Excerpt from the Official Report of
DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)


February 25, 2014

Debate on the Second Reading of BILL 2 — Electoral Boundaries Commission Amendmnet Act, 2014

S. Simpson: I'm pleased to take the opportunity to take my place to respond in second reading to Bill 2, the Electoral Boundaries Commission Act, 2014.

For people to understand what this legislation does, you need to understand a little bit about how we make the decisions about representation, about boundaries, about how these things work to create this place and create the space for the 85 of us to come together as legislators.

We appoint an Electoral Boundaries Commission. That commission is appointed every couple of terms. It's appointed with a current or a retired Supreme Court or Appeal Court justice; a representative from the Speaker, appointed by the Speaker; and the Chief Electoral Officer.

They form this commission. It's an independent commission. It's a commission that is beholden politically to nobody. That commission goes out, and it determines a number of things.

Historically, it determines the number of seats — whether you change the number of seats in the Legislature. It also determines the boundaries of constituencies and, in that sense, of representation. It considers a whole range of criteria in doing that and in making those decisions.

It's an independent body. It takes about a year of time to do its work and to produce a report that comes back to the Legislature. We get to deal with that report here in the Legislature, deciding whether to accept that report, reject it or propose an amendment to it. That's the process that has historically been used.

What Bill 2 does is change that process in a couple of ways. The first thing it does is it freezes the number of seats at 85 seats.

I would say at the outset that that's a decision…. I would agree with the Jobs Minister when she says that there's nobody clamouring in this province to create more politicians in the Legislature. I think that's true. As our critic the member for Nanaimo said, we'd be happy to endorse that in a minute.

Of course, if the Justice Minister wanted to amend this bill and drop the rest of it and just say we're freezing at 85 seats and go to work, we'd have a unanimous vote in this House tomorrow to support that decision — that we would freeze at 85 seats and tell the commission to go and do its work within the context of 85 seats. That's not the question here.

The other thing that the legislation does is it essentially red-circles a number of regions of the province. What it does is it takes 17 seats, 20 percent of the members in this House, 20 percent of the MLAs, and red-circles their constituencies.

In the Cariboo-Thompson region it takes Cariboo North, Cariboo-Chilcotin, Fraser-Nicola, Kamloops–North Thompson and Kamloops–South Thompson. In the Columbia-Kootenay region — Columbia River–Revelstoke, Kootenay West, Nelson-Creston and Kootenay East. In the north region — North Coast, Skeena, Stikine, Peace River North, Peace River South, Prince George–Mackenzie, Prince George–Valemount and Nechako Lakes.

It red-circles these 17 constituencies. What it says is you can shift the boundaries around but you can't change the number of constituencies. Those 17 will in essence be protected. That's what the legislation will tell the commission it has to do.

In doing that, of course, it limits and fundamentally changes the role of the commission. To understand that when it says that to the commission and then says for the other seats that are in the province, the other 68 seats that are here, in fact looking at boundaries and that is important. It will shift the representation among those other 68 seats. It may mean….

We know we have areas that are fast-growing, whether it be in the suburbs, in the Lower Mainland, in the Surreys and the Abbotsfords and those areas, possibly in the Okanagan. Those areas are growing. They may, in fact, warrant another seat here or there when you look at those 68 seats. If that happens, then those seats will come from elsewhere in the province. So that's the position.

Why is it that this side of the House is saying that this is a mistake? Why is it that we're saying this is a mistake? Well, there are a number of reasons. The first one is: you put the commission in place to do its work, and that's what we should be doing. By putting the commission in place, you take away any of the politics around it and the politics around how you make these decisions.

I heard the Minister of Jobs get up and make an impassioned representation around her constituency, Prince George–Valemount, and talking about the challenges of representation. I absolutely accept all of the things that the minister said about the complexity and the commitment around effectiveness and access and accessibility to your representative. That holds true in a lot of constituencies in the province.

The decision, though, to arbitrarily take 17 of those constituencies and say those are the ones — it raises questions. There are other members….

In the same way that the minister would say that, I might make the argument to say that absolutely, Prince George–Valemount is a challenging constituency to represent, or Prince George–Mackenzie is challenging, or the two Kamloops constituencies are challenging constituencies to represent. But are they more challenging than North Island, with the complexities there? Are they more challenging than Powell River–Sunshine Coast or Alberni–Pacific Rim?

