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

                                                                                                                                  Date: 20040511

                                                                                                                             Docket: T-1730-03

                                                                                                                   Reference: 2004 FC 679

Ottawa, Ontario, May 11, 2004

PRESENT: THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

                            CARMEL RAÎCHE, IAN OLIVER, L'ASSOCIATION DES

MUNICIPALITÉS DU NOUVEAU-BRUNSWICK INC.,

BATHURST REGIONAL AIRPORT COMMISSION INC.,

GREATER BATHURST CHAMBER OF COMMERCE

and CITY OF BATHURST

                                                                                                                                           Applicants

                                                                         - and -

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                                         - and -

                    THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA

                                                                                                                                          Intervener

                                            REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                The question for consideration is one which gives substance to the entire discussion: was the community of interests, as well as its identity, the historical pattern of the electoral district in the province and its geographic aspect considered in addition to (population count) numbers, in accordance with the requirements of the Electoral Boundaries Readjustment Act?^[1]

HISTORY OF THE CASE

[2]                This is an application for judicial review of a proclamation by Her Majesty the Queen entitled Proclamation Declaring the Representation Order to be in Force Effective on the First Dissolution of Parliament that Occurs after August 25, 2004, in which the parish of Allardville and part of the parishes of Saumarez and Bathurst were transferred from the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi.

[3]                The applicants are asking:

(a) That a writ of certiorari be issued setting aside and quashing the Proclamation as it relates to the transfer of the following areas of the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi, in New Brunswick:

     That part of the County of Gloucester comprised of:

(i) that part of the Parish of Allardville lying westerly of a line described as follows: commencing at the most northwesterly corner of the Parish of Saumarez; thence northwesterly in a straight line to the most southwesterly corner of the Parish of New Bandon;

(ii) that part of the Parish of Bathurst lying westerly of a line described as follows: commencing at the intersection of the northerly limit of the Parish of Allardville with Highway No. 8; thence northerly along said highway to the southerly limit of the City of Bathurst;

At the hearing, the applicants asked that the following request for a writ of prohibition be deleted:

(b) That a writ of prohibition be issued against the respondent requiring that the respondent adhere to the boundaries of the electoral district of Acadie-Bathurst as they were drawn before the Commission was established.^[2]

(c) Costs and disbursements; and

(d) Such further and other order as to this honourable Court may seem just.

FACTS

[4]                The number of federal electoral districts in each province, which determines each province's representation in the House of Commons, and the boundaries of the electoral districts are readjusted after each decennial census to reflect changes and movements in the population, in accordance with the Constitution Act, 1867^[3] and the Readjustment Act.

[5]                Accordingly, a non-partisan and independent commission is established to examine existing electoral boundaries and make appropriate changes. The Commission proposes a plan for the readjustment of federal electoral boundaries. That plan is published in newspaper advertisements containing maps of the proposed electoral boundaries. After the proposals are published, the Commission consults the communities affected by the changes to the electoral districts. After consulting the community, the Commission considers the recommendations and concerns of the community, proposes a final plan for the readjustment of federal electoral boundaries.

[6]                The Chief Electoral Officer then refers the Commission's report to the Speaker of the House of Commons and prepares a draft electoral representation order.

[7]                Once the draft representation order is complete, it is proclaimed, and takes effect on the first dissolution of Parliament that occurs at least one year after its proclamation.

[8]                A Federal Electoral Boundaries Commission was established for New Brunswick (the Commission) on April 16, 2002, to propose a plan for the readjustment of federal electoral boundaries.

[9]                On May 9, 2002, the Commission wrote an initial report setting out its proposals for the new boundaries of the electoral districts in New Brunswick.

[10]            On June 29, 2002, the Commission published its proposals. Amongst others, it recommended that the parish of Allardville and part of the parishes of Saumarez and Bathurst be transferred from the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi. It made that recommendation because if the boundaries were not adjusted, the electoral district of Acadie-Bathurst would have an almost +14 percent variance from the electoral quota, while the neighbouring electoral district of Miramichi would have a variance of -21 percent.

[11]            From September 3 to October 17, the Commission held nine public hearings and received submissions and comments from the communities regarding the proposed changes.

[12]            At the public hearing for the electoral district of Miramichi held on September 4, 2002, in Miramichi, the Commission received two presentations out of six that dealt specifically with the above-mentioned changes. One presentation supported the Commission's recommendations, while the other opposed them.

[13]            At the public hearing for the electoral district of Acadie-Bathurst held on September 5, 2002, in Caraquet, the members of the Commission heard eighteen presentations from members of the public, fourteen of which dealt specifically with the above-mentioned changes. The presenters asked that the parishes of Allardville, Saumarez and Bathurst be left in the electoral district of Acadie-Bathurst.

