The Right to Effective Representation: Nova Scotia’s Exceptional Constituencies Model and the Chéticamp Region

This article explores the current debate in Nova Scotia over whether to create a so-called protected, or exceptional, provincial constituency for the Acadian population of Chéticamp. In addition to having been a controversial issue before the most recent provincial Electoral Boundaries Commission, the matter is currently before the Supreme Court of Nova Scotia. The author contends that this matter raises fundamental questions about both the normative and institutional requirements of the right to effective representation as guaranteed by the Canadian Charter of Rights and Freedoms. The article addresses these issues by analyzing the model Nova Scotia has implemented to ensure effective representation of Acadian and African Nova Scotians. The author concludes the analysis by explaining why he believes a protected constituency for the Acadian region of Chéticamp is consistent with Nova Scotia’s model of effective representation.

Rémi Léger

Rémi Léger is a political science professor and director of the French cohort program in public and international affairs at Simon Fraser University.

Creating protected constituencies

In 1991, the Supreme Court of Canada clarified the meaning and scope of section 3 of the Canadian Charter of Rights and Freedoms. This section states that “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.” In Reference re Prov. Electoral Boundaries (Sask.), commonly known as the Carter reference, the Court ruled that the right to vote conferred by this section is a right to effective representation. Judge McLachlin, writing for the majority, summarized the decision 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.’”1

What is the right to effective representation? The Carter reference states that section 3 guarantees a right to relative, rather than absolute, electoral parity. “The section,” the Court stated clearly, “does not guarantee equality of voting power.”2 Moreover, it clarified that “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.”3 The Court went on to list factors that may justify a shift away from relative electoral parity. These factors include “geography, community history, community interests and minority representation.”4 In summary, effective representation strives for relative electoral parity, while allowing for derogations under certain conditions.

In 1992, Nova Scotia created, for the first time in its history, an independent Commission tasked to put forward a proposal to redraw provincial electoral boundaries. In the wake of Carter, effective representation guided the Commission’s terms of reference. On the one hand, it was required to create a designated seat for the province’s Mi’kmaq population. However, according to the Commission’s Final Report, because of “a widespread sentiment [among the Mi’kmaq] that more time was needed to discuss and resolve issues and achieve consensus,”5 this aspect of the terms of reference was not carried out.

On the other hand, the Electoral Boundaries Commission had a mandate to ensure effective representation of Acadian and African Nova Scotians. In this case, the Commission’s terms of reference were not to create designated seats that would guarantee representation for these populations in the legislative assembly, but rather to create constituencies conducive to their representation. Consequently, the proposed electoral map included three protected constituencies for Acadian Nova Scotians (Argyle, Clare and Richmond) and one protected constituency for African Nova Scotians (Preston).

These protected constituencies – or “exceptional” constituencies, as the latest Electoral Boundaries Commission puts it – are not designated seats. The unique feature of these protected constituencies is that they break with the rule that a constituency’s population cannot exceed 25 per cent of the average population of all constituencies in the province. This feature is intended to promote effective representation of Acadian and African Nova Scotians. The electoral boundaries of protected constituencies are drawn to ensure that Acadian and African Nova Scotians represent a meaningful share of the electorate.

The Argyle, Clare, Richmond, and Preston protected constituencies were retained when the electoral map was redrawn in 2002. The provincial Electoral Boundaries Commission’s terms of reference at the time stated that all electoral districts had to respect a variance of plus or minus 25 per cent from the electoral quota, except in “extraordinary circumstances.” These extraordinary circumstances were defined as “the desire to promote minority representation by Nova Scotia’s Acadian and Black communities.”6 In its Final Report, the Commission recommended maintaining the four protected constituencies, noting that these constituencies had prompted comments during the public consultations and suggested reassessing the model when the map was next redrawn.7

Abolishing the protected constituencies

In 2012, Nova Scotia abolished the four protected, or exceptional, constituencies. The provincial Electoral Boundaries Commission’s terms of reference stated that “no constituency may deviate by a variance greater or less than 25 per cent from the average number of electors per constituency.”8 This requirement sealed the fate of the protected constituencies from the outset, as their population was below the allowable variance.

