Voter Parity and the Quest for Effective Representation in the Yukon

Article 8 / 11 , Vol. 47 No. 1 (Spring)
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Voter Parity and the Quest for Effective Representation in the Yukon

In 2018, a bill attempting to establish new electoral boundaries in the Yukon following the recommendations of an electoral district boundary commission was defeated at second reading. As a result, the electoral boundaries in the territory remain the same as the ones established in 2008 despite population changes which have created significant variance within some of these districts. Legislation to establish boundaries recommended by a newly created electoral district boundaries commission will need to pass by spring 2025 if they are to be in place in time for the next general election (scheduled for November 3, 2025). In this article, the author describes the history of electoral district boundary commissions in the territory since the advent of partisan politics, explains why the recommendations in 2018 were not accepted, and outlines what he believes to be the two primary considerations the new commission must reconcile: providing fair and effective representation for rural communities and ensuring voter parity for Whitehorse area districts.

Floyd McCormick

Floyd McCormick is a retired former Clerk of the Yukon Legislative Assembly.

Introduction

On October 26, 2023, the Commissioner of the Yukon granted assent to Bill No. 29, Act to Amend the Elections Act (2023). Pursuant to the amendments enacted on that day, an electoral district boundaries commission was established on December 14, 2023.1 If the Yukon is to have new electoral district boundaries for its next general election (scheduled for November 3, 2025), the legislation to establish those boundaries will have to be in place by the spring of 2025.

The last time the Yukon Legislative Assembly attempted to establish new electoral district boundaries the enabling legislation – Bill No. 19, Electoral District Boundaries Act – was defeated at second reading, on November 19, 2018. As a result, the electoral district boundaries currently in effect in the Yukon are those established in the Electoral District Boundaries Act that received assent on December 14, 2008.

In addressing the Yukon’s electoral district boundaries, the new commission will have to consider a number of factors, including the principle of equality of voting power (voter parity).2 The focus of this article will be to demonstrate the effect that voter parity has had on the drawing of electoral district boundaries in the Yukon. To do this the article will (1) examine the debate on Bill No. 19 to determine the role voter parity played in the bill’s defeat; (2) place voter parity in the broader context of Yukon electoral district boundaries reviews since 1977; and (3) offer some ideas as to how the new electoral district boundaries commission, and the MLAs, might balance the requirement of voter parity with other important considerations.

The Yukon and its Assembly

At 482,443 square kilometres, the Yukon is the smallest of Canada’s three territories but is larger than Newfoundland and Labrador and New Brunswick combined.3 Statistics Canada estimates the Yukon’s population at 45,148 making it Canada’s most populous territory.4 The Yukon’s population is unevenly distributed. Approximately 79 per cent of Yukoners (35,770) live in or near Whitehorse, the capital city. No other Canadian jurisdiction has such a high concentration of population in one community. The population of Dawson City, the next largest community, is 2,370.5

This imbalance is growing. In August 2023, the Yukon Bureau of Statistics reported that the Yukon’s population increased by 8,598 from June 30, 2013, to June 30, 2023. Almost 88 per cent of that increase (7,528) occurred in the Whitehorse area.6

The Yukon has had a fully elected Council/ Legislative Assembly since 1909. Recognition of political parties in electoral law and the rules of the Legislative Assembly started with the 1978 general election. The Yukon has 19 electoral districts; 10 in Whitehorse, seven rural districts and two “country- residential” districts that include electors who live within, and outside of, Whitehorse. The Yukon’s northernmost community, Old Crow, has its own electoral district, Vuntut Gwitchin. This district has approximately 200 electors, many fewer than any other district, and isn’t included in calculating the territory’s electoral quotient.

Bill No. 19 was introduced during the 34th Legislative Assembly when the Assembly included 11 Liberals, six Yukon Party (conservative) members and two New Democrats. On April 12, 2021, Yukoners elected the 35th Assembly, which includes eight Liberals, eight Yukon Party MLAs and three New Democrats. NDP support for the Liberal minority government is outlined in a confidence and supply agreement.