[14]            The presenters supported preserving the status quo, citing the concepts of community of interests and community of identity. A number of them elaborated on those concepts, arguing that it is difficult to imagine a region that is more linguistically homogeneous and culturally distinct, with as much history, as the region of Acadie-Bathurst. They explained that a great deal of effort has been made in the past to develop the northeastern region of New Brunswick; the proposed changes to the electoral district would destroy what has been accomplished and interfere with further development, both social and economic.

[15]            A petition signed by 2,656 people supporting the status quo was also submitted to the members of the Commission.

DECISION OF THE COMMISSION

[16]            In the report that the Commission presented to the Standing Committee on Procedure and House Affairs, the Commission maintained its recommendation that the parish of Allardville and part of the parishes of Saumarez and Bathurst be transferred from the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi.^[4]

[17]            In February 2003, after the Commission's report was submitted, the Commissioner of Official Languages (the Commissioner) received three complaints against the Commission. The complainants challenged the changes to the electoral boundaries proposed by the Commission for the electoral district of Acadie-Bathurst.

[18]            The Commissioner determined the complaints to be admissible. The objective of the investigation was to determine the extent to which the Commission had had regard to section 41 of the Official Language Act^[5] when it decided to redraw the boundaries of the electoral district of Acadie-Bathurst.

[19]            The Commissioner concluded that the commitment set out in Part VII of the OLA required that the Commission assess the disadvantages and harmful consequences perceived by the official language minority community, having regard to the consequences of the changes made to the electoral district for the development and vitality of the francophone community.^[6] The Commissioner concluded:

[TRANSLATION] The Commission's report has not persuaded me that it fully examined the impact of its recommendations on the development and vitality of the official language minority community in the electoral district of Acadie-Bathurst, and I cannot conclude from it that the Commission has discharged its responsibilities in that respect under section 41 of the Official Languages Act. ...^[7]

[20]            The Standing Committee on Procedure and House Affairs, which reviewed the Commission's report, also said:

The Committee, therefore, agrees with Mr. Godin's assertion that in this case, leaving the current boundaries alone and accepting a variance of approximately +14% is both allowable and preferable.

The Committee directs the attention of the Boundaries Commission and other readers to its general comments below, which look to a more practicable approach aimed at achieving a long-term solution to an issue which it suspects will re-occur.^[8]

[21]            After taking the objections made by the Committee into consideration, the Commission decided "... to return the Parish of Saumarez and a portion of the Parish of Allardville including Saint-Sauveur into the electoral district of ACADIE-BATHURST. The Parish of Bathurst and a portion of the Parish of Allardville will remain in the electoral district of MIRAMICHI."^[9]

ISSUES

Section 3 of the Canadian Charter of Rights and Freedoms (the Charter)

[22]            Does the Proclamation contravene the Charter?

[23]            If there is a Charter violation, is it safeguarded by section 1 of the Charter?

Judicial Review

[24]            What is the standard of review for a decision of the Commission?

[25]            Does the Proclamation contravene section 15 of the Readjustment Act?

Part VII of the OLA

[26]            Does the Proclamation contravene Part VII of the OLA?

Remedies

[27]            What remedies are available, having regard to the jurisdiction of this Court?

ANALYSIS

Section 3 of the Charter

Does the Proclamation contravene the Charter?

[28]            In Reference re Prov. Electoral Boundaries (Sask.),^[10] the Supreme Court of Canada examined the principles set out in section 3 of the Charter.^[11] McLachlin J. (as she then was), writing for the majority, concluded that the purpose of the right to vote enshrined in section 3 of the Charter was the right to effective representation, and not merely parity of voting power.^[12]

[29]            In the opinion of McLachlin J., the conditions of effective representation are as follows:

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."^[13]

[30]            Accordingly, relative parity of voting power is the first condition of effective representation; but other factors, for example geographic features, history, the interests of the community and representation of minority groups, had to be considered, and could justify deviations from absolute voter parity.

[31]            In Carter, the Supreme Court of Canada also held that in determining whether the legislature has complied with section 3 of the Charter in creating electoral districts, the courts ought not to find that there has been a violation unless "... reasonable persons applying the appropriate principles ... could not have set the electoral boundaries as they exist."^[14]

[32]            The Court held that the reason for this caution is the complexity of the electoral boundary readjustment process. The commissions are required to balance conflicting policies: on the one hand, the policy of voting power parity, which stresses the importance of the individual; and on the other, the principle of community of interest, which stresses the group. Finding a balance between the two is not an exact science, and the courts will therefore respect the choices made by the commissions if their decisions are defensible.