The Commission initially interpreted its terms of reference broadly, tabling an Interim Report that proposed keeping the four protected constituencies. In this Report, the Commission explained that a narrow interpretation of its terms of reference could raise “significant social, cultural, and political issues,”9 as it would be forced to abolish protected constituencies, thereby limiting the effective representation of Acadian and African Nova Scotians.

However, the province’s Attorney General ruled that the Interim Report was unlawful, as the commissioners had not, in his view, complied with their terms of reference.10 The Commission ultimately decided to recommend an electoral map abolishing the four protected constituencies. The only Acadian member of the commission argued, in a dissenting opinion, that the Commission should have gone against its terms of reference. As a result, the protected constituencies were merged into larger ones, considerably reducing the electoral weight of Acadian and African Nova Scotians. Between the old Argyle constituency and the new Argyle-Barrington constituency, the percentage of francophone electors fell from 47.4 per cent to 25.1 per cent; between Clare and Clare-Digby, the percentage fell from 65.5 per cent to 32.4 per cent; and between Richmond and Cape Breton-Richmond, the percentage fell from 24.3 per cent to 17.8 per cent.11

Nova Scotia elections in 2013 and 2017 were held using this new electoral map.

Restoring protected constituencies

The Fédération acadienne de la Nouvelle-Écosse (FANE), an organization promoting the interests and defending the rights of Acadian Nova Scotians, immediately voiced its opposition to the new electoral map. In 2014, the province referred the issue of protected constituencies to the Nova Scotia Court of Appeal.12 In its reference filed in early 2017, the court ruled that the Attorney General had “violated the precepts of s. 3 of the Charter” by preventing the Commission from “expressing its authentic view of effective representation.”13

In 2017, the Nova Scotia Government, in response to the reference, set up a Commission to study the effective representation of Acadian and African Nova Scotian electors. The FANE harshly criticized the decision, arguing that the province should instead set up an electoral boundaries commission to propose an electoral map that respects section 3 of the Canadian Charter of Rights and Freedoms.14

In its Final Report, issued in early 2018, the Commission made a number of recommendations but did not take a position on restoring protected electoral districts, stating that “populations have changed since 2002,” and that it respects the independence of the future provincial Electoral Boundaries Commissions.15 However, the Commission did recommend that provincial law guarantee the independence of boundary commissions and authorize the creation of exceptional constituencies.

A few months later, the province established a new Electoral Boundaries Commission. Its Interim Report, released in late 2018, proposed four electoral distribution options, three of which included restoring protected electoral districts, including two that would have ensured effective representation of the Acadian population of Chéticamp. Ultimately, the Commission recommended restoring the protected constituencies of Argyle, Clare, Richmond, and Preston on the grounds of effective representation of Acadian and African Nova Scotians. It also proposed keeping Chéticamp in the Inverness constituency. However, the Final Report includes a letter of dissent signed by four of the nine commissioners who wanted to guarantee effective representation of this fourth Acadian region.16

This new map was in effect for the 2021 provincial election.

Creating a protected constituency for the Acadian region of Chéticamp

In June 2021, the FANE filed a notice of motion with the Supreme Court of Nova Scotia seeking an exceptional constituency for the Acadian region of Chéticamp.17 Chéticamp is one of four historical Acadian regions in Nova Scotia, or as Sally Ross and Alphonse Deveau put it, the four Acadian “homelands” in the province,18 or “historical anchor communities,” as the most recent provincial Electoral Boundaries Commission calls them.19 The other Acadian historical regions are Argyle, Clare and Richmond, each already with an exceptional constituency.

In Nova Scotia, the Acadian regions are spread across the province, not only far from each other but also far from the legislative assembly, for historical reasons. The history of the Acadian Expulsion is well known, but less is known about their return to Nova Scotia, especially about the deliberate policies designed to scatter them across the territory. The letter formally authorizing their return, signed by the Minister of Colonies in London in 1764, required “that great care is taken to disperse them in small numbers that it may not lie in their power to disturb and annoy that Government.”20 As a result, Nova Scotia’s Acadians are presently anchored in four historical regions, in addition to the presence of a more recent Acadian and francophone community in the Halifax region.

