Fédération Acadienne de la Nouvelle-Écosse et al. v. Nova Scotia (Attorney General)

Fédération Acadienne de la Nouvelle-Écosse et al. v. Nova Scotia (Attorney General) Court Supreme Court Date 2024-11-12 Citation 2024 NSSC 339 Docket No. 506395, No. 506395 Judge/Registrar/Adjudicator Muise, Pierre, L. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Fédération Acadienne de la Nouvelle-Écosse et al. v. Nova Scotia (Attorney General), 2024 NSSC 339 Date: 20241112 Docket: No. 506395 Registry: Port Hawkesbury Between: Fédération Acadienne de la Nouvelle-Écosse, Natalie Claire Aucoin, Marcel Bourgeois, Danielle Jeannine Chiasson-Haché, Darlene Anne Doucet and Maurice Lelièvre Applicants v. The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Respondents Judge: The Honourable Justice Muise Heard: October 23, 2023, in Port Hawkesbury, Nova Scotia Final Written: November 12, 2024 Counsel: Réal Boudreau, Réjean Aucoin and Noella Martin, KC, for the Applicants Edward Gores, KC and Daniel Boyle, for the Respondents By the Court: INTRODUCTION [1] Section 5 of the House of Assembly Act, R.S.N.S. 1989 (1992 Supp), c. 1 (also referred to herein as the “Act”), requires that an independent electoral boundaries commission be appointed at least once every 10 years. That commission must prepare “a report recommending the boundaries and names for the electoral districts comprising” the Nova Scotia House of Assembly (“House”). The House must then “introduce legislation to implement the recommendations contained in the final report of the commission”. However, modifications may be made to that legislation before it is passed and comes into force. [2] The 2019 Electoral Boundaries Commission (“Commission”), chaired by Dr. Colin Dodds, released its final report, entitled Balancing Effective Representation with Voter Parity, in April 2019 (“Dodds Report” or “Final Report”). The House introduced the requisite legislation, and it was passed without any modification. [3] The Dodds Report recommended establishing seven “exceptional electoral districts”, which, in accordance with paragraph 5 (5B) (e) of the Act, have an estimated number of electors that “is more than 25% above or below the estimated average number of electors per electoral district”. Three of those, Argyle, Clare and Richmond, are known as Acadian ridings. The other four are Preston, Guysborough-Tracadie, Queens and Digby-Annapolis. [4] Four of the nine members of the Commission wrote a letter of dissent opposing the majority decision to not include Chéticamp as an exceptional electoral district and to not include a seat in the House for the people of Chéticamp and environs. The Letter of Dissent is included in the Dodds Report and provides a comprehensive explanation of why they would have recommended establishing Chéticamp as another exceptional electoral district and Acadian riding. [5] The Applicants bring the within Application in Court seeking declarations that, by failing to declare the Acadian Region of Chéticamp as an exceptional electoral district, under paragraph 5 (5B) (e) of the Act, the Respondent violated section 3 and subsection 16(3) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, Part I (“Charter”), as well as section 2 of the French-language Services Act, S.N.S. 2004, c. 26 (“FLSA”), and “proceeded in a manner inconsistent with the normative unwritten principle regarding the respect of minorities defined in the Supreme Court of Canada’s opinion in Reference re Secession of Quebec, [1982] 2 S.C.R. 217”. [6] In this decision, when I refer to Chéticamp, the Chéticamp Region, or Chéticamp and environs, I am referring to the Village of Chéticamp and the larger surrounding region which comprises the villages of Petit-Étang, Belle-Marche, Plateau, Point Cross, Grand-Étang, Saint-Joseph-du-Moine, Terre-Noire, Cap-le-Moine, Belle-Côte and East Margaree. If my reference is limited to the Village of Chéticamp, I will more specifically refer to the Village of Chéticamp. ISSUES [7] The Applicants request the declarations I have noted. However, they focus their submissions on the alleged violation of s. 3 of the Charter. They refer to subs. 16(3) of the Charter, s. 2 of the French-language Services Act, and the principle regarding the respect of minorities defined in the Supreme Court of Canada’s opinion in Reference re Secession of Quebec, primarily as rights, purposes and principles that should have been considered by the Commission and are relevant in determining whether failing to declare Chéticamp as an exceptional electoral district violates s. 3. [8] The Respondent, Nova Scotia, submits the following: • Subs. 16(3) of the Charter uses permissive language expressing “that Parliament and legislatures may enact legislation or pursue policies for an ameliorative purpose”. It arguably may support justifying a greater deviation from voter parity to promote equality of language but does not confer any positive rights on the Applicants. • S. 2 of the French-language Services Act only sets out the purpose of that Act, which deals with development, by Government, Crown corporations and public institutions, of plans, programs, policies and services to assist in preserving and growing the Acadian and francophone community by addressing its needs and providing French-language services. It “does not confer any positive requirement for an exceptional electoral district to be created”. So, it has not been shown that the failure to do so would constitute a breach of s. 2. • The Supreme Court of Canada, in Reference re Secession of Quebec, at paragraph 49, in discussing unwritten constitutional principles, noted the following. Respect for minority rights is but one of the “four foundational constitutional principles” which “inform and sustain” the text of our Constitution. Another of these four principles is “democracy”. “No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other.” The Majority of the Supreme Court of Canada, in Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, confirmed, at paragraph 63, that “unwritten constitutional principles cannot serve as bases for invalidating legislation”. Rather, they are used to interpret the Constitution. I also note that, at paragraph 5, it stated that “there is no freestanding right to effective representation outside s. 3 of the Charter”. Therefore, the unwritten principle of respect for minorities, though a factor to consider in determining whether there has been a violation of s. 3, is not properly the subject of a separate declaration of inconsistency. [9] I agree with Nova Scotia on these points. [10] I also note that the FLSA does not contain a provision like s. 41 of the Official Languages Act, R.S.C. 1985, c. 31, which implores every federal institution to take positive measures to advance equality of status and use of both official languages, or at least mitigate any erosion of that equality, in all of its activities or roles. [11] During the hearing, Nova Scotia noted some preliminary points regarding the naming of the Respondent and the procedure chosen by the Applicants. I make the comments which follow in relation to those points. [12] The Respondent was named properly and in a manner that is consistent with s. 12 of the Proceedings against the Crown Act. R.S.N.S. 1989, c. 360. [13] There was no basis for bringing a judicial review of the Dodds Report as it only made recommendations. Though subs. 5(8) of the House of Assembly Act required the Government to introduce legislation to implement those recommendations, the House of Assembly could have amended the legislation before it was passed. It legislated the electoral boundaries as recommended. Therefore, it is proper to bring the within challenge to the constitutionality of those electoral boundaries via an application in court naming Nova Scotia as the Respondent. [14] Therefore, the real issues in this proceeding are: 1. Does the House of Assembly’s acceptance of the Commission’s recommendation not to declare Chéticamp an exceptional electoral district under paragraph 5 (5B) (e) of the House of Assembly Act infringe s. 3 of the Charter? 2. If so, is the infringement justified under s. 1? 3. If the infringement is not justified under s. 1, what is the appropriate remedy? LAW AND ANALYSIS ISSUE 1: DOES THE HOUSE OF ASSEMBLY’S ACCEPTANCE OF THE COMMISSION’S RECOMMENDATION NOT TO DECLARE CHÉTICAMP AN EXCEPTIONAL ELECTORAL DISTRICT UNDER PARAGRAPH 5 (5B) (e) OF THE HOUSE OF ASSEMBLY ACT INFRINGE S. 3 OF THE CHARTER? Interpretation of Section 3 Charter Rights [15] S. 3 of the Charter states: Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. [16] As all parties agree, the leading case in Canada on s. 3 Charter rights, in the context of establishing electoral boundaries, is Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158 (“Carter”). [17] Justice McLachlin (as she then was), writing for the majority, described the meaning of the right to vote under s. 3, starting at page 183, as follows. It is my conclusion that the purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but the right to "effective representation". Ours is a representative democracy. Each citizen is entitled to be represented in government. Representation comprehends the idea of having a voice in the deliberations of government as well as the idea of the right to bring one's grievances and concerns to the attention of one's government representative; as noted in Dixon v. B.C. (A.G.), [1989] 4 W.W.R. 393, at p. 413, elected representatives function in two roles -- legislative and what has been termed the "ombudsman role". What are the conditions of effective representation? The first is relative parity of voting power. 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. But parity of voting power, though of prime importance, is not the only factor to be taken into account in ensuring effective representation. … . Notwithstanding the fact that the value of a citizen's vote should not be unduly diluted, it is a practical fact that effective representation often cannot be achieved without taking into account countervailing factors. First, absolute parity is impossible. It is impossible to draw boundary lines which guarantee exactly the same number of voters in each district. Voters die, voters move. Even with the aid of frequent censuses, voter parity is impossible. Secondly, such relative parity as may be possible of achievement may prove undesirable because it has the effect of detracting from the primary goal of effective representation. Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic. These are but examples of considerations which may justify departure from absolute voter parity in the pursuit of more effective representation; the list is not closed. It emerges therefore that deviations from absolute voter parity may be justified on the grounds of practical impossibility or the provision of more effective representation. Beyond this, dilution of one citizen's vote as compared with another's should not be countenanced. I adhere to the proposition asserted in Dixon, supra, at p. 414, that "only those deviations should be admitted which can be justified on the ground that they contribute to better government of the populace as a whole, giving due weight to regional issues within the populace and geographic factors within the territory governed." …. I turn finally to the admonition that courts must be sensitive to practical considerations in interpreting Charter rights. The "practical living fact", to borrow Frankfurter J.'s phrase, is that effective representation and good government in this country compel those charged with setting electoral boundaries sometimes to take into account factors other than voter parity, such as geography and community interests. The problems of representing vast, sparsely populated territories, for example, may dictate somewhat lower voter populations in these districts; to insist on voter parity might deprive citizens with distinct interests of an effective voice in the legislative process as well as of effective assistance from their representatives in their "ombudsman" role. This is only one of a number of factors which may necessitate deviation from the "one person - one vote" rule in the interests of effective representation. In the final analysis, the values and principles animating a free and democratic society are arguably best served by a definition that places effective representation at the heart of the right to vote. The concerns which Dickson C.J. in Oakes associated with a free and democratic society -- respect for the inherent dignity of the human person, commitment to social justice and equality, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals in society -- are better met by an electoral system that focuses on effective representation than by one that focuses on mathematical parity. Respect for individual dignity and social equality mandate that citizen's votes not be unduly debased or diluted. But the need to recognize cultural and group identity and to enhance the participation of individuals in the electoral process and society requires that other concerns also be accommodated. Nova Scotia Responses to Carter [18] Following Carter, Nova Scotia established an independent electoral boundaries commission to review and redistribute electoral boundaries, with a view to creating fair constituencies that ensured effective representation. The first commission was the 1992 Commission. [19] The 1992 Commission, in its report entitled “Effective Political Representation in Nova Scotia: The 1992 Report of the Provincial Electoral Boundaries Commission”, recommended five constituencies having a population or seat entitlement below the provincial average size of constituencies. It referred to them as “protected constituencies”. It recommended that three of those, Clare, Richmond and Argyle, be maintained “to promote effective representation of the Acadian community”. It “encouraged representation of the Black community by [recommending] a new seat based in the Preston area”. It also recommended protecting Victoria County based on “geographical grounds”. [20] The second boundary review was conducted by the 2001 Commission. In its final report, it recommended keeping four of the five protected constituencies, proposing that only