[33]            In this case, the applicants introduced evidence to show that there is a community of interest in Acadie-Bathurst. They filed seven affidavits by residents of the former electoral district of Acadie-Bathurst. All seven attested to the strong linguistic, historic, social and administrative ties that exist in Acadie-Bathurst, and the relative absence of ties between the communities in the former electoral district of Acadie-Bathurst and those in Miramichi. For example, Carmel Raîche, a resident of Allardville, and Ian Oliver, a resident of South Tetagouche, stated in their affidavits that they themselves, like the populations of Allardville and South Tetagouche, go to school, do their shopping, use the hospital and go to recreational centres in the Bathurst region, and not in Miramichi.^[15]

[34]            The applicants also filed an affidavit by an expert witness, Denis Duval. Prof. Duval is a professor of political science. He prepared a study entitled "Rapport d'étude des limites des circonscriptions proposées par la Commission de délimitation des circonscriptions électorales fédérales pour le Nouveau-Brunswick" [report concerning the electoral boundaries proposed by the Federal Electoral Boundaries Commission for New Brunswick] which he presented to the Commission. Prof. Duval concluded in his report that the parishes of Allardville and Bathurst are part of a single community of interest with the other parishes of the former electoral district of Acadie-Bathurst.

[35]            The respondent also filed evidence, to show that there is no community of interest in Acadie-Bathurst. The respondent filed two affidavits by expert witnesses, David Johnson and Pierre-Marcel Desjardins.

[36]            David Johnson, a professor of political science, criticized Prof. Duval's report; he said: "The inherent weakness with Prof. Duval's assessment of community interest, however, is that it is static, essentially an assessment of what has been in the past rather than what might become in the future."^[16]

[37]            Prof. Johnson stated that the readjustment of the electoral boundaries is fair. He explained that even if there is a community of interest in Acadie-Bathurst, with the change to the electoral boundaries new communities of interest may develop within the community in the electoral district of Miramichi.^[17] He also explained that the fears of the residents in Acadie-Bathurst are groundless. He said that the residents who become members of the electoral district of Miramichi will be able to receive services in French because Canada and New Brunswick are both bilingual, and he added that it is of little consequence whether their member of Parliament is able to speak French because, in his words, "[a]ll elected representatives are called upon to represent the interests of all of their constituents regardless of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, and many other social characteristics inclusive of language".^[18]

[38]            Prof. Desjardins also criticized Prof. Duval's report, but for other reasons. Primarily, he noted that Prof. Duval analyzed the entirety of the electoral districts in New Brunswick whose electoral boundaries were readjusted, while Prof. Desjardins analyzed the communities affected by the electoral boundaries readjustment.^[19]

[39]            After analyzing various criteria, Prof. Desjardins concluded:

[TRANSLATION] ... in terms of various socioeconomic characteristics, there is little difference between the situation in the electoral districts of Acadie-Bathurst and Miramichi because those communities share multiple characteristics;

As well, I can conclude that, for the subregions, there are no conclusive trends;^[20]

[40]            The Court prefers the applicants' evidence to the respondent's. First, Prof. Johnson, who testified for the respondent, supported Prof. Duval's results. In his affidavit, he said: "This is not in any way to be read as a critique of Prof. Duval's empirical findings regarding the existence of a francophone community of interest in Acadie-Bathurst."^[21]

[41]            Second, Prof. Johnson's report is problematic. He did not take into consideration the legal principles set out in section 3 of the Charter. He criticized the applicants' argument in which they contend that the readjustment of electoral boundaries would dilute the voice of francophones in the electoral districts and create a strong possibility that the member of Parliament would be unable to represent the interests of francophones; he said: "The core proposition here ... is that any individual is capable of sympathetic reasoning in relation to other individuals. Any person can be sensitive to, concerned about, and capable of responding to the needs of other persons within this society."^[22] Prof. Johnson regarded the applicants' fears as "illogical". [At the hearing, the respondent apologized to the Court and the applicants for the use of the expression "illogical" by Prof. Johnson instead of some other word, but nonetheless, those fears were disregarded by Prof. Johnson.]^[23]

[42]            The Supreme Court of Canada has in fact rejected that way of looking at things. In Carter, the Court said: "... 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."^[24] The Court acknowledged that a minority group's fear that it will not be adequately represented by its member of Parliament were not without basis; the opposite is in fact true, because the reality in a democracy is that an elected representative who is faced with the conflicting interests of the majority and a minority will often have to choose to represent the interests of the majority.

[43]            Another problem is that Prof. Johnson's report contains a lot of hypotheticals. For example, he wrote that even if there is a community of interest in the former electoral district of Acadie-Bathurst, a community of interest will develop in the new electoral district of Miramichi, without explaining either when or how that will happen.^[25] His conclusion is simply speculation.

