of their vote was diluted. The matter was the subject of a reference to the Saskatchewan Court of Appeal.

The Saskatchewan Court of Appeal, in a decision reported at [1991] 3 W.W.R. 593; 90 Sask.R. 161, ruled that the allocation violated the Charter. Nevertheless, the court also held that the measures in regard to the two northern constituencies were a reason­able limitation that was saved by s. 1 of the Charter. The Government of Saskatchewan appealed.

The Supreme Court of Canada (Lamer, C.J.C., Cory and L'Heureux-Dubé, JJ., dissenting) allowed the appeal.

Civil Rights - Topic 130

Voting and other democratic rights - Right to vote - Constituencies - Size - Number of voters - The Representation Act, 1989, changed Saskatchewan's electoral constitu­ency boundaries - Rural constituencies had fewer voters than urban constituencies - There was also a sizable variation in the number of voters in constituencies of the same class - Certain urban voters sub­mitted that the discrepancy contravened their s. 3 Charter right to vote - The Supreme Court of Canada affirmed the legislation - The court stated that in Canada, the guiding ideal was the principle of effective representation, not that of absolute voter parity - In that way, diver­sity in the Canadian mosaic arising from interests, geography and class could be afforded due consideration - See para­graphs 18 to 35.

Civil Rights - Topic 130

Voting and other democratic rights - Right to vote - Constituencies - Size - Number of voters - The Representation Act, 1989, created 35 rural and 29 urban electoral constituencies in southern Saskatchewan - The urban voters submitted that their s. 3 Charter right to vote was debased because rural voters were given control of the legislature even though there could be more voters in urban areas - Therefore, the one man-one vote principle was infringed - The province claimed the Charter infringement was a reasonable limitation under s. 1, because the rural areas were more difficult to represent and needed more members in the Legislature - The Supreme Court of Canada ruled that the Act did not contravene the s. 3 Charter right to vote - See paragraphs 55 and 63.

Civil Rights - Topic 130

Voting and other democratic rights - Right to vote - Constituencies - Size - Number of voters - The Representation Act, 1989, created 35 rural and 29 urban electoral constituencies in southern Saskatchewan - Section 20(a)(i) allowed a 25% variation in the populations of those constituencies - Some urban voters submitted that their s. 3 Charter right to vote was infringed because the urban constituencies were larger and that meant the value of their vote was debased - The province claimed the variations in constituency populations were a reasonable limitation because the rural constituencies were harder to repre­sent - The Supreme Court of Canada held that the legislation did not contravene the s. 3 Charter right to vote - See paragraphs 55 and 63.

Civil Rights - Topic 130

Voting and other democratic rights - Right to vote - Constituencies - Size - Number of voters - Deviation from equal voting power - The Representation Act, 1989, created urban, rural and northern constitu­encies - Substantial variations existed in the number of voters resident in those constituencies - The Act stated that nor­thern constituency population should not vary by more than 50% and southern constituencies (i.e., the urban and rural constituencies) by more than 25% - Urban voters submitted that their s. 3 Charter right to vote was contravened because the value of their vote was diluted - The Supreme Court of Canada ruled that the legislation did not contravene the Charter - See paragraphs 55 and 63.

Civil Rights - Topic 130

Voting and other democratic rights - Right to vote - Constituencies - Size - Number of voters - The Representation Act, 1989, created urban, rural and northern electoral constituencies - The number of constitu­encies in each class was fixed with rural being the largest class - A substantial variation in voter population existed between constituencies within the same class as well as between constituencies of different classes - Urban voters submitted that their s. 3 Charter right to vote was contravened because the value of their vote was debased - The Supreme Court of Canada ruled that the legislation did not contravene s. 3 of the Charter - See para­graphs 55 and 63.