protection for the district of Victoria be removed. [21] The third boundary review was conducted by the 2012 Commission. Its Terms of Reference included a direction that “no constituency may deviate by a variance of greater or less than 25 percent from the average number of electors per constituency”. Its interim report recommended keeping the four protected ridings of Argyle, Clare, Preston and Richmond, even though it resulted in deviations exceeding 25 percent. The Attorney General rejected that interim report and directed the 2012 Commission to provide another interim report complying with its Terms of Reference. [22] It complied and provided a revised interim report to the Attorney General, then its final report to the House. Those reports recommended abolishing the four remaining protected constituencies. However, the 2012 Commission, in its final report, highlighted that it found itself “without any discretionary authority” to maintain the four protected constituencies, and it did not state that its recommendations provided effective representation to voters in the formerly protected ridings that would be abolished. Its recommendations were nevertheless accepted by the House and the Act was amended to implement them. [23] The question of whether the abolition of the former protected ridings of Clare, Argyle and Richmond infringed s. 3 of the Charter, and, if so, whether it could be justified under s. 1, was referred to the Nova Scotia Court of Appeal. Its decision on the reference is reported as Reference re the Final Report of the Electoral Boundaries Commission, 2017 NSCA 10 (the “Reference Opinion”). [24] It applied Carter and concluded that the abolition of those electoral districts violated s. 3 of the Charter because the “Attorney General’s intervention … prevented the Commission from performing the balance [of voter parity against countervailing criteria], and from expressing its authentic view of effective representation for electors in Clare, Argyle and Richmond”. It also concluded that the violation was not justified under s. 1 because the Attorney General’s interference was not rationally connected to the legislative objective of implementing Carter’s constitutional principles of effective representation and did not minimally impair the infringed right. [25] Nova Scotia then, in 2017, established an independent commission “to recommend ways to best achieve effective representation for Acadian and African Nova Scotians”, not to review and recommend electoral boundaries. It was called The Commission on Effective Electoral Representation of Acadian and African Nova Scotians (the “2017 Commission”). It released its report and recommendations entitled “Representation: Toward More Effective Representation for Acadian and African Nova Scotians”. [26] The 2017 Commission’s recommendations included that the Act should be amended to allow “the boundaries commission to exceed the standard deviation [of plus or minus 25 percent] in exceptional circumstances” without specifying or restricting those circumstances or the deviation tolerance. [27] A 2018 amendment to the Act incorporated the 2017 Commission’s recommendations that pertained to electoral boundaries. [28] S. 5 of the Act, which provides for the establishment and work of independent electoral boundaries commissions, was amended to read, and currently reads, as follows: 5(1) In this Section, “commission” means the independent electoral boundaries commission appointed pursuant to this Section. (2) The electoral districts described in Section 4 have effect until new electoral districts are approved pursuant to this Section. (3) No later than the thirty-first day of December, 2012, and, thereafter, within ten years after the last change in electoral districts made pursuant to this Section, and at least once in every ten years from the thirty-first day of December, 2012, an independent electoral boundaries commission shall be appointed and issued terms of reference by a select committee of the House constituted to appoint the members of the commission. (4) The commission shall prepare, for approval by the House, a report recommending the boundaries and names for the electoral districts comprising the House. (5) The commission must be broadly representative of the population of the Province, including at least one person representing the Acadian community of the Province and at least one person representing the African Nova Scotian community. (5A) The commission may not include a present or former (a) member of the House; (b) member of the House of Commons; (c) member of the Senate; or (d) Chief Electoral Officer. (5B) The terms of reference of the commission include the following: (a) there is a right to effective representation and elector parity is the prime factor in determining the electoral boundaries; (b) deviation from elector parity is justified because of geography; (c) deviation from elector parity may be justified because of historical, cultural or linguistic settlement patterns and because of political boundaries; (d) subject to clause (e), the estimated number of electors in each electoral district may vary by no more than 25% above or below the estimated average number of electors per electoral district; (e) subject to subsection (5C), there may be one or more exceptional electoral districts where, in exceptional circumstances, the estimated number of electors in the electoral district is more than 25% above or below the estimated average number of electors per electoral district; (f) electoral districts may be non-contiguous; (g) subject to subsection (5C), the preliminary report must include electoral boundaries for the existing number of electoral districts and for at least one different total number of electoral districts; and (h) for greater certainty, the final report must include only one recommendation of electoral boundaries. (5C) In determining the terms of reference of the commission in addition to those in subsection (5B), the select committee may (a) define terms in subsection (5B) and this subsection; (b) define the parameters for deviation more than 25% above or below the estimated average number of electors per electoral district in exceptional electoral districts, including the scope for deviation, and determining the circumstances, such as communities and community interests, justifying the exceptional electoral districts; (c) determine the minimum and maximum number of electoral districts that the commission may consider; (d) direct or authorize the commission to recommend the number of electoral districts; (e) determine the number of different total numbers of electoral districts to be included in the preliminary report; and (f) determine such other matters as the select committee considers necessary or advisable. 5(D) The terms of reference are binding on the commission. (5E) The commission shall (a) prepare a draft of proposed boundary changes prior to its first public hearings; (b) prepare a preliminary report and hold public hearings prior to preparing the preliminary report; and (c) following the preparation of the preliminary report, hold further public hearings prior to preparing its final report. (6) The final report of the commission shall be laid before the House, if the House is then sitting, and the Premier, or the Premier’s designate, shall table the report in the House on the next sitting day. (7) If the House is not sitting when the final report of the commission is completed, the final report of the commission shall be filed with the Clerk of the House and the Premier, or the Premier’s designate, shall table the final report in the House within ten days after the House next sits. (8) Within ten sitting days after the final report of the commission is tabled in the House pursuant to subsection (6) or (7), the Government shall introduce legislation to implement the recommendations contained in the final report of the commission. [29] The 2019 Commission was subsequently appointed and given the Terms of Reference set out in subsection 5B, without being subject to the points in subsection 5C, but with the addition of deadlines for submission of the interim and final reports, with the possibility of extending the deadline for the final report. [30] As noted in the Introduction to this decision, the Majority Members of the Commission decided against recommending an exceptional electoral district for Chéticamp. The House accepted the electoral boundaries recommended and passed them into legislation. [31] The Applicants seeks a declaration that the failure to include Chéticamp as an exceptional electoral district infringes s. 3 of the Charter. Whether Process and Outcome May Be Reviewed [32] The Applicants have, throughout, advanced the position that: the Commission did not consider all of the evidence and factors relevant to determining whether the Chéticamp area community of interest would have effective representation, as envisaged by the interpretation of s. 3 of the Charter, within the district of Inverness; and did not justify its decision to refuse to designate an exceptional electoral district for Chéticamp. [33] Nova Scotia notes that that is a challenge to the process leading to the recommendation. Carter and the Reference Opinion confirm that is the case. [34] In Carter, it was the outcome, i.e. the boundaries themselves, that were subject to constitutional challenge. Therefore, the Majority did not discuss challenges to process in detail. However, at page 194, it stated: “The Commission adhered to these criteria [i.e. the legislative criteria governing the electoral map] in setting the boundaries, applying a test consistent with s. 3 of the Charter as I have interpreted it … .” [35] The Reference Opinion case, at paragraph 75, extracted the following from the comments in Carter regarding process: • The Commission had a dual mandate: statutory and constitutional. It implemented the legislated rural/urban criteria while also “applying a test consistent with s. 3 of the Charter as I have interpreted it” – i.e. by implementing principles of effective representation. • Those constitutional principles of effective representation involved the balancing, by Saskatchewan’s Commission, of voter parity and the countervailing criteria that derived from s. 3. [36] So, whether the Commission balanced voter parity and the countervailing criteria as required by s. 3 of the Charter does involve a review of the Commission’s process. [37] Nova Scotia submits that, since the Applicants named the Province of Nova Scotia as the Respondent, this case can only properly be framed as a challenge to the constitutionality of the legislation implementing the Commission’s recommendations and I am limited to considering whether it has been established that the outcome violates s. 3 of the Charter. Its position is that the outcome is one that reasonable persons, applying the appropriate principles, could have reached; and, therefore, it does not violate s. 3 of the Charter. [38] However, in the Reference Opinion case, the Court was tasked with determining whether the abolition of the formerly protected ridings of Clare, Argyle and Richmond infringed s. 3 of the Charter. That is essentially the same type of question as I must answer in the case at hand, i.e. whether failing to include an exceptional electoral district for Chéticamp infringes s. 3. At paragraph 86, the Court stated: “The Legislature just adopted the Commission’s Final Report … [s]o we turn to the Commission.” The Court, at paragraph 99, also highlighted that “[i]f the Government, or Attorney General, disagrees with the Commission’s balancing of Carter’s criteria for effective representation, then after the Bill’s introduction, the Government may move an amendment”. [39] In the case at hand, the Legislature also just adopted the final recommendations of the Commission. Nova Scotia could have moved to amend the Bill if it was of the view that the Commission had not properly balanced the Carter criteria. There is no dispute that the Commission fulfilled its statutory mandate. Therefore, I must turn to the Commission to see whether it fulfilled its constitutional mandate to balance the Carter criteria for effective representation. [40] In the Reference Opinion case, the Court concluded that the Terms of Reference, combined with the directive of the Attorney General that they were legally binding and not to be treated as guides, fettered the Commission’s discretion to balance the criteria for effective representation. However, if a commission fails to properly balance the relevant criteria, it has fallen short of its constitutional mandate, irrespective of whether it is prevented from doing so or it simply fails to do so. Did the Commission Consider and Balance All Factors Relevant to Determining Whether Chéticamp Would Have Effective Representation in a Manner Consistent With S. 3 of the Charter? Factors Considered [41] The Majority of the Commission provided little in the way of reasons for why it did not recommend an exceptional electoral district for Chéticamp. Nova Scotia submits that, since it did not recommend the addition of a new exceptional electoral district, it did not need to justify its recommendation. The following statement from the Majority in Carter, at page 187, informs the assessment of this submission: To return to the metaphor of the living tree, our system is rooted in the tradition of effective representation and not in the tradition of absolute or near absolute voter parity. It is this tradition that defines the general ambit of the right to vote. This is not to suggest, however, that inequities in our voting system are to be accepted merely because they have historical precedent. History is important in so far as it suggests that the philosophy underlying the development of the right to vote in this country is the broad goal of effective representation. It has nothing to do with the specious argument that historical anomalies and abuses can be used to justify continued anomalies and abuses, or to suggest that the right to vote should not be interpreted broadly and remedially as befits Charter rights. Departures from the Canadian ideal of effective representation may exist. Where they do, they will be found to violate s. 3 of the Charter. [42] This