[44]            The last problem that the Court sees in Prof. Johnson's report is his tendency to exaggerate some points while disregarding the facts that refute his hypothesis. This was particularly evident when he talked about economic community of interest. He concluded that there is a community of interest between the regions of Acadie-Bathurst and Miramichi. He reached that conclusion from testimony given at one of the Commission's hearings.^[26] On the other hand, he failed to consider the fact that all the other presenters, both individuals and mayors or representatives of organizations, testified that there is a community of interest in the former electoral district of Acadie-Bathurst, but not between Acadie-Bathurst and Miramichi. This bias makes his report less persuasive.

[45]            Prof. Desjardins' report does not suffer from those flaws. Nonetheless, the Court prefers Prof. Duval's report to Prof. Desjardins'. The indicators that Prof. Duval used for determining the communities of interest are very detailed.^[27] Prof. Desjardins, on the other hand, used fewer and less varied indicators.^[28] The Court finds that Prof. Duval's report is more thorough than Prof. Desjardins', and the Court therefore accepts Prof. Duval's results.

[46]            The Court also believes that the testimony given by the applicants' witnesses is very important. The region spoke with a united voice. Representatives of associations, mayors from the different towns and the member of Parliament for Acadie-Bathurst filed affidavits and made submissions to the Commission. A petition signed by over 2,000 people was presented to the Commission.

[47]            The people explained that the region is unique. According to one presenter, it has the highest concentration of Acadians in Canada.^[29] In the course of the hearings, a number of presenters talked about the importance of having a strong Acadian voice, and reminded the members of the Commission of the historical wrongs done to the Acadians.^[30] Having regard to the evidence as a whole, the Court finds that there is a community of interest in Acadie-Bathurst.

[48]            The Commission in fact reached the same conclusion. It agreed that there was a community of interest in Acadie-Bathurst, and it was even aware that parity of voting power is not the only consideration in readjusting electoral boundaries. However, it decided that a variance of -21 percent was simply too large, and that despite the existence of a community of interest in Acadie-Bathurst it was necessary to reduce Miramichi's variance from the electoral quota. It therefore transferred the parish of Allardville and part of the parishes of Saumarez and Bathurst to the electoral district of Miramichi.^[31]

[49]            Because the primary consideration in determining whether a population has effective representation is voter parity, and that a commission does not contravene section 3 of the Charter unless "reasonable persons applying the appropriate principles ... could not have set the electoral boundaries as they exist", the Court finds that the Commission did not contravene section 3 of the Charter when it decided to transfer the parishes from Acadie-Bathurst to Miramichi.

[50]            That decision is reasonable, and accordingly the Commission did not contravene section 3 of the Charter.

Section 1 of the Charter

[51]       However, if the Court is in error and the Commission did contravene section 3 of the Charter, the Court does not believe that the decision can be safeguarded by section 1 of the Charter.

[52]            The Supreme Court of Canada stated the test for determining whether a Charter violation is safeguarded by section 1 as follows:

The government first must demonstrate that the objective of the legislation is sufficiently pressing and substantial to warrant violating a Charter right. The objectives must be neither "trivial" nor "discordant with the principles integral to a free and democratic society": Oakes, supra, at p. 138. Once this has been established, the government must then demonstrate that the infringement is proportionate, namely, that the legislation is rationally connected to the objective, that it minimally impairs the Charter right in question, and that the salutary benefits of the legislation outweigh the deleterious effects.^[32]

[53]            Under the test in Oakes,^[33] the Court must weigh the rights of the individual and the needs of society. Evidence regarding the needs of society is therefore needed. The respondent, who has the burden of proof,^[34] offered nothing on this point. Accordingly, it is impossible to do a proper section 1 analysis, and the respondent has failed to show that the violation was justified.

Does the Proclamation contravene section 15 of the Readjustment Act?

Standard of Review

[54]            The respondent contends that the standard of review is the standard of the patently unreasonable decision.

Review mechanism

[55]            The respondent contends that there is no review mechanism provided in the Readjustment Act. [Représentations supplémentaires au sujet des réparations demandées (supplementary submissions regarding the relief sought), document filed by the Attorney General of Canada on May 3, 2004, pages 1 to 16; in that document, the respondent examined several scenarios, should the Court decide otherwise, in order to mitigate the effects of a decision that rejects its argument.]

Relative Expertise of the Decision-Makers

[56]            In addition, the respondent observed that the members of the Commission included a judge and a lawyer, and that all members of the Commission live in New Brunswick. Accordingly, the Commission had a certain degree of expertise, by virtue of its knowledge of the communities of identity and interest in its province, and it had the ability to dispose of issues that fell within the fields of its members' interests and occupations. The relative expertise of the decision-makers could be a factor in favour of this Court showing greater deference.

Purpose of the Readjustment Act

[57]            The respondent submits that one purpose of the Readjustment Act is to give the commissions, and only the commissions, the power to readjust electoral boundaries. To determine how to readjust electoral boundaries, the Commission must consider the various factors set out, to ensure that the purposes of the Readjustment Act are fulfilled. Accordingly, under the Readjustment Act, the Commission must also weigh the interests of different groups. Parliament has also given the Commission very broad discretion, which would seem to indicate that this Court should show considerable deference.