Voter parity and the Defeat of Bill No. 19

In May 2017, the Yukon established an electoral district boundaries commission chaired by R.S. Veale, Chief Justice of the Supreme Court of the Yukon. Speaker Nils Clarke (Riverdale North, Liberal) tabled the commission’s interim report in the Assembly on November 20, 2017, and the final report on April 19, 2018.7

The government is required to introduce a bill to implement the recommendations of an electoral district boundaries commission.8 Government members are not, however, obliged to support the bill and, in this case, they did not. The bill was defeated by 11 votes to seven. Ten Liberals and one Yukon Party MLA voted against the bill; five Yukon Party MLAs and two New Democrats voted in favour.9

Liberal members gave three reasons for voting against the bill. The first was that implementing the bill would expand the number of electoral districts from 19 to 20. In response to this recommendation, then-premier Sandy Silver (Klondike, Liberal) said, “I have yet to meet a Yukoner who believes this Chamber needs to add another member.”10

The second reason was the commission’s lack of adherence to voter parity. Using elector projections in the commission’s final report, the Liberals noted that by 2026 only nine of the 20 proposed districts would conform to the +/-25 percent variance from the electoral quotient that the Liberals pointed to as the “Canadian standard.” Silver also mentioned that the 2002 and 2008 electoral district boundary commissions proposed only two and four non- compliant districts (respectively). The commission deviated from the voter parity standard – in terms of Whitehorse districts compared to rural districts and between Whitehorse districts – in favour of what it felt was more effective representation. Nonetheless, Silver concluded that, “This proposal seems to take us in the wrong direction with regard to ridings being outside of that 25 percent variance.”11

The third reason for the bill’s defeat was a lack of public consultation on the commission’s final report. This was particularly important, said Silver, because “the proposal that we are considering today differs significantly from the interim report that was presented to the public.”12 The interim report had only proposed minor adjustments to some existing boundaries.

Yukon Party MLA Brad Cathers also voted against the bill. Cathers opposed the elimination of country-residential districts. This, said Cathers, would excise approximately 350 voters from his district (Lake Laberge). Cathers also mentioned the lack of consultation on the final report as a problem since the proposal to eliminate country-residential districts surfaced late in the process when electors in Lake Laberge had little time to respond.13

Then-Official Opposition Leader Stacey Hassard (Pelly-Nisutlin, Yukon Party) spoke in favour of the bill. He wasn’t keen to add another electoral district. However, in referencing “proper representation” he said, “It is important, especially for rural Yukon, to ensure that their voices are heard here in the Assembly.” He also said that all the people he spoke to in Pelly-Nisutlin favoured the proposed changes.14

Addressing the lack of public consultation, then- NDP leader Elizabeth Hanson (Whitehorse Centre) pointed out that the Commission’s tight timelines and the lack of opportunity for public consultation on the final report were conditions set out in the Elections Act. Hanson, and other members who voted for the bill, also argued that the commission had fulfilled its mandate as provided for in the Elections Act. The Assembly should, therefore, support the bill to enact the recommendations of a non-partisan body that had analyzed the issues in detail.15

While members complained about the lack of consultation on the final report, no member suggested referring the final report to a committee when it was tabled in April 2018. Similarly, there was no discussion about referring Bill No. 19 to a committee for public consultation.

The Veale Commission’s deviation from voter parity obviously played a role in the defeat of Bill No. 19. And while some members opposed adding a 20th district on other grounds as well (cost), the commission’s recommendation that the additional district be a rural district contributed to the deviation from the variance. More public consultation might have shown support for the commission’s approach to voter parity which, in turn, might have affected the fate of Bill No. 19. However, whether the proposed boundaries could have withstood a legal challenge is an open question.

Electoral district boundaries in the Yukon: From consensus to dissent

If we place the debate on Bill No. 19 in a larger historical context we can see the effect that voter parity has had on electoral district boundary reviews once it became a required factor for consideration.