passage makes it clear that electoral boundaries can be challenged for pre-existing infringements of s. 3. The infringement need not be a new one created by the acceptance of a Commission’s recommendations. [43] In addition, in the case at hand, four of the nine members of the Commission wrote a letter of dissent providing extensive reasons why an exceptional electoral district for Chéticamp was required to provide it with effective representation. That increased the onus on the Majority Members to express why and how they balanced the relevant factors differently. [44] There is a marked paucity of expressed reasons, which I will outline further later. Despite that, I will explore the Commission’s interim and final reports for indications of what factors or criteria the Majority Members considered and how they balanced them. [45] The Letter of Dissent submitted by the four Dissenting Members of the Commission, which is incorporated in the Final Report, provides extensive reasons for their opinion that the electoral map recommended by the majority makes it such “that the Acadians of Chéticamp and environs are yet again left with the status quo of insufficient representation”. The Final Report, at page 2 states: “In this final report, we debated the option of including Chéticamp as an exceptional electoral district. It was the will of the majority of commission members to recommend 55 electoral districts. Those commissioners who disagree with this position have written a Letter of dissent that is included in this report on pages 46–53. This fulfills our requirement to present ‘only one recommendation of electoral boundaries’ (Terms of reference #8).” [46] Therefore, more likely than not, the Commission considered the factors raised by the Dissenting Members. [47] The Applicants herein advance the same reasons as the Dissenting Members, amongst others, in support if their submission that the electoral boundaries of the constituency comprising Chéticamp and environs violate s. 3 of the Charter. [48] Consequently, it is useful to reproduce a large part of the Letter of Dissent, which states, among other things, the following: “[W]e have dissenting opinions regarding the majority of the commission’s rejection of the third and fourth elector distribution options proposed in our interim report (Dodds 2018, 30). The third option proposed creating a dual-member electoral district for Inverness—55 electoral districts with 56 MLAs. The fourth option proposed creating an exceptional electoral district in the northern Inverness area in addition to reinstating versions of the four formerly protected constituencies for a total of 56 electoral districts. … Despite the high quality of representation generally provided by current and past Inverness MLAs, insights from commission members and presenters at the well attended public consultations in Chéticamp highlighted that Acadians from that area had not enjoyed effective representation on par with other Nova Scotians. This has been the case both in the longue durée and since “protected constituencies” were established in 1992. Reasons were clearly outlined in consultations, as well as in the commission’s interim report: Only two Acadians have been elected in iterations of the Inverness electoral district since Confederation. • French-speaking Acadians have not been able to speak with their elected representatives in French. • Geographically, Inverness is an unwieldy constituency that stretches more than 200 kilometres from its northernmost to its southernmost points making it comparatively more difficult for residents to meet with their MLA. • Chéticamp Acadians were excluded in the creation of exceptional electoral districts, which for 20 years provided descriptive representation and symbolic recognition for Acadians of the other protected constituencies. • Chéticamp Acadians experienced marginalization through deportation and, in the last century, land expropriation at the hands of the federal government to create Cape Breton Highlands National Park. • In an increasingly globalized world, the Chéticamp area is facing assimilative pressures (Dodds 2018, 24–26). …. Since the Carter decision, Nova Scotia has been a model for how boundaries commissions can incorporate substantive and descriptive representation (pages 87) while balancing effective representation against voter parity, particularly in cases involving ethno-cultural and racial minorities. This is, of course, setting aside the 2012 controversy that yielded the current 51-seat House of Assembly, as well as the current commission’s ultimate rejection of the Chéticamp and environs options. Some Nova Scotians may challenge our position. It has been argued that the commission’s proposals to address effective representation in Chéticamp and environs yielded an unacceptable deviation from voter parity. We respectfully disagree. Chéticamp and its surrounding communities present an extraordinary case—a linguistic, cultural, historical, and geographical community of interest needing more effective representation at a crucial time. We refer to Justice McLachlin’s statements about voter parity and effective representation in the Carter decision: 49 It is my conclusion that the purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but the right to “effective representation” ... 51 But parity of voting power, though of prime importance, is not the only factor to be taken into account in ensuring effective representation ... 52 Notwithstanding the fact that the value of a citizen’s vote should not be unduly diluted, it is a practical fact that effective representation cannot be achieved without taking into account countervailing factors (NSCA 2017, 36 citing Saskatchewan v Carter, 1991 SCC). In our mandatory Terms of reference, #1 states: “There is a right to effective representation, and elector parity is the prime factor in determining the electoral boundaries” (page 5). Yet, the Carter 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. The Nova Scotia Court of Appeal judgment refers to Justice McLachlin’s interpretation in the Carter decision: 61 ... The “practical living fact”, to borrow Frankfurter J.’s phrase, is that effective representation and good government in this country compel those charged with setting electoral boundaries sometimes to take into account factors other than voter parity, such as geography and community interests. ... ; to insist on voter parity might deprive citizens with distinct interests of an effective voice in the legislative process as well as of effective assistance from their representatives in their “ombudsman” role. This is only one of a number of factors which may necessitate deviation from the “one person – one vote” rule in the interests of effective representation. (NSCA 2017, 37–38 NSCA 2017, 36 citing Saskatchewan v Carter, 1991 SCC) In the Carter ruling, Justice McLachlin’s insights underline the delicate balancing act that boundaries commissions must undertake: 55 … I adhere to the proposition asserted in Dixon, supra, at p. 414, that “only those deviations should be admitted which can be justified on the ground that they contribute to better government of the populace as a whole, giving due weight to regional issues within the populace and geographic factors within the territory governed.” (Saskatchewan v Carter, 1991 SCC 158) We feel that the parity deviation for Chéticamp and environs contributes to better government for the populace as a whole. It provides Acadians—in a nested area of a wider economically challenged region of the province—who have largely felt left out of the political process, with an opportunity to experience more effective representation, representation that could be considered comparable to that of the rest of the governed populace. From a geographical perspective, an exceptional electoral district would have provided voters with fairer comparative access to their MLA. The electoral district of Inverness spans approximately 240 kilometres from its southernmost to its northernmost points. This electoral district easily compares to that of the Eastern Shore-Guysborough-Tracadie electoral district, which the current commission deemed worthy of adjusting because of its geographical expanse even though this increased its deviation from voter parity. According to Terms of reference #2 (page 5), geography alone would seem to make Inverness a reasonable candidate for boundary adjustment. In addition, we question any notion that urban and other Nova Scotian voters may experience ill effects regarding their political representation because of Chéticamp’s significant parity deviation. The answer is up for debate. For instance, political scientists Paul Thomas, Peter Loewen, and Michael MacKenzie have observed in their study, Fair Isn’t Always Equal: Constituency Population and the Quality of Representation in Canada, that “remarkably there has been no study of whether population inequalities actually affect Canadian citizens’ representational experiences.” (Thomas, Loewen, and MacKenzie 2013, 273). However, the authors do note that “taken together, our findings help us understand whether breaches of rep-by-pop affects the quality of individual representational experiences. Ultimately, our results suggest that voters may not need to be equally represented in order to be—or to feel—effectively represented” (Thomas, Loewen, and MacKenzie 2013, 274). They reiterate in their concluding remarks the following: The principal implication of this analysis is that reducing inequalities in constituency population may be a worthy objective in itself, but radical changes to electoral district boundaries should not be made at the expense of other principled considerations, such as the representation of communities of interest. Nor can changes made to improve equality be justified solely on the assumption that voters in constituencies with larger populations are not well represented. There is little evidence to suggest that the representational experiences of individuals can be improved by moving closer to the principle of rep-by-pop. (Thomas, Loewen, and MacKenzie 2013, 290) Additionally, from a constitutional standpoint, it has been argued that exceptional treatment of Acadians is justified because they are an official language community recognized under sections 16–23 of the Charter of Rights and Freedoms (Keefe 2018, 105). We also view the options presented for Chéticamp and environs as beneficial measures that could be initiated by the province to support a disadvantaged group as they are for the previously instituted exceptional electoral districts. In light of the unique historical circumstances, linguistic pressures, and marginalization experienced by Acadians as an official language community, we believe such remedial initiatives would negate any charges of reverse discrimination that could arise. Indeed, the proposals for Chéticamp and environs, as well as the other exceptional electoral districts, could be situated within the purview of section 15(2) of the Canadian Charter of Rights and Freedoms (Butler 2013; Butler, 2013 7–8 citing Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011). During some public consultations, we heard arguments for and against increasing the number of electoral districts. We encountered the usual narrative that often falsely conflates the number of MLAs with government as a whole. The proponents of this narrative believe we can achieve smaller and more efficient government by reducing the number of MLAs. We disagree and instead follow the more nuanced rationale provided in Dr. Bickerton’s report, some of which was outlined in our interim report: While for various reasons smaller municipal councils might be consistent with the goal of good governance, these considerations are very different for the provincial legislature. Since the province is the level of government primarily responsible for providing most public and social services, it is crucial that Nova Scotian electors have representation in the legislature that is adequate to the needs of the parliamentary form of democracy. In particular, voters must have the capacity to hold their government accountable for its policies, programs, and governance practices, the essence of “effective representation” that the Supreme Court identifies as the right of all Canadian citizens. (Bickerton 2018, 16) Additionally, increasing the number of electoral districts, and thus MLAs, by only one from the majority of the commission’s proposal of 55 electoral districts (page 22), we want to emphasize the expert position that “relative to the overall cost of government, the financial burden of maintaining a legislator is very small” (Bickerton 2018, 16). In fact, we feel that most Nova Scotians would be surprised at how little it costs to cover the salary and expenses of one additional MLA (along with the additional MLAs proposed by the commission) when seen in the context of the province’s overall budget. We are convinced that any suggested savings from not including Chéticamp and environs as an exceptional electoral district cannot be justified when compared to the opportunity for more effective representation in the House of Assembly that such a district would provide. It is undeniable that Nova Scotia is a province with regional and urban-rural divides (Carbert 2016, 42; Ivany 2014, 10). Some of these are, in part, exacerbated by politics and political institutions. For instance, our interim report states: “an indirect result of the way boundaries are redrawn actually contributes to further rural decline” (Dodds 2018, 14). In other words, institutional designs, such as representation-by population, have unintended effects. We accept that viewpoint, one that is rooted in new institutionalist analysis and used by many Canadian political scientists when explaining political phenomena. While we acknowledge that there are wider forces and multiple variables contributing to rural decline in Nova Scotia and beyond, we believe it is naive to think that a strict adherence to representation-by-population and voter parity is not one of them. Simply stated, as more MLAs become concentrated in a continuously growing number of urban electoral districts, rural districts grow geographically larger. This may disrupt