Nature of the Problem

[58]            The respondent also submits that the issue that was to be disposed of by the Commission was essentially a factual one, another reason why the Court should show deference.

[59]            Based on this analysis, the respondent submits that the standard of review that applies to the Commission's final report is the standard of the patently unreasonable decision.

[60]            The specialization of the members of the commissions is not, in itself, in dispute. Rather, it is their interpretation of the situation which is at issue in applying the Readjustment Act.

The Anatomy of the Readjustment Act

[61]            The Readjustment Act gave the Commission broad discretion. Section 15 indicates the importance of voter parity, but it also directs the commissions to consider the other factors without diminishing them, and provides the commissions with guidelines for determining what constitutes a reasonable variance.

[62]            The Commission does have discretion. The Readjustment Act does not define "community of interest", and uses relatively broad wording. The Commission may therefore depart from the principle of voter parity if certain factors are present. The Court believes that the respondent is not wrong to say that the Commission is given a certain degree of discretion, but it exaggerates the degree of discretion it is given. This also lessens the degree of deference that the Court must show.

The Nature of the Issue

[63]            The issue is a question of mixed fact and law, in that it involves the application of section 15 of the Readjustment Act to a fact situation. In order to determine what degree of deference is owed to the decision-maker, the Supreme Court of Canada said: "... with respect to questions of mixed fact and law, this factor will call for more deference if the question is fact-intensive, and less deference if it is law-intensive."^[35]

[64]            In this case, the question is more a legal one, because it involves the interpretation of section 15 of the Readjustment Act, and this lessens the deference that must be shown by the Court.

[65]            The Court believes that the standard of review is the standard of the reasonable decision.

Does the Proclamation Contravene Section 15 of the Readjustment Act?

[66]            In its report, the Commission demonstrated that it was aware of the purpose of the Readjustment Act, but this does not prove that it applied the Act correctly when it readjusted the boundaries of the electoral districts of Acadie-Bathurst and Miramichi.

[67]            The Commission explained, at a hearing, why it proposed to transfer the parishes from the electoral district of Acadie-Bathurst to the electoral district of Miramichi. It said:

[TRANSLATION] The first reason [for transferring the parishes to the electoral district of Miramichi] is that there is already a large variance. The variance from the provincial quota is already quite large here in Acadie-Bathurst. A member of Parliament in New Brunswick, each member of Parliament in New Brunswick should ideally represent 73,000 people, in round numbers, 72,950 but we will speak in round numbers, 73,000 people, while the member of Parliament here in Acadie-Bathurst represents 83,000. So there is a large variance here, a 14% variance, which is a large variance. We know that we can go as high as 25 [percent], we know this, but ideally, we should not go above 10, and even, we tried to redraw the map so as not to go above 5, because in Quebec, for example, the neighbouring province, they were able, there, to keep the variances to no more than 3%, so, to comply with the first and most important of the principles for redistributing the electoral map across Canada. So we were a little embarrassed to see two neighbouring electoral districts with a 35,000 difference, with one that has a 10,000 surplus that could really be easily transferred into the one that has only 57,000, while still maintaining the communities of interest in terms of language and in terms of occupation. Because Miramichi is a bilingual electoral district, as I just mentioned, it is about 30% francophone, about 70% anglophone. And I will tell you what we thought, I will tell you what we discussed, and what we thought, so that we can get your reaction, just that, but we said to ourselves when we have an electoral district that is bilingual, and we have three in New Brunswick, we have only three. We have five with an overwhelming English majority and two with an overwhelming francophone majority, and we have three that are truly bilingual. In a bilingual electoral district, do you not think that it is important for the minority to be as large as possible, to be as comfortable as possible? For example, if you have a minority that is two or three percent in an electoral district, it is a little hard on that minority, they do not have a lot of power. But if you have a minority of 30% or 35% in a bilingual electoral district, and that can be increased by another two or three percent, that minority is going to feel more and more comfortable, it will feel better and better, and it will acquire more and more power, and eventually, if Miramichi continues to be more and more bilingual, then the population will necessarily want to elect a bilingual representative. ...^[36]

[68]            There are two points of note to be taken from this passage. We see that the Commission undertook to keep the variance between electoral districts under ten percent. As well, the Commission thought either that there is already a strong enough Acadian minority in Miramichi to be able to give the parishes to be transferred from Acadie-Bathurst to Miramichi a voice, or that by adding Acadian communities to Miramichi there will be a strong enough minority that it will be able to insist that a member of Parliament represent its interests.