The claim for a protected constituency for the Chéticamp region is not new. Since the early 1990s, the FANE advocated for it in public consultations held by various commissions tasked with reviewing the province’s electoral map. In the wake of the Provincial Court of Appeal’s reference in 2017, the Final Report of the Effective Representation Study Commission in 2018, and dissension in the latest Electoral Boundaries Commission, the Chéticamp case raises fundamental questions about the interpretation of the right to effective representation.

I would suggest that effective representation is necessarily contextual; it must account for factors that vary from province to province or territory to territory. In line with this interpretation, many Canadian provinces developed normative and institutional standards based on their own history, geography and ethnocultural particularities. Nova Scotia has designed a model based on protected or, exceptional, constituencies for historical minorities, while other provinces have implemented other provisions.

For example, the Ontario government adopted specialprovisionsforthenorthernpartoftheprovince.21 Alberta legislation allows up to four electoral districts to deviate by up to 50 per cent from the electoral quota under certain conditions.22 Newfoundland and Labrador allows two constituencies on the island to deviate by more than 25 per cent from the electoral quota, in addition to guaranteeing four constituencies for Labrador, including special provisions for communities north of Lake Melville.23

These examples show how important context is in institutionalizing the right to effective representation in Canada. In Carter, the Court stressed the importance of relative electoral parity while acknowledging that certain factors may need to be considered to ensure effective representation. The legislation passed by several provinces shows that factors such as history, geography and “communities of interest”24 differ from one province to another.

Returning to the situation in Nova Scotia, it is my contention that the province must ensure the effective representation of the Acadian population of Chéticamp, in a manner that is equivalent to the Acadian populations of Argyle, Clare and Richmond. The reason is simple: creating protected constituencies for three of the four Acadian regions is unfair to the excluded region. Nova Scotia made the decision to ensure effective representation of Acadian and African Nova Scotians by creating protected, or exceptional, constituencies; it cannot continue to exclude one of the four Acadian regions from its model.

The latest provincial Electoral Boundaries Commission examined the effective representation of the Acadian population in the Chéticamp region, proposing two options to this end.25 The first option was to designate the Inverness constituency as a dual- member riding, meaning a single constituency with two MLAs. In this scenario, the Acadian electorate would have had the option of registering on the general electoral list and voting for the MLA for the geographic riding, or the Acadian electoral list, which would have elected an Acadian MLA. The second option was to create a virtually all-Acadian constituency whose electorate would deviate by about 80% from the provincial average.

However, I would suggest that the Commission did not consider the most obvious option – creating an electoral district where the Acadian population represents a significant percentage of the electorate. The Nova Scotia model does not guarantee that Acadian or African Nova Scotian MLAs are elected. Rather, protected, or exceptional, constituencies are designed to improve these populations’ chances of electing one of their own, and to expand their influence over the selection of candidates. Both the dual-member constituency and an exceptionally small constituency would have effectively guaranteed an Acadian MLA for Chéticamp,26 which does not fit the Nova Scotia model as it was developed.

In summary, the Acadian population of Chéticamp should be represented by a constituency where they, like the Acadian populations of Argyle, Clare, and Richmond, make up a significant proportion of the electorate.

Conclusion

The current debates in Nova Scotia over the right to effective representation, including whether to create a protected constituency for the Acadian region of Chéticamp, raise fundamental questions about the interpretation of this right and its institutionalization. I have argued that effective representation, by definition, necessitates taking contextual factors into account, and hence its interpretation and institutionalization can vary depending on context. As for Nova Scotia, it is clear that the province has developed a unique model of effective representation, and it is also clear that the Acadian population of Chéticamp must be treated in the same way as the Acadian populations of Argyle, Clare and Richmond. Finally, this paper is also a call to further explore the institutional frameworks and standards developed by provinces and territories to better understand how the right to effective representation has been institutionalized and its implications for Canadian democracy.