communities of interest or cause them to disappear. As a result, political decisions regarding services and programs may become more urban-focused and geared toward continued centralization. This could lead to a snowball effect that pulls power away from important rural and cultural communities throughout the province (Savoie 2006, 18–49). We concede that demographic trends point to urbanization. But we also suggest that policies and distribution of resources and services are often filtered through an urban lens. Such an outlook presents rural areas as relics of the past with very little hope for the future. In contrast, we have seen small, rural Nova Scotian communities try to offset globalization and urbanization-related challenges by promoting culture, language, technology, and tourism in an effort to revitalize their communities and regenerate their economies. These communities have often been successful. We are not alone in recognizing this. It has been recognized by academics, business owners, community organizations, economic development officers, and rural MLAs. Rural Nova Scotia has not given up in the new economy. Communities are trying to readjust and some are resurfacing through innovation and entrepreneurship (Graham 2019, Johnson 2007). We feel that if substantive and descriptive representation is institutionalized in the form of an MLA, it can increase voters’ opportunities to affect economic and social policies and decision-making at the centre of government. We regret that Acadians in Chéticamp and its surrounding communities have again been denied the opportunity to be represented by an MLA who speaks their language, lives their culture, and shares a deep connection with their history and aspirations. As a final point on the Chéticamp and environs decision, we would like to highlight the composition of the 2018–19 Electoral Boundaries Commission. While five of nine of our commissioner colleagues live in Halifax and its surrounding urban areas, 59 per cent of Nova Scotia’s electors live outside HRM. It was an absolute pleasure to work with such a collegial and knowledgeable group of commissioners; however, we would be remiss if we did not suggest that the majority’s decision regarding Chéticamp and environs was, in part, a reflection of the aforementioned urban-rural divide and differing visions of what the future could hold for rural Nova Scotia. Indeed, the rejection of a more effective representation option for Acadians in the Chéticamp area highlights the urban-rural schism that continues to be evident in Nova Scotia and other provinces (Wesley 2016). We want to stress that an opportunity has been lost to provide an innovative, viable, and just solution for a marginalized, outlying, Acadian “anchor” community facing economic, social, cultural, and assimilative pressures.” [49] The Applicants also add specificity to some of those dissenting reasons, and advance additional factors, in support of their position that the electoral boundaries accepted and legislated fail to provide Chéticamp with effective representation, including the following: • It “did not give the Chéticamp area the same importance and consideration as it did” for other communities of interest. • The initial dispersal of the Acadians during the Deportation or Grand Dérangement, which destroyed the Acadian Heartland, and their continued dispersal upon return to Nova Scotia, so as to prevent them from forming a predominantly Acadian central region, has resulted in the Chéticamp region having a population well below the average voter population of constituencies in Nova Scotia, like other Acadian regions. It is the product of Nova Scotia’s historic policy of ethnic cleansing through assimilation and extinguishment of the Acadians “as an ethnic and political community”. Acadians were only permitted to return if “they took an unqualified oath of allegiance and lived in scattered, peripheral communities”. This resulted in four “Acadian homelands, in the Province. The only one that is not part of an exceptional electoral district is Chéticamp. • The Final Report, with the exception of the Letter of Dissent, in its discussion of “anchor” Acadian and African Nova Scotian Communities, does not mention the Chéticamp Region as one of the “distinctive homeland locales”. It only mentions Argyle, Clare and Richmond as Acadian homeland locales, and Preston as an African Nova Scotian homeland locale. This indicates the Majority Members of the Commission did not give Chéticamp the same consideration as the other homelands. • A member of the legislative assembly will often choose to defend the interests of the majority over those of the minority (as indicated in the affidavits of Dr. René Léger and Dr. Jonathan Fowler). • The Commission did not consider economic factors. • In addition to the Inverness electoral district spanning about 240 kilometres from North to South, there are other travel-related factors which complicate accessing effective representation. Chéticamp finds itself between the Gulf of St. Lawrence and the Cape Breton Highlands, often experiencing high winds («les Suêtes») which shut down schools when they reach 90 kilometres per hour (a frequent occurrence), and it is not uncommon for them to reach 150 to 200 kilometres per hour. The area has the highest annual snowfall of the Province. It is also not uncommon for the North Mountain to be closed for days, cutting Chéticamp off from the northern part of the riding. Chéticamp is 85 kilometres from a 100-series highway, the furthest of any comparably sized population centre in the province by far. This complicates in-person contact with the MLA. Cellular service often drops and Inverness has historically not had access to hi-speed internet, creating difficulties for virtual meetings. • The closest center for many necessary services is over 150 kilometres away in Port Hawkesbury. Other government services are only available 180 kilometres away in Sydney. • The Commission recommended a new exceptional riding for Guysborough-Tracadie, with a voter population of only 7,661 (and a seat entitlement of only 0.58), based on geography alone and Inverness is similar in length. • As noted in Mahé v. Alberta, [1990] 1 S.C.R. 342, at page 372, while dealing with minority language education rights under s. 23 of the Charter, “minority language groups cannot always rely upon the majority to take account of all their linguistic and cultural concerns”. • The Charter is to be “interpreted in a way that maintains its underlying values and its internal coherence”, with each part informing the interpretation of the whole, and vice versa: Health Services & Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, para 80. Therefore, the fact that the Acadians of Chéticamp have minority language rights recognized in the Charter, particularly s. 16, must be considered in interpreting and applying s. 3 of the Charter. • The principle of “substantive equality” underlies interpretation of Charter rights and may require differential treatment, including of official language minorities: Arsenault-Cameron v. Prince Edward Island, 2000 SCC1; DesRochers v. Canada (Industry), 2009 SCC 8; R. v. Kapp, 2008 SCC 41; and Withler v. Canada (Attorney General), 2011 SCC 12. This principle extends to interpretation of s. 3. Lack of effective representation “leads to a disempowerment of the community and a collective resignation, which promote acculturation and the linguistic assimilation of its members”. That is contrary to the objective of promoting “the substantive equality of official language minority communities”. • Our constitutional arrangement has been “characterized by adherence to”, among other things, accommodation of minorities, and protection of their rights underlies our constitutional order: Reference re Secession of Quebec, supra, paras 48, 63, 80 and 81. • The preamble to the French-language Services Act (“FLSA”) expresses Nova Scotia’s commitment to "promoting the development of its Acadian and francophone community and maintaining for future generations the French language” (which is also part of the purpose of the FLSA expressed in s. 2), and its recognition of this community’s valuable contribution to the Province. The failure to recommend an exceptional constituency for Chéticamp runs contrary to those statements, which were not considered by the Commission. • Chéticamp has not had an Acadian or French-speaking MLA elected since 1925. Some residents of the Chéticamp area can only communicate meaningfully in the French language. For most of them, French is their first language. French is one of the official languages of Canada. If citizens do not have an MLA who speak their language, they cannot effectively bring their “voice in the deliberations of government” or their “grievances and concerns to the attention of” their MLA, denying them effective representation. • Ontario and Labrador have electoral districts with a voter population that is more than 70% below the provincial average (thus a seat entitlement of less than 0.30). The Îles-de-la-Madeleine electoral district has a voter population 77.7% below the Quebec provincial average (thus a seat entitlement of only slightly over 0.22). The Commission did not consider such extra-provincial deviations from voter parity. [50] The points raised by the Dissenting Members and the Applicants regarding historical treatment, its effects and current challenges, are supported by materials that were before the Commission and the affidavit evidence and expert reports filed on behalf of the Applicants, including those of: Dr. Rémi Léger, Dr. Jonathan Fowler, Marie-Claude Rioux, Darlene Anne Doucet, Marcel Bourgeois, Danielle Jeannine Chiasson-Haché, Natalie Claire Aucoin, and Maurice Joseph LeLièvre. There is no dispute regarding the veracity or accuracy of this evidence. [51] Nova Scotia limits its challenge of the Applicants’ evidence to a submission that the evidence of its expert witness, Dr. Andrew Sancton, should carry more weight because of his knowledge and experience being more specifically and more directly related to electoral boundaries. Its remaining witness, Sara Halliday, as Acting Associate Deputy Minister of the Department of Education and Early Childhood Development for Nova Scotia, outlined how elected members of the Conseil scolaire acadien provincial (“CSAP”), including two from Inverness County, play a large role in planning to support delivery of public French-first language education, with the Legislature having only minimal involvement. [52] I will return to Nova Scotia’s evidence later. [53] For now, I note that the Applicants’ argument can be summarized as being that, considering all of the points and factors advanced, “Chéticamp has a linguistic, cultural, historical and geographic situation that fully justifies” being designated as an “exceptional constituency”, which would contribute to good government of the populace as a whole, and the failure to do so maintains and propagates the historic government policy of division and assimilation, and leaves Chéticamp without effective representation. [54] As I already noted, the Commission, more likely than not, considered the points and factors in the Letter of Dissent. [55] The additional points and factors, or additional specifications, advanced by the Applicants are almost all referenced, at least generally, in the Final Report, Interim Report, or materials presented to the Commission, or in multiple locations. The only exception is the extra-provincial examples of deviation from parity. [56] I will not reproduce all those references in detail. However, I point out the following: • The Applicants emphasize that the Commission did not consider the French-language Services Act. However, page 90 of the Final Report quotes a portion of the Bickerton Report dealing with considerations that apply to Acadian exceptional ridings. The considerations articulated include the French-language Services Act as well as the creation of the Acadian school board, ss. 16 to 23 of the Charter, and s. 15(2) of the Charter re affirmative action to promote substantive equality. This immediately preceded, and is thus linked, to a reference to the possibility of creating an exceptional electoral district for Chéticamp. In addition, the same quote is contained in the Interim Report, which does present an exceptional riding for Chéticamp as an option. • The references to the other Charter rights, signal an understanding that interpretation of the Charter strives to maintain and promote its underlying values and internal coherence. • A recognition that minority language groups could not always depend upon the majority to take into account their linguistic and cultural concerns could reasonably be expected to flow naturally from the references to minority language rights. • Similarly, the recognition that the Chéticamp Acadians are part of the linguistic and cultural minority within Inverness, should lead naturally to the concern that the MLA for the district would prioritize the interests of the majority over those of the Chéticamp Acadians. Although the Crown’s expert in Raîche c. Canada (Procureur general), 2004 FC 679, did not appear to appreciate that natural concern, there is no indication that the Commission would not have. Raîche, at paragraph 42, expressed it as “the reality in a democracy” and I agree with that characterization. • Similarly, Page 89 of the Final Report, and Page 19 of the Interim Report, refer to Acadian anchor communities and “distinctive homeland locales”. Though only Argyle, Clare and Richmond are noted as having been recommended as exceptional ridings in the Final Report, the reference is soon followed by the same comment related to the possibility of creating an exceptional electoral district for Chéticamp, and that was one of the options recommended in the Interim Report. Thus, it has not been shown that Chéticamp was not considered to be one of the four Acadian Homelands. • The Interim Report, at page 16, discusses the deportation of the Acadians and their dispersal across the province during resettlement. At page 26, it states: “Acadians, particularly those in and around Chéticamp, have experienced marginalization in the form of deportation, peripheral reality, and, in the last century, land