[69]            The Court finds that the Commission has not interpreted the Readjustment Act in the spirit of the Act. First, while the Commission was entitled to decide that, as a general principle, the variance between electoral districts should not be more than ten percent, it did not consider whether there were electoral districts where, having regard to the community of interest in the region or its geographic features, it would be desirable to depart from the general principle that the variance should not be more than ten percent.

[70]            Section 15 of the Readjustment Act reads as follows:

[71]            As the Commission observed, the goal of the Readjustment Act is voter parity; however, it does not demand absolute voter parity. Under paragraphs 15(1)(a) and (b) of the Readjustment Act, the commissions are required to consider a reasonable departure from the electoral quota to recognize the community of interest and community of identity in or the historical pattern of an electoral district in a province, and to maintain a manageable geographic size for districts in sparsely populated, rural or northern regions of the province.

[72]            On the other hand, subsection 15(2) of the Readjustment Act provides that a commission may consider a more significant departure if it is justified by a community of interest or geographic features. The Readjustment Act does not permit a variance of more than twenty-five percent, except in extraordinary circumstances, but the Readjustment Act is clear that a variance of up to twenty-five percent is acceptable in individual cases.

[73]            In this case, the Commission applied subsection 15(1) when it recognized that there are many rural areas in New Brunswick, and that a variance of ten percent from the electoral quota was therefore reasonable.

[74]            However, the evidence shows that it declined to consider whether subsection 15(2) applied in the electoral district of Acadie-Bathurst. In addition to the comments made at the hearings, the report submitted to the Standing Committee on Procedure and House Affairs suggested that the Commission would not in any event let an electoral district depart from the quota by more than twenty-five percent. The two reasons given for transferring the parishes of Saumarez, Allardville and Bathurst to the electoral district of Miramichi are, first, that the variance between Acadie-Bathurst and Miramichi was too large, and second, that the variance between Acadie-Bathurst and Miramichi and the electoral quota was too large. The numbers were the one and only reason for adding the parishes to Miramichi.

[75]            The evidence is not irrefutable. The passage quoted earlier may be read as indicating that the Commission was prepared to go above a ten percent variance if it were necessary. Ultimately, six electoral districts out of ten have a variance of more than ten percent.

[76]            A statement made by the Commission offers some clarification regarding its position. At a hearing, a member of the Commission said: " ...We're trying to stick to 10% on a margin to meet them. Nothing is written in stone but that's what we've adopted. Certainly 25% we don't feel is appropriate for the province of New Brunswick with our global population."^[37] In extreme cases, the Commission was prepared to allow a variance of fourteen percent, but it did not think that it would be reasonable to allow a variance of twenty-five percent, even where there were communities of interest.

[77]            Second, the Commission did not have regard to the material before it when it decided that the parishes of Allardville, Saumarez and Bathurst would have effective representation when they were part of the electoral district of Miramichi.

[78]            The Commission did not explain very clearly how it reached the conclusion that there was a community of interest between the parishes in Acadie-Bathurst and Miramichi. In the statement quoted above, the Commission said that either the Acadian minority in Miramichi already has effective representation or adding the Acadian communities to Miramichi will result in effective representation for the minority. Those assertions are both problematic.

[79]            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.

[80]            The conclusion that adding francophone communities to the Acadian community in Miramichi would give that community more weight is just as problematic. The problem is apparent when we compare the percentages of francophones and anglophones before and after the transfer of the parishes of Saumarez, Allardville and Bathurst. In 2001, before the parishes were transferred, anglophones made up sixty-three percent and francophones thirty-four percent.^[41] After the transfer, it was predicted, the anglophone proportion would rise to sixty-four percent while the francophone proportion would be about thirty-three percent.^[42] The Acadian percentage remained unchanged with the addition of the parishes, as did their power.

[81]            Last, and realizing just how difficult the Commission's task was, the Court believes that forming communities of interest and increasing a community's political power depend on a large number of factors, and they do not occur simply because a community achieves a critical mass. Adding other members of the community to the electoral district, in the hope that effective representation will follow, is something of a gamble. That position is not consistent with the spirit of the Readjustment Act.

[82]            Accordingly, the Commission did not comply with section 15 of the Readjustment Act. It complied with paragraphs 15(1)(a) and (b) when it found that a variance of ten percent from the electoral quota was reasonable in New Brunswick, but it did not proceed to the second step, that is, it did not consider whether it was desirable to allow a variance provided for in the Act in order to preserve a community of interest in an electoral district. The Commission's extrapolation is in error when it concludes that there was a community of interest or could be a community of interest in Miramichi. For those reasons, the decision is set aside.

Does the Proclamation Contravene Section 41 of the OLA?

[83]            The respondent submits that section 41 does not apply to the final report of the Commission because the commitment set out in Part VII of the OLA relates solely to the "Government of Canada". Because the federal electoral boundaries commissions are not part of the Government of Canada, they cannot be bound by the government commitment set out in Part VII of the OLA.