Civil Rights - Topic 8341

Canadian Charter of Rights and Freedoms - Application - Exceptions - General - Voting - The province of Saskatchewan enacted an electoral constituency re-allo­cation scheme - The constituencies were divided into urban, rural and northern cate­gories - Urban constituencies had more voters than the other categories - Certain urban voters submitted that the value of their vote was diluted and that the provi­sion contravened the s. 3 Charter right to vote - Supporters of the legislation claimed that the Charter had no application because of legislation permitting the crea­tion of constituencies formed part of the Constitution of Canada and hence was not subject to the Charter - The Supreme Court of Canada held that the legislation was subject to Charter scrutiny - See paragraphs 6 to 8, 60.

Cases Noticed:

Dixon v. B.C. (A.G.), [1987] 1 W.W.R. 313; 7 B.C.L.R.(2d) 174; 31 D.L.R.(4th) 546; 26 C.R.R. 369, consd. [para. 8].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 18 C.C.C.(3d) 385; 13 C.R.R. 64; 85 C.L.L.C. 14,023, consd. [paras. 11, 14].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; [1984] 6 W.W.R. 577; 55 N.R. 241; 55 A.R. 291; 11 D.L.R.(4th) 641; 33 Alta. L.R.(2d) 193; 14 C.C.C.(3d) 97; 2 C.P.R.(3d) 1; 41 C.R.(3d) 97; 27 B.L.R. 297; 9 C.R.R. 355; 84 D.T.C. 6467, refd to. [para. 13].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; [1986] 1 W.W.R. 481; 63 N.R. 266; 24 D.L.R.(4th) 536; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 36 M.V.R. 240; 69 B.C. L.R. 145; 18 C.R.R. 30, refd to. [para. 13].

Edwards v. Attorney General for Canada, [1930] A.C. 124, refd to. [para. 13].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321; 9 D.L.R.(4th) 161, consd. [para. 14].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 35 D.L.R.(4th) 1; 28 C.R.R. 1; 55 C.R.(3d) 193, refd to. [para. 15].

R. v. Edward Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

McGowan v. Maryland (1961), 366 U.S. 420, refd to. [para. 15].

R. v. Schwartz, [1988] 2 S.C.R. 443; [1989] 1 W.W.R. 289; 88 N.R. 90; 56 Man.R.(2d) 92; 45 C.C.C.(3d) 97; 66 C.R.(3d) 251, refd to. [para. 15].

United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182; 48 C.C.C.(3d) 193, refd to. [para. 15].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 53 O.R.(2d) 719; 24 C.C.C.(3d) 321; 50 C.R.(3d) 1; 19 C.R.R. 308, consd. [paras. 16, 34].

Dixon v. B.C. (A.G.), [1989] 4 W.W.R. 393; 35 B.C.L.R.(2d) 273, consd. [paras. 21, 27, 29].

Baker v. Carr (1962), 369 U.S. 186, refd to. [para. 29].

Karcher v. Daggett (1983), 462 U.S. 725, refd to. [para. 29].

Kirkpatrick v. Preisler (1969), 394 U.S. 526, refd to. [para. 29].

A.G. (Aus.)(Ex rel. McKinlay) v. Com­monwealth (1975), 135 C.L.R. 1, consd. [para. 31].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; [1987] 3 W.W.R. 577; 74 N.R. 99; 78 A.R. 1, refd to. [para. 36].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Schmidt v. Canada, United States of America, Ontario (Attorney General) and Metro West Detention Center, [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 36].

Auditor General of Canada v. Canada (Minister of Energy, Mines and Resources) et al., [1989] 2 S.C.R. 49; 97 N.R. 241, refd to. [para. 36].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 3]; sect. 3 [paras. 9, 39, 40, 59].

Constituency Boundaries Commission Act, S.S. 1972, c. 18, sect. 16 [para. 73].

Electoral Boundaries Commission Act, S.S. 1986-87-88, c. E-6.1, sect. 14 [paras. 3, 61]; sect. 20 [paras. 3, 60].

Electoral Boundaries Commission Act, S.S. 1991, c. E-6.11, sect. 9 [para. 74].

Representation Act, S.S. 1989-90, c. R-20.2, sect. 20 [para. 46].

Representation Act, S.S. 1980-81, c. R-20.1, generally [para. 42].

Representation in the House of Commons, Act to re-adjust, S.C. 1872, c. 13, generally [para. 23].