In 1977, the Assembly consisted of 12 independent members, five representing Whitehorse and seven representing rural Yukon. An electoral district boundaries commission chaired by Justice H.C.B. Maddison was established that year. Members gave direction to the commission in anticipation of the territory’s political system formally adopting partisan politics and taking on responsible government. The 16 electoral districts that emerged from this process (a debate on providing direction to the Commission, the Commission’s report, the Assembly’s debate on the report and on the subsequent enabling legislation) included the following features:

  • Boundaries were drawn to encourage participation by indigenous persons in territorial elections and indigenous representation in the Assembly;
  • Pursuant to the above point, the remote, indigenous community of Old Crow would have its own electoral district;
  • Whitehorse city limits would be followed in the drawing of electoral district boundaries. Districts would be entirely within, or entirely outside of, Whitehorse; and,
  • Whitehorse would have fewer than half the seats in the Assembly (seven) even though it contained a majority of the Yukon’s population and electors.

There was a high degree of consensus on these points. Consensus did not mean unanimity. Members expressed differing views about the wisdom of partisan politics, the optimum number of electoral districts, and the precise boundaries of certain districts, among other things. Voter parity was addressed but not as it was with regard to Bill No. 19. During debate on the motion to provide direction to the commission, MLA Eleanor Millard (Ogilvie) said, “population is certainly a consideration but…we must really keep in mind the ratio between Whitehorse and the outlying districts…and equal representation from Whitehorse and outside communities would not be fair to the outside communities.”16

Later, in debating the enabling legislation for the new boundaries, Millard was pleased “that the principle of representation by population was virtually ignored to establish Old Crow as its own constituency…”17 No member contradicted these views.

All but one member supported the legislation in spite of their concerns. The member who voted against the legislation did so due to changes to his electoral district.18 All members agreed that giving rural Yukon the majority of the seats was fair.

The Assembly did, at times, adjust boundaries based on the number of electors. In 1984, for instance, the legislature amended the district boundaries in the Whitehorse subdivisions of Porter Creek and Riverdale. Each subdivision had two districts and the amendments sought to equalize the number of electors between the districts in each subdivision.19 However, while greater voter parity was seen as fair for Whitehorse districts that shared a boundary, that idea was not applied across the territory. The consensus on the over-representation of rural Yukon held through four general elections from 1978 to 1989.

In May 1991, Mr. Justice Kenneth M. Lysyk was appointed as the sole commissioner of a new electoral district boundaries commission. Lysyk’s recommendations differed greatly from those of the Maddison Commission and the debate on Lysyk’s report was much more contentious than what had occurred in 1977. This difference was largely because Lysyk’s mandate directed him to consider “the principle of equality of voting power amongst electoral districts.”20 This was a first for the Yukon.21

Lysyk’s mandate did not direct him to give primacy to voter parity over other considerations. However, it was the first criterion listed in his mandate. Also, in June 1991, the Supreme Court of Canada had ruled: “Relative parity of voting power is a prime condition of effective representation.”22 In the same ruling the court referred to voter parity as the first condition of effective representation (emphasis added).23

Lysyk noted in his report that, “the 1991 Commission Act does not state a maximum permissible deviation. However, recent court rulings24 have established the importance of equality of voting power in ensuring the effective representation guaranteed by the Canadian Charter of Rights and Freedoms.”25

Giving primacy to voter parity distinguished Lysyk’s idea of effective representation from the focus on fairness that characterized previous redistribution processes. Where voter parity prevails representation follows population. In other words, areas that have more electors get more representatives.

Previous redistribution processes had taken a different approach. The MLAs saw electoral districts playing a role in the distribution of political power and influence. In that context, giving rural Yukon a majority of the seats was necessary to counterbalance the power and influence Whitehorse held because of its greater population and its status as the capital. This may sound anti-democratic, but the priority was not to equalize the voting power of individuals or electoral districts, but rather to establish and maintain a Whitehorse/rural balance of power. It was a made-in-the-Yukon solution to Yukon circumstances. However, as Lysyk noted, this approach meant “the Yukon’s existing electoral map displays the greatest deviations from voter parity to be found in Canada.”26

Pursuant to his mandate, Lysyk made three broad, novel recommendations: (1) that there be more electoral districts than ever (17); (2) that, for the first time, there be more electoral districts for Whitehorse (eight) than for rural Yukon (seven); and (3) that a new form of electoral district, “country-residential,” be created.