expropriation at the hands of the federal government. The Chéticamp community faces threats to its survival through assimilation.” • The Interim Report, at pages 16 and 21, notes that the District of Inverness exceeds 200 km from its southern most point to its northernmost point. It even adds that an MLA could live almost 200 km from the Acadian core of the district. Thus, it considered the geography of the district and the difficulty of arranging in person meetings with the MLA for the district. The Interim Report, at page 14, also notes that the Guysborough-Eastern Shore-Tracadie district also exceeded 200 km from its southernmost point to its northernmost point. Thus, it had that comparison in mind. It also had the voter population data for both districts. The Letter of Dissent expands further on those points. In addition, the submissions of Réjean Aucoin to the Commission provide many examples of government offices and services being situated, or moved, away from Chéticamp. • The importance of constituents being able to speak to their MLA in their mother tongue is referenced at page 11 of the Final Report. That Acadians in Chéticamp “have, to a large extent, been unable to converse in French with their MLA’s” is referenced at page 16 of the Interim Report. Submissions to the Commission from the Fédération acadienne de la Nouvelle-Écosse (“FANE”) and Réjean Aucoin included that only two Acadians had ever been elected MLA’s for Inverness, one in 1897 and the, most recent, in 1925, who remained in office until 1927. • The question of economic factors was only argued in passing. It was similarly only mentioned in passing by the FANE in their submissions to the Commission. It is unclear whether it was considered by the Commission, but there is no indication it is a factor which could reasonably be expected to have meaningfully affected the balancing exercise or the result. [57] In addition, the Final Report states, at page 22, that the Commission gave “serious consideration” to the creation of an exceptional electoral district for Chéticamp. [58] Therefore, apart from the extra-provincial deviations from voter parity, and the possible exception of the economic factor, more likely than not, the Commission considered these additional or refined factors as well. [59] The extra-provincial deviations from voter parity were included and explained in the report of Dr. Sancton, the expert presented by Nova Scotia. There is no evidence that same information was before the Commission. [60] Whether the Commission gave sufficient weight to the linguistic and cultural dimensions relating to the French-language minority of Chéticamp and gave Chéticamp the same consideration as other communities of interest, goes to the Commission’s balancing of factors. [61] That is the question which remains, i.e. whether the Commission conducted the proper balancing exercise. Balancing of Factors [62] In Raîche, at paragraph 79, the Court stated: The evidence before the Commission showed that the Acadian minority in Miramichi did not have representation. The member of Parliament for Acadie-Bathurst testified that francophones in Miramichi went to see him to get help because they had trouble communicating with their member of Parliament, a unilingual anglophone.38 Another presenter who lived in Acadie-Bathurst testified that very few services were offered in French in Miramichi.39 And residents of Acadian villages that were transferred to Miramichi ten years ago from Beauséjour, a francophone electoral district, testified that they wanted to be transferred back to Beauséjour because they had nothing in common with the Miramichi community.40 That evidence is an indiction of what material was before the Commission in terms of the existence of services and representation in French in Miramichi. Having regard to that evidence, the Court cannot see how the Commission can have concluded that the Acadian community in Miramichi had effective representation. [63] I have already noted that the evidence filed by the Applicants in the case at hand supports the points and factors advanced by the Applicants as requiring consideration by the Commission. That evidence also shows the following circumstances obtain in Chéticamp: • Prior to April 2022 the nearest dialysis service was 100 kilometers away. It is now available in the Village of Chéticamp. It is still not available in French in Sydney or Inverness (Town). • The MLA resides at the other end of the county. He only visits the area sporadically. He has no office in the community. He does not speak French, which is an impediment for some members of the community. • The Access Nova Scotia and Registry Motor Vehicles offices in the Village of Chéticamp, where services could be obtained in French, have closed. There are some in Sydney, which is about 165 km away, and in Antigonish, which is about 185 km away. However, in Antigonish, they only provide services in English. • There has been a decline in the availability of services in the French language generally and in discussions taking place in the French language. Both were prevalent and occurred naturally in the past. Of particular concern is that there is a paucity of children’s activities available in French. • Even health services workers assume everyone can communicate effectively in English, including, in one instance, in the context of a COVID test, where the patient was only four years of age. In another instance, a patient’s husband had to translate for the patient while she was giving birth. • French-only schools in the area have been in older and less desirable buildings than those used by the English schools. • The French-language facility for long term care of elders in the area is in poor condition, overcrowded and requires more sharing of facilities such as bedrooms and washrooms than the English-language one in Inverness. • French names of roads and locations in the area have been changed to English names on public road signs. • Many residents have already been assimilated into the English language. • Residents do not feel that their voices are truly heard or that their interests are effectively represented at the provincial level. [64] I also re-emphasize the points and factors previously advanced and described in relation to Chéticamp. Of particularly note is that no Acadian or French-speaking MLA has been elected in the riding in which Chéticamp is located for almost 100 years, despite Chéticamp being one of the four Acadian homelands. [65] Given these circumstances, and the points and factors described above, there is even more reason to conclude that, in the case at hand, one cannot see how the Commission could have concluded that Chéticamp had effective representation. [66] Rather, the Commission does appear to have concluded that Chéticamp has not had effective representation. [67] I have already cited the Dissenting Members’ comment that the Acadians of Chéticamp have been left with “insufficient representation”. [68] I now highlight the following comments at page 85 of the Final Report: “Through settlement patterns, the Gaelic community has enjoyed effective representation by electing MLAs who are sensitive to and identify with their cultural, social, and economic interests as well as their efforts to revitalize their language and culture. This is particularly evident in the constituency areas of Antigonish, Victoria, and Inverness. However, this has not, in the long term, been the case for the Acadian population.” [69] This acknowledgment indicates that the Majority Members also recognized that the electoral boundaries they recommended would not provide Chéticamp effective representation. [70] That recognition, combined with the multiple references in the Final Report to balancing effective representation with voter parity, reveals the balancing exercise undertaken by the Majority Members of the Commission. Those multiple references include the following: • At page 2: “Canadian citizens have the right, under section 3, … to effective representation in the legislature, as well as … to voter parity”; • Also at page 2: “we have had to balance effective representation for all Nova Scotians with voter parity”; • At page 7, a reference that commissions were guided by “two key concepts”, “voter parity” and “effective representation”; and, • At page 14: “When we consider how our Terms of reference have guided our work, as with preceding electoral boundary commissions, the goal has been to develop electoral models that balance effective representation with voter parity.” [71] The Majority did make reference to the concept of balancing voter parity against countervailing factors, as follows, in “Appendix F, Approaches and strategies to more effective representation”: • At page 83: “Since 1991, leaving aside the 2012 controversy (page 10), Nova Scotia’s electoral boundaries commissions have worked with terms of reference that adhere to the Carter decision, reflecting the need to balance voter parity against other factors.” • At page 84: “In the Nova Scotia context, we interpret ‘historical, cultural or linguistic settlement patterns’ and ‘political boundaries’ in the Terms of reference, as following the spirit of the Carter decision in which the court balances voter parity with ‘community history, community interests and minority representation’.” [72] The one excerpt from the Majority Members which might support a finding that they actually balanced voter parity against countervailing factors is also in Appendix F, at page 86. It states: “[W]e recognized the importance of exploring and balancing the concept and options of effective representation for Acadians throughout the province—particularly those in Chéticamp and its surrounding area—as well as revisiting the restoration of the exceptional electoral districts. Unlike previous boundaries commissions, we held two public consultations in Chéticamp and heard the merits of adding it and its environs as an exceptional electoral district, which would result in a total of 56 electoral districts. Of course, these considerations have had to fall within the parameters of practical application and fairness to other voters. In such cases, 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.” [73] However, I highlight that this passage only describes the balancing exercise as being to determine whether a deviation created to provide effective representation to a community of interest “runs the risk of” creating a voter dilution that would result in inadequate representation for others. [74] The Supreme Court of Canada, in Carter, at page 183, in describing voter parity and its importance, stated: “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.” It then went on, at page 184, to state: “Notwithstanding the fact that the value of a citizen's vote should not be unduly diluted, it is a practical fact that effective representation often cannot be achieved without taking into account countervailing factors.” [75] Then, at page 185, it stated: “It emerges therefore that deviations from absolute voter parity may be justified on the grounds of practical impossibility or the provision of more effective representation. Beyond this, dilution of one citizen's vote as compared with another's should not be countenanced.” [76] So, the Supreme Court of Canada was saying that voter dilution of one group may be needed and justified, considering countervailing factors, to achieve effective representation of another. Though the Court did not expressly state it, one might extrapolate that it was also saying that an extreme deviation from parity creating voter dilution which undermines effective representation for the diluted group, would not be justifiable. However, the Court did not suggest that a mere risk of such excessive dilution would make it unjustifiable to provide effective representation to the group lacking it. [77] Dr. Sancton’s initial report, at paragraph 63, quotes a segment of the report of the Far North Electoral Boundaries Commission (“FNEBC”) in Ontario, which indicates that it also interpreted Carter as saying that the need to provide effective representation to one group may require and justify dilution of the vote of another group. The relevant segment states: “We did not set aside relative voter parity in our analysis; we tried to provide for the least significant deviations, accepting only deviations that could be justified on the grounds of practical impossibility or the necessity of giving sufficient weight to other factors needed to achieve effective representation. There is no undue dilution of voter parity when there is such necessity.” [78] Dr. Sancton’s initial report, at paragraph 64, quotes the following segment of that FNEBC Report, which indicates that commission also interpreted Carter as saying that some deviations from voter parity may be so great that they undermine effective representation for other groups: “The Supreme Court of Canada in Carter held that deviations from voter parity could be acceptable if justified according to the criteria it set out, but also contemplated that some variations would be so great as to be inconsistent with the primary principle of voter parity.” [79] It is noteworthy that one of the electoral districts it recommended had a voter population 70.1% below the provincial average, resulting in a seat entitlement of slightly less than 0.30, indicating it did not see that as too great a variation in the circumstances. That was in 2017. Dr. Sancton’s Supplementary Report, at paragraph 8, notes that, in 2022, after it was decided that one electoral district would be eliminated from Northern Ontario, the electoral boundaries commission then recommended joining that “original ‘extraordinary circumstance’ district” with another to create a new district with a voter population 46.9% below the provincial average, resulting in a seat entitlement slightly above 0.53. However, that did not render inapplicable the commission’s comment regarding the need to give sufficient weight to factors required to provide effective representation countering or overriding what might otherwise be considered undue vote dilution. [80] Ultimately, Carter stated that, though voter parity is “of prime importance”, the “primary goal” is effective representation. So, the