Notes

Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158, p. 183.

Ibid., p. 160.
Ibid., p. 184.
Judge McLachlin clarified that the list of factors that may justify a derogation from relative electoral parity is “not closed.” (Ibid., p. 184).
Nova Scotia Provincial Electoral Boundaries Commission, Effective Political Representation in Nova Scotia: The 1992 Report of the Provincial Electoral Boundaries Commission, Halifax, 1992, p. 146.
Nova Scotia Provincial Electoral Boundaries Commission, Just Boundaries: Recommendations for Effective Representation for the People of Nova Scotia. The Final Report of the Nova Scotia Provincial Electoral Boundaries Commission, Halifax, 2002, p. 5.
Ibid., p. 37.
Nova Scotia Provincial Electoral Boundaries Commission, Interim Report, Halifax, 2012, p. 2.
Ibid., p. 3.
In a letter sent to the Chair of the Commission, the province’s Attorney General wrote: “I have been advised by the Chief Legislative Counsel of the House of Assembly that the terms of reference are legally binding upon the Commission, and that the interim report is therefore null and void.”(Ross Landry, Attorney General and Minister of Justice, Letter to Teresa MacNeil, Chair of the Electoral Boundaries Commission, June 14, 2012.)
Commission on Effective Electoral Representation of Acadians and African Nova Scotians, Representation: Toward More Effective Representation for Acadian and African Nova Scotians, Halifax, 2018, p. 42.
Province of Nova Scotia, Court Opinion Sought on Electoral Boundaries Legislation, News Release, October 3, 2014.
Reference re the Final Report of the Electoral Boundaries Commission, [2017] NSCA 10, p. 57.
Fédération acadienne de la Nouvelle-Écosse, 2017, “La Fédération acadienne réagit à l’annonce de la création d’une Commission sur la représentation effective,” Dartmouth, April 28, 2017. https://www. acadiene.ca/2017/04/28/la-federation-acadienne-reagit- a-lannonce-de-la-creation-dune-commission-sur-la- representation-effective/.
Supra note 11, p. 7.
Nova Scotia Provincial Electoral Boundaries Commission, Balancing Effective Representation with Voter Parity, Final Report, Halifax, 2019, pp. 46-53.
The hearings were heard by the Nova Scotia Supreme Court on Monday, October 23, 2023. Note that the author of the text prepared an expert report for the Court on this matter.
Sally Ross and Alphonse Deveau, The Acadians of Nova Scotia: Past and Present, Halifax, Nimbus Publishing, 1992.
Supra note 16.
An excerpt from the letter is quoted in Sally Ross and Alphonse Deveau, The Acadians of Nova Scotia: Past and Present, Halifax, Nimbus Publishing, 1992, p. 74. The letter requests “that great care is taken to disperse them in small numbers that it may not lie in their power to disturb and annoy that Government.”
In addition to Ontario leaving the electoral boundaries the same in the north in 2005 and 2015 to ensure that no electoral district would be abolished, the province, after filing the Final Report of the Electoral Boundaries Commission for the Far North, created two new constituencies in the Far North to ensure effective representation of Indigenous peoples and francophones.
Electoral Boundaries Commission Act, RSA 2000, c E-3, s 15.
Electoral Boundaries Act, RSNL 1990, c E-4, s 15.
In 2004, the Federal Court, in the Raîche case, reiterated how important it is for an electoral boundaries commission to factor in communities of interest (Raîche v. Canada (Attorney General), [2004] 1 F.C.R. 93).
Nova Scotia Provincial Electoral Boundaries Commission, Striking a Balance Between Effective Representation and Voter Parity, Interim Report, Halifax, 2018, pp. 30-45.
For dual-member ridings, the Commission agrees that “the possibility of electing an Acadian MLA is not just increased, it is guaranteed.” For the exceptionally small riding, it would not, by definition, have guaranteed an Acadian MLA, but since the vast majority of the electorate would have been Acadian, we can reasonably assume that the political parties would have fielded an Acadian candidate.