[84]            The Commissioner, however, submits that section 42 of the OLA clearly and expressly commits federal institutions to implementing the commitment made by the federal government in section 41.

[85]            The Court agrees with the Commissioner. As the Commissioner observed, the role of the Minister of Heritage is to "encourage" and "promote" coordination with other ministers and institutions to develop and promote the use of English and French. However, it is the federal institutions that must put the commitment into practice, because the OLA expressly applies to both government institutions and the Government of Canada.

[86]            The respondent also argued that the Readjustment Act is the specific legislation that applies to the process of readjusting the boundaries of electoral districts, and not the OLA, which is a law of general application.

[87]            The Commissioner contends that the issue is not which of two laws takes precedence, since there is no inconsistency between the obligations imposed by the Readjustment Act and the obligations imposed by the OLA. The Commissioner observed that the respondent made this point in his factum.

[88]            The Court also agrees with that argument. The Readjustment Act imposes an obligation on the Commission to consider the community of interest, including a community of interest that is defined by the French language, and the OLA requires that government institutions enhance "the vitality of the ... French linguistic minority communities in Canada". In fact, the two Acts have similar goals.^[43]

[89]            The respondent submits that Part VII of the OLA is declaratory rather than executory and that neither the Government of Canada nor federal institutions are obliged always to give effect to Part VII of the OLA.

[90]            On this point, the Court agrees with the respondent. The Court does not believe that the terminology used in section 41 is ambiguous. It is clear, as the Commissioner submits, that the Minister of Canadian Heritage should encourage government institutions to support the development of francophone minority communities. However, in the opinion of the Court, the OLA is to be interpreted in such a way that the legislation does not oblige government institutions to do this. If we refer to the English version, section 42 uses the word "shall" in reference to the government's obligations, but does not use that word to describe the role of government institutions.

[91]            Some other parts of the OLA use imperative language to describe the role of government institutions. The difference between the terminology used in Part VII and the terminology found in the other parts suggests that section 42 is declaratory, and not enforceable.

[92]            Last, the respondent contends that Part X of the OLA, which describes the court remedies available, does not provide for any remedy in an action under Part VII because Part X does not entitle an applicant to seek judicial review of a decision made under Part VII.

[93]            However, the Commissioner submits that the Court has jurisdiction to intervene in respect of decisions made under Part VII of the OLA.

[94]            The two parties cited different case law in support of their arguments.^[44] In fact, the Court of Appeal has made two conflicting rulings on this point. As the Commissioner contends, the Court concluded in Devinat that it has the authority to review a decision involving parts of the OLA that do not fall under Part X, pursuant to the general jurisdiction assigned to the Court to review decisions of courts and tribunals.^[45]

[95]            On the other hand, the Court of Appeal has also concluded, in Ayangma, that Part X of the OLA denies the applicant judicial review in respect of matters involving the parts of the OLA that are not specified in Part X.^[46]

[96]            The Court is of the opinion that the decision of the Court of Appeal in Devinat applies. In Devinat, the Court quoted Holt C.J., as follows:

If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing is prescribed, that alone is sufficient to give jurisdiction to the King's Courts of justice. In order to oust jurisdiction, it is necessary, in the absence of a special law excluding it altogether, to plead that jurisdiction exists in some other Court.^[47]

[97]            Because that principle is so fundamental to the law, the Court will not interpret the law so as to grant a right but deny a remedy, unless the law expressly precludes that remedy.

[98]            In the case of the OLA, the law does not expressly preclude a remedy. Accordingly, under section 18.1 of the Federal Courts Act,^[48] the Court has jurisdiction to hear the application for judicial review.

Standard of Review

[99]            The standard of review that applies to the decision of the Commission under Part VII of the OLA is similar to the standard of review that applies to decisions of the Commission under the Readjustment Act. Nonetheless, there are a few important differences.

[100]        On the other hand, the Commission has discretion to decide whether it is appropriate to apply Part VII of the OLA.

[101]        Given that Part VII is declaratory, the Court must show considerable deference to the Commission.

[102]        The issue in this case is a question of fact. Having regard to the factors, the standard of review is the standard of the patently unreasonable decision.

[103]        The finding made by the Court, that the Commission contravened the Readjustment Act, applies here as well. The Commission decided that, by transferring the parishes from the electoral district of Acadie-Bathurst to the electoral district of Miramichi, it was respecting the community of interest in the parishes. That decision was erroneous, however, because it was made without regard for the evidence before the Commission. As well, saying that the addition of Acadians to the electoral district of Miramichi was going to increase the percentage of Acadians, and would then increase the Acadian community's political power, was patently unreasonable, because the percentage of francophones was not going to rise by adding the parishes of Saumarez, Allardville and Bathurst to the electoral district of Miramichi.