duty of the Commission was to balance voter parity with countervailing factors to determine whether Chéticamp could be provided effective representation without unduly diluting the vote to the point of undermining effective representation for others. Even if they were concerned that there was a risk of that occurring, which they did not expressly state, that would be insufficient to justify denying effective representation to Chéticamp. [81] For these reasons, more likely than not, the Majority Members either balanced the importance of effective representation against the importance of voter parity, or they ascribed too much weight to voter parity because they buttressed that factor with an un-specified risk of voter dilution. Instead, they were to remain focussed on “the primary goal of effective representation”, considering voter parity and the countervailing factors, and determine how that primary goal could be achieved for all electoral districts. [82] I contrast the approach expressed by the Majority Members with that expressed by the Dissenting Members, at page 49 of the Letter of Dissent, as follows: “In our mandatory Terms of reference, #1 states: “There is a right to effective representation, and elector parity is the prime factor in determining the electoral boundaries” (page 5). Yet, the Carter 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.” [83] At page 50, they stated: “We feel that the parity deviation for Chéticamp and environs contributes to better government for the populace as a whole.” They continued by explaining why. [84] Then, also on page 50, they addressed the question of the effect of vote dilution on others, stating that they “question any notion that urban and other Nova Scotian voters may experience ill effects regarding their political representation because of Chéticamp’s significant parity deviation”. Their reference to a concern that other “voters may experience ill effects regarding their political representation because of Chéticamp’s significant parity deviation” suggests that they are addressing a speculative result argued by the Majority Members. [85] Overall, the approach of the Minority Members is consistent with the guidelines provided in Carter, and that of the Majority Members is not. [86] In the event I am wrong, and the Majority Members used a proper approach in the balancing exercise, I will examine whether their ultimate decision was reasoned or arbitrary. Reasoned or Arbitrary Decision [87] As previously noted, Nova Scotia argues that, since the Commission did not recommend an exceptional electoral district for Chéticamp, it need not justify its decision not to do so, because it is only charged with identifying justification for exceptional deviations. [88] Also as previously noted, that argument is contrary to the comments, at page 187 of Carter, that “historical anomalies and abuses” relating to the right to effective representation cannot “be used to justify continued anomalies and abuses”. [89] In addition, the Commission had the extensive reasons advanced by the Dissenting Members as to why an exceptional electoral district was required to provide effective representation to the Acadians of Chéticamp. Therefore, it was incumbent upon the Majority Members to provide reasons for not recommending an exceptional electoral district for Chéticamp. [90] The Court in Reference re: Order in Council 215/93 Respecting the Electoral Divisions Statutes Amendment Act, 1994 ABCA 342, declined a request to determine whether the electoral boundaries infringed the Charter, stating, at paragraph 51, “it is impossible for us to say that the effort here meets a Charter challenge when we do not know with any precision the reasons for the boundaries under review”. The committee having set the boundaries had not provided any specific explanation for any of the boundaries. It had only set out its general approach and the principles by which it was guided. It had also included a recommendation that the legislation resulting from its recommendation be presented to the Alberta Court of Appeal as a reference question to determine whether the boundaries were Charter-compliant. The Court of Appeal stated, at paragraph 58, that a “riding-by-riding justification” was required. This decision highlights the importance of reasons. [91] The Alberta Court of Appeal was dealing with a reference question, as opposed to an application for a declaration of invalidity. Therefore, it did not have to rule on whether it could declare boundaries unconstitutional and thus invalid, where there were no, or insufficient, reasons to justify them. However, in the event the decision might be interpreted as saying that the boundaries of a particular riding cannot be found to violate the Charter where the commission did not give reasons for establishing them, I note the following distinguishing features in the case at hand. [92] In the case at hand, the Commission gave detailed reasons for recommending that multiple exceptional electoral districts be established. There was sufficient information before the Commission, and there is sufficient information before this Court, to compare the circumstances in Chéticamp / Inverness with those in the recommended electoral districts. The reasons for recommending the other districts provide insight into what the Commission considered reasonable justification for an exceptional electoral district and what, in its view, did not qualify as undue voter dilution. The Dissenting Members have provided extensive reasons justifying a Chéticamp riding. In these circumstances, the paucity or lack of reasons from the Majority Members, refuting the position of the dissenting members and explaining their rejection of an exceptional electoral district for Chéticamp, does not prevent the Court from assessing whether that rejection infringes s. 3 of the Charter and whether the Commission was consistent in its decision-making approach across ridings. [93] It might also be argued that, since the Commission was an independent body, appointed by a Select Committee made up of representatives from each political party it need not give reasons. The process is designed to produce a fair and balanced composition of commission members. However, intentionally or unintentionally, the resulting composition may be slanted in favour of, or against, a particular approach, causing it to put too much weight on considerations they support, and not enough weight on those they do not. Articulating reasons provides an extra level of protection and can provide assurance to the House of Assembly, as well as the general public, that the Commission has completed its task in a fair and balanced way and has considered the relevant factors. [94] One point in relation to the composition of this Commission, that illustrates the potential for a slanted approach, arises from the following comments in the Letter of Dissent: “As a final point on the Chéticamp and environs decision, we would like to highlight the composition of the 2018–19 Electoral Boundaries Commission. While five of nine of our commissioner colleagues live in Halifax and its surrounding urban areas, 59 per cent of Nova Scotia’s electors live outside HRM. It was an absolute pleasure to work with such a collegial and knowledgeable group of commissioners; however, we would be remiss if we did not suggest that the majority’s decision regarding Chéticamp and environs was, in part, a reflection of the aforementioned urban-rural divide and differing visions of what the future could hold for rural Nova Scotia. Indeed, the rejection of a more effective representation option for Acadians in the Chéticamp area highlights the urban-rural schism that continues to be evident in Nova Scotia and other provinces (Wesley 2016).” [95] On this point, I also note and agree with the comments in the 2022, Report of the Federal Electoral Boundaries Commission for the Province of Quebec, cited at paragraph 6 of Dr. Sancton’s supplementary report, that it is important “for a commission to ‘frame’ the exercise of its discretion, if only to help it demonstrate consistency in its exercise”. [96] In the case at hand, the Applicants submit that the Majority Members did not give Chéticamp and the remainder of Inverness the same level of consideration it gave to the other districts it recommended as exceptional electoral districts. The Dissenting Members suggested the Majority Members were slanted in favour urban constituencies. [97] In these circumstances, it was particularly important and necessary for the Commission to state their reasons for rejecting an exceptional electoral district for Chéticamp. [98] The Majority Members did not expressly articulate their reasons. [99] Clues to potential reasons might be gleaned from the following statements in the Final Report: • At page 15: “[I]n some cases voter parity and protection of communities of interest may appear to be at cross-purposes with each other. For example, it is far from certain that protection is a reasonable solution in districts where the population is in continuing decline. The potential for greater urban-rural conflict exists on this issue.” • At page 83: “In adhering to the Terms of reference we did our best to foresee and consider possible knock-on effects that may affect adjacent electoral districts when boundaries are adjusted. Knock-on effects could be judged to be beneficial or detrimental. Such effects may include disruptions to boundaries surrounding communities of interest, traditional county or municipal boundaries, or the entitlement index.” • At page 84, in relation to deviations for geography: “One could argue that an indirect result of the way boundaries are redrawn actually contributes to further rural decline. In contrast, urban voters argue that their vote is diluted when preferential treatment is given to rural areas beyond meeting relative voter parity.” • At page 86, the previously noted comment that: “[T]hese considerations [regarding effective representation for Acadians – particularly those in Chéticamp] have had to fall within the parameters of practical application and fairness to other voters. In such cases, 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.” • At page 48, though it is part of the Letter of Dissent: “It has been argued that the commission’s proposals to address effective representation in Chéticamp and environs yielded an unacceptable deviation from voter parity.” [100] In addition, at page 21 of the Interim Report, the Commission, after discussing an exceptional electoral district for Chéticamp, which would also accommodate the Gaelic community in the southern part of Inverness, stated: “However, such an exceptional electoral district is also problematic in that the resulting deviation from voter parity is quite acute.” [101] These clues suggest that one might view the Majority Member’s reason, for excluding Chéticamp as an exceptional riding, as being that the population of interest was so small that it could not be provided effective representation without unduly diluting votes in bordering districts, or in urban districts, and undermining effective representation in those other districts, particularly considering the trend towards urbanization. [102] That obviously would be a result to be avoided. However, there is no indication why the Majority Members may have been of that view other than to mention that representations from urban voters raised concerns about voter dilution. They did discuss that hiving off a portion of Inverness for a Chéticamp riding would create another district with voter population less than 25% below the provincial average. However, that would not result in a dilution of their vote. [103] Carter made it clear that having higher voter populations in urban areas than in rural areas does not infringe s. 3 rights if it does not unduly dilute the vote and thus undermine effective representation in urban areas. It explained why, starting at page 194, as follows: [I]t may be useful to mention some of the factors other than equality of voting power which figure in the analysis. One of the most important is the fact that it is more difficult to represent rural ridings than urban. The material before us suggests that not only are rural ridings harder to serve because of difficulty in transport and communications, but that rural voters make greater demands on their elected representatives, whether because of the absence of alternative resources to be found in urban centres or for other reasons. Thus, the goal of effective representation may justify somewhat lower voter populations in rural areas. [104] In the case at hand, the Commission took voter parity to include a voter population anywhere between 25% under and 25% above the provincial average. Only recommended ridings outside that range are considered exceptional electoral districts. However, it is still interesting to look at some of the variations within the “voter parity range”. [105] Halifax Regional Municipality (“HRM”) contains the greatest concentration of urban ridings. Therefore, one might expect the electoral boundary recommendations for it to produce a higher average seat entitlement (i.e. a higher average voter population) than the regions predominantly comprised of rural ridings. That would certainly be in conformity with the comments in Carter regarding the differences between rural and urban ridings. [106] However, Table 7, at page 42 of the Final Report shows that that is not the case. [107] The average seat entitlement for the ridings recommended for HRM is shown as being 1.05. That is less than the average seat entitlements for Annapolis Valley and South Shore, which are shown as having average seat entitlements of 1.16 and 1.12 respectively. It is the same as the average seat entitlement for Fundy Northeast. Those are essentially comprised of rural ridings. [108] So, there appears to have been room to increase the size of the urban constituencies within HRM, without undermining their effective representation through undue vote dilution. Constituents in those urban ridings have ready and convenient in-person access to their representative as their offices are relatively close and those ridings are serviced by an extensive public transportation system. In addition, those constituents