I think in terms of the ability to access your MLA, your elected representative, the ability of the MLA to get around the constituency in an efficient way, there's an argument to be made. But the reality is that it shouldn't be us in this place who are saying we choose these ones over those ones. That's the problem here: the arbitrariness of one side of this Legislature, the government side, deciding to red-circle 17 seats.

That's why when the word "gerrymander" comes out, it resonates. It resonates because we are talking about one side, the government side, making arbitrary decisions about protecting constituencies.

It's absolutely appropriate for this Legislature to make the case to the commission and for every member in this Legislature to go in front of that commission when it comes to your community and make the case about the need for effective representation and the need about access and make the case for your constituents to have the representation you believe they should have. It does not make sense to make that decision in an arbitrary way in this place. I expect every member of the Legislature will go and have some conversation or some correspondence with that commission.

When you look at what the rules are today, there are constituencies over and above the 25 percent. As you'll know, the rule generally is that no constituency should go more than 25 percent over or 25 percent under the average across the province, but there's no doubt there are exceptions. The courts have acknowledged the exceptions. They have made the case that, yes, there are times when that makes sense.

I absolutely embrace that, but that's a decision for the commission to make. That's a decision for the commission to bring back here for us to consider. It's not something for us to decide here and direct them, if they truly are to be an independent commission. But that's not what's happening here, so we have this challenge related to that.

Now, the case has also been made, of course, about the legality of doing this. I don't know that — I'm no lawyer — but I know that there are constitutional issues here. We know that there have been decisions in the court before around these things. We know among other things that there are a couple of decisions. There certainly was Dixon v. British Columbia in 1989, which set much of the standard. Then, of course, there was the Saskatchewan reference in '91. Interestingly, when the court spoke about that, in the Saskatchewan situation, the Supreme Court of Canada talked about effective representation and the obligation to have effective representation.

That is about access, and it is about what that looks like. That should be the discussion that we're having in front of the Electoral Boundaries Commission, and we should be re-emphasizing to the Boundaries Commission that that's the obligation. It's not to red-circle 17 constituencies broadly across three regions of the province and say, "They are all protected," without much sense of what the thought is that went into this. But that's not what we're doing here.

The other thing that it said. When it talked about this in the Saskatchewan reference, it said that voter parity may be justified if they were based on factors such as "geography, community history, community interests and minority representation." It affirmed Dixon when stating that deviations should only be admitted if they could be justified.

That's a good practice. But what that means isn't to take a broad brush and stroke it across three regions and 17 constituencies. It's to look constituency by constituency. It's to look at the unique nature of every constituency, to allow the people in those constituencies to have a discussion with the commission and to look to see if there is a clear rationale for why those constituencies need to be protected, need to be adjusted, need to be changed.

There are places where we know that that argument will hold up and it'll hold up strongly. For other places, maybe it doesn't. The reality, though, I think is that…. I believe every member in this House, regardless of side, would like to have effective representation for all British Columbians.

I believe every member in this House believes that we all know the challenges of representation. They are different. Whether it's urban or rural or northern, we all have our own challenges, and they're different challenges. They challenge our ability to be effective. They challenge our constituents' ability to access us. We all are aware, I believe, pretty keenly of what that looks like.

We also sit in caucuses which are diverse, and both caucuses have representatives from across the province. We have these discussions, and we all begin to understand, over time and over the years here, the challenges and complexities of different regions.

It is that dialogue within our caucuses and that dialogue in this place that helps us understand that we need to have a global perspective on the province when we make these decisions.

Because of that, I am convinced that every member in this House is pretty keenly aware of the challenges that our rural and northern representatives have, the complexity they face in doing the job that they do to serve their constituents, the challenges that their constituents have to access them. We need to resolve those questions or improve those questions. But we don't do that in this way; we do that with a much more thoughtful discussion.

The Minister of Jobs talked about the Cohen commission and what the Cohen commission recommended. Well, there was lots of opportunity since the time the Cohen commission reported for the government of the day, the B.C. Liberals, to have said: "We're going to get our head around this issue before we get to appointing another commission."

They certainly could have engaged thoughtful and intelligent people and said: "We want you to go and take this issue on. Come back to the Legislature and tell us how we meet this challenge that faces British Columbia and faces every jurisdiction in this country."