[104]        The Court is of the opinion that the Commission tried to apply Part VII of the OLA in a manner in keeping with the intention of Parliament, but that it failed to do so because its findings of fact were erroneous. Accordingly, the Court sets aside the decision of the Commission.

Remedies

What remedies are available, having regard to the jurisdiction of this Court?

[105]        The applicants are asking that the Court order:

(a) That a writ of certiorari be issued setting aside and quashing the Proclamation as it relates to the transfer of the following areas of the federal electoral district of Acadie-Bathurst to the federal electoral district of Miramichi, in New Brunswick:

     That part of the County of Gloucester comprised of:

(i) that part of the Parish of Allardville lying westerly of a line described as follows: commencing at the most northwesterly corner of the Parish of Saumarez; thence northwesterly in a straight line to the most southwesterly corner of the Parish of New Bandon;

(ii) that part of the Parish of Bathurst lying westerly of a line described as follows: commencing at the intersection of the northerly limit of the Parish of Allardville with Highway No. 8; thence northerly along said highway to the southerly limit of the City of Bathurst.

[106]        The Court accepts the respondent's argument that the Court does not have the necessary jurisdiction to restore the electoral district of Acadie-Bathurst to what it was before the Commission was established. The Court may, however, set aside the decision of the Commission; but it may not replace that decision with its own.

[107]        The respondent also submits that the Court may not set aside only one part of the Proclamation, the part concerning the electoral district of Acadie-Bathurst. The Court agrees with that argument. The Court has jurisdiction to set aside only the parts that are invalidated, when it follows the legal principle requiring that the valid portion that it seeks to uphold be completely severable from the invalid portion, and that its validity be undeniable.

[108]        The Court accepts the respondent's argument that if the Proclamation were set aside the order that preceded it could not be put back into force. If it is not appropriate for the Court to restore an electoral district to what it was before the Commission was established, it would be even less appropriate for the Court to usurp the role of Parliament by dictating all of the electoral boundaries of a province.

[109]        The last order sought by the applicants is that the Proclamation be set aside, but they do not challenge the decision of the Governor in Council to make the Proclamation; rather, they challenge the decision of the Commission, which affects them as parties. Consequently, the Court, based on all of the reasoning above, is setting aside the decision of the Commission.

CONCLUSION

[110]        The Electoral Boundaries Readjustment Act takes other factors into account, including the community of interests, the identity of the community, and the historical pattern of an electoral district in the province, as well as its geographic aspects. All of this is crucial to ensure that the essence of the legislation is reflected in its overall application, so that its very spirit is apparent and that its interpretation gives it concrete expression in a manner that takes into consideration more than numbers. All of this to ensure that the spirit of the composition of the population is understood in regard to its future which is based on its past.

[111]        For all these reasons, the Court but grants the application for judicial review only, and, out of deference to the authority in question, it is for that authority, and that authority alone, to decide the means by which to give effect to the relief granted by the Court.

[112]        In view of the circumstances, the Court temporarily suspends this declaration of invalidity for a period of one year, to give the authority in question an opportunity to choose the manner in which to give effect to the relief granted by the Court.^[49]

                                                                       ORDER

THE COURT ORDERS that:

1.         The relief granted by the Court be put into effect within a maximum of one year;

2.         Having regard to all of the particular circumstances, including the importance of the issue and the depth of the analysis of the subject as presented by both parties, no costs are awarded.

                                                                                                                             "Michel M.J. Shore"            

                                                                                                                                                   Judge                         

Certified true translation

Suzanne M. Gauthier, C Tr, LLL

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET :                                          T-1730-03

STYLE OF CAUSE:               CARMEL RAÎCHE, IAN OLIVER, L'ASSOCIATION DES MUNICIPALITÉS DU NOUVEAU-BRUNSWICK INC.,

BATHURST REGIONAL AIRPORT COMMISSION INC., GREATER BATHURST CHAMBER OF COMMERCE and CITY OF BATHURST

                                                                           and

THE ATTORNEY GENERAL OF CANADA

and

THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA

PLACE OF HEARING:                     Fredericton, New Brunswick

DATES OF HEARING:                     May 3 and 4, 2004

REASONS FOR ORDER

AND ORDER:                                    Mr. Justice M. Shore

DATE OF REASONS FOR ORDER

AND ORDER:                                    May 11, 2004

APPEARANCES:

Michel Doucet                                                   FOR THE APPLICANTS

Rosemarie Millar                                                           FOR THE RESPONDENT

Pascale Giguère                                                             FOR THE INTERVENER

SOLICITORS OF RECORD:

Patterson, Palmer                                                          FOR THE APPLICANTS

Moncton, New Brunswick

Department of Justice Canada                            FOR THE RESPONDENT

Ottawa, Ontario

Office of the Commissioner

of Official Languages                                                     FOR THE INTERVENER

Ottawa, Ontario