Authors and Works Noticed:

Electoral Boundaries Commission (1988), Final Report (Sask.), pp. 4 [para. 47]; 7 [para. 52].

Counsel:

Robert G. Richards and Thomson Irvine, for the appellant;

Roger Carter, Q.C., for the respondent;

Ivan G. Whitehall, Q.C., and Susan D. Clarke, for the intervener the Attorney General of Canada;

Louis Rochette and Marise Visocchi, for the intervener the Attorney General of Quebec;

E. Robert A. Edwards, Q.C., and Frank A.V. Falzon, for the intervener the At­torney General of British Columbia;

Rosemary Scott and Gordon L. Campbell, for the intervener the Attorney General of Prince Edward Island;

Peter M. Owen, Q.C., and P. Jon Faulds, for the intervener the Attorney General for Alberta;

B. Gale Welsh, for the intervener the Attorney General of Newfoundland;

Bernard W. Funston and Elizabeth J. Stewart, for the intervener the Minister of Justice of the Northwest Territories;

T. Murray Rankin, for the intervener the Minister of Justice of the Yukon;

Peter T. Costigan, for the intervener the Alberta Association of Municipal Dis­tricts and Counties;

John F. Conway, for the intervener John F. Conway;

Robert D. Holmes, for the intervener the British Columbia Civil Liberties Associ­ation;

Donald J. Boyer, Q.C., for the interveners Douglas Billingsley, Wilson McBryan, Leonard Jason and Daniel Wilde;

Timothy J. Christian, for the interveners the Cities of Edmonton and Grande Prairie;

Larry W. Kowalchuck, for the intervener Equal Justice for All;

Solicitors of Record:

Brian Barrington-Foote, Regina, Saskatchewan, for the appellant;

Roger Carter, Saskatoon, Saskatchewan, for the respondent;

J.C. Tait, Ottawa, Ontario, for the intervener the Attorney General of Canada;

Attorney General of Quebec, Sainte-Foy, for the intervener the Attorney General of Quebec;

Attorney General of British Columbia, Victoria, B.C., for the intervener the Attorney General of British Columbia;

Stewart McKelvey Stirling Scales, Char­lottetown, P.E.I., for the intervener the Attorney General of Prince Edward Island;

Field & Field Perraton Masuch, Edmonton, Alberta, for the intervener the Attorney General for Alberta;

Paul D. Dicks, St. John's, Newfoundland, for the intervener the Attorney General of Newfoundland;

Minister of Justice of the Northwest Terri­tories, Yellowknife, N.W.T., for the intervener the Minister of Justice of the Northwest Territories;

Arvay, Finlay, Victoria, B.C., for the intervener the Minister of Justice of the Yukon;

John F. Conway, Regina, Saskatchewan, for the intervener John F. Conway;

Robert D. Holmes, Vancouver, B.C., for the intervener the British Columbia Civil Liberties Association;

Donald J. Boyer, Edmonton, Alberta, for the interveners Douglas Billingsley, Wilson McBryan, Leonard Jason and Daniel Wilde;

Brownlee Fryett, Edmonton, Alberta, for the intervener the Alberta Association of Municipal Districts and Counties;

Timothy J. Christian and June M. Ross, Edmonton, Alberta, for the interveners the cities of Edmonton and Grande Prairie;

Larry W. Kowalchuk, Saskatoon, Saskatchewan, for the intervener Equal Justice for All.

This appeal was heard on April 29 and 30, 1991, by Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, Mc­Lachlin, Stevenson and Iacobucci, JJ., of the Supreme Court of Canada.

On June 6, 1991, the following judgments were delivered in both official languages by the Supreme Court of Canada:

McLachlin, J. (La Forest, Gonthier, Stevenson and Iacobucci, JJ., concur­ring) - see paragraphs 1 to 57;

Sopinka, J. (concurring with McLachlin, J.) - see paragraphs 58 to 64;

Cory, J., dissenting (Lamer, C.J.C. and L'Heureux-Dubé, J., concurring) - see para­graphs 65 to 92.