have less reason to be concerned about having someone advocate for government offices and services in their immediate constituency. They can readily access the offices and services they need anywhere in the HRM concentration of urban ridings in Halifax-Dartmouth. [109] Though the Commission referred to the trend towards urbanization, it did not state what, if any, population increases it expected would occur in the urban ridings, prior to the next review of electoral boundaries, which might make it reasonable to have a lower average seat entitlement in HRM than in regions comprised of rural ridings. [110] Table 4, at page 43 of the Interim Report, indicates that the boundaries the Commission had in mind for a Chéticamp riding, would create a seat entitlement of 0.19 (having 2585 voters), leaving the rest of Inverness with a seat entitlement of 0.83 (having 11,076 voters). [111] A seat entitlement of only 0.19 could reasonably be characterized as being a quite acute deviation. However, the Table 4 figures are based on the boundaries noted in Map 56 – 2, at page 67 of the Interim Report, for the potential district numbered “09”. That is not the same boundary as was proposed to the Commission in the position papers submitted by the FANE and by Réjean Aucoin, in January 2019. They proposed a southern boundary extending further to the South, and running approximately west to east, roughly perpendicular to the shoreline. They proposed it because it would encompass the large number of voters that are of Acadian origin in East Margaree, as well as because the residents of the southern part of the district they suggested supported being part of an exceptional district for Chéticamp. Instead, the boundary of potential District 09, follows what appears to be the Northeast Margaree River, cutting of East Margaree, Northeast Margaree and Southwest Margaree. [112] The materials filed in this application do not provide the seat entitlement or voter population for the district boundaries proposed by the FANE and Mr. Aucoin. However, they do contain information regarding the total population, and the Acadian or Francophone population, of the District of Inverness. That allows a comparison to be made with the districts that the Commission concluded justified recommending an exceptional electoral district. [113] The Commission recommended exceptional Acadian ridings for Argyle (with a seat entitlement of 0.48), Clare (with a seat entitlement of 0.51) and Richmond (with a seat entitlement of 0.56). It recommended exceptional ridings based on geography alone for Guysborough-Tracadie (with a seat entitlement of 0.58) and Queens (with a seat entitlement of 0.64). [114] The seat entitlement of Inverness District is 1.02. Splitting the district roughly in two would create two districts with a seat entitlement of about 0.51 each. That is a higher seat entitlement than Argyle and the same as Clare. [115] Also, according to the 2016 Census figures reproduced at page 193 of the report submitted by the 2017 Commission, “Toward More Effective Representation for Acadian and African Nova Scotians”, Inverness had 2,134 voters whose mother tongue was French and Richmond had 2,064. That indicates a potential for creating a Chéticamp riding with about the same number of Francophone voters as Richmond, even if that might require a non-contiguous exceptional electoral district within the current District of Inverness. [116] It is also noteworthy that an exceptional electoral district was recommended for Digby-Annapolis to accommodate the knock-on effects of an exceptional Acadian riding for Clare, as well as the position of the voters from Annapolis Royal that they wanted to remain in the District of Annapolis. Digby-Annapolis has a seat entitlement of 0.74. So, it is just outside the – 25% deviation. [117] An exceptional electoral district for what would remain of Inverness after creating a Chéticamp riding would have a greater deviation. However, there is arguably more reason to create an Inverness exceptional riding than there was to create a Digby-Annapolis exceptional riding, which could easily have been avoided by including all or part of Annapolis Royal. The Commission itself, in the Interim Report, noted the two following potential justifications for creating an exceptional Inverness riding, in addition to accommodating a Chéticamp riding: • Like the former Guysborough-Eastern Shore-Tracadie riding, Inverness is a geographically large riding. Both exceed 200 kilometres, north to south. The Dissenting Members, in their Letter of Dissent, described it as “unwieldy” and highlighted the difficulty the size of the constituency created for meeting with the MLA. • It would “provide boundaries that also benefit the Gaelic cultural community throughout Inverness”, which, like the Acadians, has also been subject to pressures to assimilate. The Final Report, at page 81, notes that the Commission had received submissions urging them to “recognize the marginalization of the Gaels”. [118] In the Final Report, the Commission did not explain why those reasons, combined with the reasons for creating an exceptional riding for Chéticamp, did not provide sufficient justification. [119] I highlight that the Commission, in its Interim Report, at page 14, stated the following in relation to the newly created exceptional electoral district of Guysborough-Tracadie: “While this change creates a marked deviation from parity, we believe it will not negatively affect the voting rights of other Nova Scotians.” Guysborough-Tracadie has a seat entitlement of only 0.58. Though the Commission did not expressly state that creating exceptional ridings for Argyle, Clare and Richmond “would not negatively affect the voting rights of other Nova Scotians”, one can infer from the fact that it recommended them as exceptional electoral districts, that it was at least of the view that it would not negatively affect the voting rights of others to the point of undermining their effective representation. They have seat entitlements of 0.48, 0.51 and 0.56, respectively. The commission did not indicate how a Chéticamp district, or a district for the rest of Inverness, with a similar seat entitlement would have such a negative effect on other voters. [120] It was the Commission’s role to explore whether electoral boundaries could be configured for Chéticamp that would provide it with effective representation, create a less acute deviation, and avoid undermining effective representation for other districts. Neither the Interim Report nor the Final Report indicates that it did that in a meaningful way. Instead, the Reports indicate the Commission reached its conclusion based on the boundaries of potential District 09 shown on Map 56 – 2, at page 67 of the Interim Report, without giving any serious consideration to other potential boundaries or exploring what deviation from voter parity they would create. In that regard, I note the following comments at page 21 of the Interim Report: “We also looked at the option of expanding this proposed new electoral district to include most of ‘the Margarees’, the national park, and the coastal communities of Victoria County that surround it. However, we did not discuss this option extensively, nor did the public.” [121] The Commission has also not provided any reason why creating an exceptional electoral district for Chéticamp would not “contribute to better government of the populace as a whole”. The Dissenting Members provided reasons why it would. Those reasons are contained in the excerpts from the Letter of Dissent I have already reproduced above. [122] So, the Majority Members have rejected the proposal of the Dissenting Members to create an exceptional electoral district for Chéticamp, without providing any reason for their decision, and with the reasons not being apparent in their reports or the materials the Commission reviewed. Therefore, the rejection of a Chéticamp riding was unreasoned and, thus, arbitrary. [123] Arbitrary decisions on issues that impact Charter rights infringe those rights. That is why Carter, at pages 192, 194 and 196, discussed whether the setting of electoral boundaries, or the process leading to it, were “arbitrary”. [124] Also, in Canadian Disability Rights Council v. Canada, [1988] 3 F.C. 622, the court concluded that a provision in the Canada Elections Act, which disqualified, from voting, those persons suffering from mental disease “whose liberty of movement has been restrained or whose property is under the control of a committee of estate”, violated s. 3 of the Charter because it was arbitrary. [125] Arbitrary decisions have been found to infringe Charter rights in other contexts as well. One example is Canada (Attorney General) v. PHS Community Services, 2011 SCC 44. PHS involved a safe injection site clinic that had been operating under an exemption from the federal Minister of Health under s. 56 of the Controlled Drugs and Substances Act (“CDSA”). The Minister subsequently refused an application to extend the exemption. At the time he had the report of the Expert Advisory Committee, the application, and a statement of support for the exemption from the provincial Minister of Health. He had concluded that the scientific evidence was mixed. He disagreed the Clinic was a public health success. He saw it as representing a “failure of public policy”. A unanimous Supreme Court concluded the refusal to grant the exemption was arbitrary as it was made on the basis of “policy simpliciter” and undermined the purposes of the CDSA, which included public health and safety, instead of furthering them. [126] Our Court of Appeal, in the Reference Opinion, at paragraph145, articulated the objective of s. 5 of the Act as being to “implement Carter’s constitutional principles of effective representation in Nova Scotia’s circumstances, with the assistance of an independent commission”. [127] The Commission’s decision to refuse to recommend an exceptional electoral district for Chéticamp was based on a speculative risk of unduly diluting the urban vote, and on potential electoral boundaries that were unnecessarily squeezed to the point of creating an unnecessarily acute deviation from voter parity. It did not further the objective of implementing “Carter’s constitutional principles of effective representation in Nova Scotia’s circumstances”, despite having at least implicitly recognized that Chéticamp had been denied effective representation for about a century. Rather, it undermined that objective. [128] In the case at hand, the Commission’s arbitrary decision impacted the right of the Acadians of Chéticamp to effective representation under s. 3 of the Charter and, in so doing, infringed that right. [129] Raîche, at paragraph 32, stated that courts will “respect the choices made by the [electoral boundaries] commissions if their decisions are defensible”. Justice McLachlin, as she then was, for the Majority in Carter, at page 189, stated that legislated electoral boundaries should not be interfered with “under s. 3 of the Charter, unless it appears that reasonable persons applying the appropriate principles … could not have set the electoral boundaries as they exist”. [130] The information provided to this Court as having been before the Commission, does not reveal any reasonable reason why exceptional electoral districts would not have been recommended and created for Chéticamp and the remainder of Inverness, nor how the rejection of such districts by the Majority Members is defensible. The information indicates such districts could have: had similar seat entitlements as the other Acadian ridings; for Chéticamp, been justifiable for the same reasons as the other Acadian Ridings; and, for the remainder of Inverness, been justifiable by reason of the length, terrain and weather of Inverness, as well as the telecommunication issues there, plus the benefit to the Gaelic cultural community. If there are considerations which shed light on the reasonableness or defensibility of the decision, they have not been expressed or revealed. [131] As highlighted in the Letter of Dissent, the Majority Members placed excessive weight on a concern for dilution of the urban vote and no real justification for that was apparent in the Reports or materials considered. The fact that the Commission was composed of a disproportionate number of members from Halifax and the surrounding urban areas, in comparison with the percentage of Nova Scotia voters living outside HRM, supports the view of the Dissenting Members that the ultimate recommendation was the result of the “urban-rural divide”. It also implies that the Majority Members were swayed by their bias which resulted in favouring of, or seeing more future potential in, urban constituencies over rural constituencies. Articulating reasons for rejecting a Chéticamp riding, if there were reasonable reasons for doing so, might have dispelled that appearance or this view. [132] Dr. Sancton’s report contains reasons why, in his opinion, an exceptional electoral district for Chéticamp would create too great a deviation from voter parity. That opinion was provided after the Commission completed its work, and, of course, not considered by the Commission. Therefore, it cannot be taken as the reasons of the Commission. I will nevertheless provide some comments in response to Dr. Sancton’s reasons. Dr. Sancton’s Reasons [133] The Sancton Opinion advances reasons why creating an exceptional electoral district for Chéticamp would exceed justifiable deviation from voter parity to the point of undermining representation from other districts. Those reasons and my comments on them include the following: • He states that voters in Halifax cannot be expected to try to ensure that their electoral district is not overly populated compared to others. However, the average seat entitlement in HRM is 1.05 and is lower than some rural electoral districts. Further, the Majority in Carter clearly stated that it is justifiable for urban electoral districts to have a higher population than rural electoral districts. There was room to increase the voter population of HRM constituencies. There was no indication that creating exceptional electoral districts for Chéticamp and the rest of Inverness even risked overpopulating districts