People are flocking to the more urban areas. You are seeing a greater disparity in terms of population numbers. If you go strictly rep by pop, that creates real challenges, no doubt, and you have to address those challenges — but at the same time, some recognition of the need of fairness in the solution that we find.

We have this situation, though, where instead of doing that — instead of the government in fact appointing some intelligent, smart, thoughtful people to do that work and come back with some advice — we have what we saw with Bill 2.

As we know, of course, we have what happened with Bill 2. We know that most of the people who spoke to this bill didn't believe that it met the needs of the province of British Columbia, didn't believe that it achieved the objectives that we would all want around effective and accessible representation for all British Columbians. We have this situation instead where we have this bill that presumably will pass.

Now, there are questions again. We talked about what the courts said a little bit — about the Dixon decision and about the Saskatchewan reference. There's a case to be made.

Our critic, the member for Nanaimo, spoke about this a little bit — that this decision, this legislation, should it pass, is as likely as not to end up in a court challenge. It may or it may not, but we could see that. Then it will be the responsibility to see whether, in fact, the issue of clear rationale makes sense, whether this bill meets the objective around what is accessible and effective representation.

Now, we're going to get to the committee stage on this, because I'm sure this is going to pass — Bill 2. I suspect — and I guess I would reference this for the Justice Minister — and fully expect that at some point somebody in committee stage is going to ask the Justice Minister whether she has a legal opinion on whether this will stand up and on what basis this will stand up.

It would be good of the Justice Minister to pre-empt that question maybe and just table that legal opinion, should she have one — or tell us if she doesn't have one; that would be fine, too — and let us know on what basis the decision was made that you could take 20 percent of the constituencies and red-circle them in the way that's been done with this Bill 2.

We need to be clear. There will be exceptions. In every jurisdiction there are exceptions, and that makes absolute and appropriate sense, but those exceptions need to be decided by some clear rationale. They need to be decided by some criteria that the Boundaries Commission embraces and takes on. They need to be able to be justified in that way. This bill doesn't achieve any of those things.

We all want a Legislature where members have the opportunity to effectively represent their constituencies. We all want a Legislature where constituents have the ability to access their elected representatives.

We all want a Legislature where every region of the province has strong voices that will contribute to the makeup of public policy in this province. We all want a Legislature that moves forward with a coherent view of how British Columbia works and ensures that the voices from all areas of the province contribute to that coherent view.

That's important, and it's hard to do. It is complex, and it is challenging. The challenge gets greater every year as we see the growing discrepancies in population. This is not an easy thing to deal with. This is not an easy issue to address.

The problem with Bill 2 is it simply isn't a good way to do this. It simply isn't a way to do this that is particularly thoughtful. It isn't a way to do this that looks at having to have some in-depth analysis of each constituency and how it meets the needs of the people who live there, in political terms. It isn't fair in terms of looking across the province at the whole 85 seats and what the dynamic of that makeup is. None of that is achieved with this legislation.

What we have is that it may have been a good effort on the government's part, and they may believe it is a good effort, but it looks a lot like a government that was taking an easy way out to get where they wanted to go.

It looks a lot like a government that didn't want to deal with the tough questions, that has left this very late in terms of from the last time we had a commission, the Cohen commission. This has been left very late to deal with and address, rather than dealing with it a couple of years ago when there could have been a much more thoughtful discussion about this. So we have this situation.

The best thing that we could do with this legislation, presumably, would be to say: freeze it at 85 seats. Let the commission do their work, be very clear with the commission that we put a priority on rural and northern representation and be prepared to move forward and allow that to happen in a process that is open and engaging to all people in the province. If we do that, we will get a better result.

At the end of the day, as we all know, whatever that result is, we'll come back to this place. As we know from past practice, we are not above making amendments to what comes back to this place, and we can deal with the report of the commission at the time it comes.

But if you want somebody to do the hard work, the thoughtful work, with some guidance, give them the ability and the free hand to do their job, to make their report and to bring that report back here. And then the 85 people in this chamber can decide whether that report meets our objectives, can decide whether that report satisfies that need for accessible and effective representation, can make the decision about whether it is fair and balanced and can do that with the confidence that it was done by an independent electoral commission, a commission that was not fettered by legislative decisions that many of us believe are suspect and was able to do the work that it was charged to do.

If we do that, we will have a better result here, and we'll in fact have the opportunity then to talk about the report of the commission instead of talking about flawed legislation of the B.C. Liberals.

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