in Halifax. • He notes that the potential electoral district identified in the Interim Report would create a district with a voter population of 81% below the provincial average (i.e. a seat entitlement of 0.19). He also states that the Applicants have not provided suggested boundaries. He correctly identifies the potential boundaries and the resulting deviation in the Interim Report. However, different boundaries, with reasonable justifications for them, had been suggested to the Commission by the Applicants. We do not have the population data, nor the deviation resulting from those proposed boundaries. However, as previously indicated, the total population of Inverness would appear to allow boundary delineations which would create deviations that the Commission has found to be justified for other districts. • He states that we “do not know what non-Acadians might think of” extending “the Chéticamp boundaries beyond those demarcated in the commission’s Interim Report (presumably to the south within Inverness County)”. That comment ignores the evidence of Maurice LeLièvre and Marcel Bourgeois that “the citizens of Meat Cove and Margaree - both locations adjacent to Chéticamp”, had filed, with the Commission, letters “supporting a riding for the Chéticamp region”. • Highlighting his experience in dealing with, or examining, boundaries of electoral districts in northern Ontario and other isolated northern areas of Canada, he states there is no justification for the claim that a re-examination of the boundaries of the district of Inverness is warranted based on geographical factors alone. This statement ignores that Inverness stretches approximately the same North to South length as the former Guysborough-Eastern Shore- Tracadie District, which was split for geographical reasons alone, as well as the uniquely harsh winds, heavy snowfalls and telecommunication issues commonly experienced in the Chéticamp area. I also note that the extra-provincial constituencies he identifies in his reports are federal constituencies which generally cover a wider geographical area than provincial constituencies. • He notes that the potential Chéticamp District mapped out in the Interim Report has a “smaller proportion of French-mother-tongue residents than both Clare and Argyle”. However, according to the census data noted above, Inverness has slightly more French-mother-tongue residents than Richmond, for which an exceptional electoral district was recommended and created, and, the ability to extend the proposed southern boundary or create non-contiguous districts, if necessary, would likely allow the capture of sufficient concentrated pockets of Acadian or Francophone voters to have a number comparable to Richmond. • He distinguishes a potential Chéticamp and Inverness division from that in Clare and Digby-Annapolis for reasons which I have already addressed and because Clare is a municipality, but Chéticamp is not. That ignores the fact that Digby-Annapolis is not a municipality, plus that it straddles two different counties, which is a result that a Chéticamp and Inverness division would not create. [134] Therefore, even if the reasons Dr. Sancton advances were part of the reasons of the Majority Members, they would not adequately explain the rejection of an exceptional riding for Chéticamp. Conclusion on S. 3 Infringement [135] For the reasons noted, I find that the decision of the Commission to reject an exceptional electoral district for Chéticamp infringed s. 3 of the Charter because of one or both of the following: 1. the Majority Members took the wrong approach in the balancing exercise, as they balanced voter parity against effective representation, or they assigned too much weight to voter parity because they buttressed it with an unspecified risk of voter dilution; or, 2. the decision was arrived at and rendered in an unreasoned and arbitrary manner. [136] The Legislature passed legislation fully implementing the Commission’s recommendation unchanged. That legislative process does not erase the Charter infringement which was implemented. Therefore, the House of Assembly’s acceptance of the Commission’s recommendation not to declare Chéticamp an exceptional electoral district, under paragraph 5 (5B) (e) of the House of Assembly Act, also infringes s. 3 of the Charter. ISSUE 2: IF SO, IS THE INFRINGEMENT JUSTIFIED UNDER S. 1? [137] S. 1 of the Charter states: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” [138] In the Reference Opinion case, at paragraph 139, the Court made comments suggesting it was of the view that the adjusted Doré approach to the s. 1 justification analysis might be more appropriate than the Oakes approach because electoral boundaries commissions are statutory bodies “with discretion to weigh the Charter-sourced criteria of effective representation”. However, it went on to apply the Oakes approach because both parties were of the view that Oakes applied and neither had provided any submissions based on Doré v. Barreau du Québec, 2012 SCC 12. [139] Similarly, in the case at hand, both sides made s. 1 justification submissions based on R. v. Oakes, [1986] 1 S.C.R. 103. Therefore, I will also apply the Oakes approach. [140] That approach is summarized at paragraphs 140 to 142 of the Reference Opinion case as follows: [140] Oakes, paras. 69-70, establishes a two-branched test. First – is the legislative objective that impelled the Charter infringement of sufficient importance to warrant overriding a constitutionally protected right or freedom? Second – if so, is the measure that was adopted proportionate to the legislative objective in each of three respects: (1) is the measure rationally connected to the objective? (2) does the measure impair the right or freedom no more than necessary to achieve the objective? (3) are the deleterious and salutary effects of the measure in proportion? [141] In Oakes, Chief Justice Dickson said: 66. The onus of proving that a limit on a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation. [142] Here the Province has the onus. Sufficiently Important Legislative Objective [141] Nova Scotia submits that “the pressing and substantial objective for establishing electoral boundaries commissions every 10 years is to reassess existing boundaries against changing demographics to ensure effective representation of electors”. [142] The Reference Opinion, at paragraph 145, described the legislative objective as being “to implement Carter’s constitutional principles of effective representation in Nova Scotia’s circumstances, with the assistance of an independent commission as contemplated by s. 5 of the House of Assembly Act”, and concluded that was a “pressing and substantial objective”. [143] That is a more precise way of expressing that which Nova Scotia’s submission conveys and is directly applicable to the circumstances of the case at hand. Therefore, I adopt and follow our Court of Appeal’s articulation of the legislative objective and its conclusion on this first branch of the Oakes test. [144] As our Court of Appeal concluded, that is a pressing and substantial objective, and, thus, sufficiently important. [145] The Applicants submit that the decision to not recognize Chéticamp as an exceptional electoral district shows that Commission failed in its initiative or objective of providing effective representation in the form of a realistic chance of electing an MLA who will truly represent them and failed to respect the cultural identity of the people of Chéticamp. That submission relates more properly to the rational connection portion of the proportionality branch of the test. Proportionality Rational Connection [146] Nova Scotia submits that “the creation of independent, non-partisan electoral boundaries commissions and acceptance of their recommendations [ which allows them ‘latitude to make recommendations on electoral boundaries’] is rationally connected to the objective of ensuring effective representation of electors”. [147] However, that assumes there is nothing in the Commission’s process which infringes s. 3 rights. If the Commission’s recommendations do not “implement Carter’s constitutional principles of effective representation”, then, accepting them and making them law cannot be said to be rationally connected to the legislative objective. [148] In the Reference Opinion case, the Court concluded that the intervention of the Attorney General, which prevented the Commission from expressing its view of effective representation, “was disconnected from the legislative objective”. If a commission fails to properly consider and express its view of effective representation for some other reason, the result is the same. It would not make sense to conclude that any recommendation coming from a Commission, without interference by the Province, would be rationally connected to the legislative objective and that the Legislature must accept it as such. [149] In addition, Oakes, at page 139, stated that the measures in question cannot be rationally connected if they are “arbitrary”. As I have found that the decision of the Commission to not recommend an exceptional electoral district for Chéticamp was arbitrary, the recommendation and its acceptance cannot be rationally connected to the legislative objective. [150] For these reasons, I find that Nova Scotia has not established the rational connection portion of the proportionality branch of the Oakes test. Minimal Impairment and Proportionality Between Effects and Measures [151] Having concluded that the Commission’s process, which infringed s. 3 of the Charter, does not pass the first component of the proportionality branch of the Oakes test, I need not consider the other two components. S. 1 Justification Conclusion [152] For these reasons, the infringement of s. 3 is not justified under s. 1. ISSUE 3: IF THE INFRINGEMENT IS NOT JUSTIFIED UNDER S. 1, WHAT IS THE APPROPRIATE REMEDY? [153] As indicated, the Applicants seek a declaration that, by failing to declare the Acadian Region of Chéticamp as an exceptional electoral district, under paragraph 5 (5B) (e) of the House of Assembly Act, the Respondent violated s. 3 of the Charter. [154] They also ask for an order suspending the effect of the declaration on the legislation implementing the recommendations of the Commission for a period of 12 months to allow time for a new electoral boundaries commission to be established to review the electoral boundaries of the Acadian region of Chéticamp and area, leaving it open to that commission to explore any option that would provide that region with effective representation. [155] Nova Scotia agrees that any remedy imposed would require a further commission to be established as this Court does not have sufficient information before it to permit it to define and direct boundaries. [156] In Dixon v. British Columbia (Attorney General), 1989 CanLII 248 (B.C.S.C.), Justice McLachlin, as she then was, after finding the electoral distribution, and thus the law implementing it, unconstitutional, declared the law “of no force and effect”, as was required by s. 52 of the Charter. However, she recognized the “constitutional crisis” that could be caused by the impossibility of conducting an election, should one be called, before the electoral districts could be restored. To avoid that, pursuant to subs. 24(1) of the Charter, she suspended the effect of the declaration, and allowed the legislation to remain provisionally in place, for a period to be determined following additional submissions, that would “reasonably be required to remedy the legislation”. [157] In the case at hand, I have already received submissions on an appropriate period of suspension. The Applicants suggest 12 months. Nova Scotia does not dispute the reasonableness of that period. However, I note the following points which bear upon the question of an appropriate suspension period. [158] The resolution to form the Select Committee which established the 2019 Commission was passed on March 27, 2018. (Such a resolution could not be expected to be passed instantaneously upon delivery of this decision.) The Commission’s Final Report was released in April 2019. The legislation implementing the recommendations received Royal Assent on October 30, 2019. So, the process for that boundary review took more than 19 months. [159] The constitutional challenge in the case at hand only directly related to the Inverness District. However, s. 5 of the Act provides that the legislated electoral districts “have effect until new electoral districts are approved pursuant to” that section. S. 5 requires all the steps that were taken in relation to the 2019 Commission to be taken by, and in relation to, any new commission established. In addition, it has been about five and one-half years since the Commission’s Final Report was released. So, any new reviewing commission will likely want to look at what, if any, relevant changes have occurred in the interim. [160] For these reasons, I find that a more realistic period of suspension is 20 months. [161] I agree with the remedial approach in Dixon and the reasons for it. They are of direct application to the case at hand. [162] Therefore, the most fit and proper remedy for the within Charter breach, which is not justified under s. 1, is to declare s. 4 of the Act of no force and effect, but to suspend the effect of that declaration, and allow s. 4 to remain provisionally in place, for a period of roughly 20 months. CONCLUSION [163] For the foregoing reasons, I: 1. Conclude and declare that the House of Assembly’s acceptance of the Commission’s recommendation not to declare Chéticamp an exceptional electoral district under paragraph 5 (5B) (e) of the House of Assembly Act, infringes s. 3 of the Charter and the infringement is not justified under s. 1; 2. Declare, pursuant to s. 52 of the Charter, that s. 4 of the House of Assembly Act is of no force and effect; and, 3. Pursuant to subs. 24(1) of the Charter suspend the effect of this declaration until July 15, 2026, allowing s. 4 of the House of Assembly Act to remain provisionally in place during the period of suspension. [164] I ask counsel for the Applicants to prepare the Order. [165] If the parties are unable to agree on costs, I will receive submissions in writing on the issue. Muise, J.