During debate on the implementation bill for Lysyk’s recommendations, only one member, Bill Brewster (Kluane, Yukon Party), gave strong support to the “one-person, one-vote concept.”27 Most members accepted, or were resigned to, the effect voter parity had on the proposed boundaries. Members saw the logic of the principle, though some disagreed with the outcome.  Yukon Party MLA Willard Phelps typified this dilemma. Phelps (a lawyer) had previously raised “concerns about the constitutional imperatives with regard to one-person-one-vote” due to his “genuine concern that the existing boundaries simply do not meet the tests of the constitutional imperatives, as set down in law by the various courts.”28

Yet Phelps strongly objected to Lysyk’s proposal that Carcross, Tagish, Teslin and Ross River be in the same electoral district. Phelps said that “Ross River is about as remote from Carcross, Tagish or Teslin [as] any two communities in the Yukon…it is a further drive from Carcross to Ross River during most months of the year than from Carcross to Dawson (City).”29 He added that no one in the proposed Ross River-Southern Lakes electoral district agreed with this configuration.

Addressing the Whitehorse/rural power dynamic, Piers McDonald (NDP), the member for the rural district of Mayo, said it was easy for MLAs “particularly while we are sitting, to respond to the needs and the urgencies” of Whitehorse. He noted that Whitehorse is home to the news media, the major community and territorial organizations, and the spokespeople for most territory-wide organizations.30 McDonald could have added that the most influential people in the public service – the Deputy Ministers, Assistant Deputy Ministers, and others – also live in Whitehorse. Even though rural MLAs were in the majority, the minority of the population living in rural Yukon did not hold disproportionate influence over public affairs.

Whatever their personal misgivings, a majority of MLAs voted for the enabling legislation. As Government House Leader Art Webster (Klondike, NDP) put it, “We have to look at reality here.” Webster cited the mix of factors to be considered, including the number of electoral districts, the desire to retain Old Crow as an electoral district, the legal “constraints… respecting acceptable deviations in voting power,” and Whitehorse’s increasing share of the population. He concluded, “I do not know what else we could expect [Lysyk] to recommend.”31

Lysyk’s recommendations were a success from a voter parity perspective. The 1992 general election results show that all 16 districts that formed part of the electoral quotient were within the +/-25 percent variance.32 However, to achieve this success the Assembly had to create some large rural electoral districts that included communities with little in common.

The effect that voter parity had on Lysyk’s recommendations continued through the electoral district boundary commissions that reported in 2002 and 2008. The country-residential electoral districts remain, though the 2002 and 2008 reports included them as “rural” districts.33 Whitehorse continues to have more electoral districts than rural Yukon. Whitehorse gained one seat when the Assembly expanded to 18 members in 2002 and and another when it was expanded to 19 members in 2011.

The factors to be considered by an electoral district boundaries commission are listed in section 419 of the Elections Act. These factors mirror the Supreme Court’s idea of effective representation.34 However the Veale Commission took a different approach to voter parity. On this point the Veale Commission said, “The factors on this list are considered together, and not in isolation. As such it is important to note that population is not the sole consideration in developing proposed electoral districts, nor is it weighed more heavily than the other considerations.”35 (emphasis added)

Giving population equal weight with other factors is not quite the same as the Supreme Court’s position that relative parity of voting power is a prime (or first) condition of effective representation and that deviations from it must be justified.36 By placing voter parity on equal footing with other factors, the Veale Commission was able to make recommendations that harkened back to the pre-Lysyk Commission period, such as eliminating country-residential districts and recommending more representation for rural communities despite the effect on voter parity. But as we have seen, most MLAs did not share the Veale Commission’s perspective and rejected Bill No. 19.

After rejecting Bill No. 19, the 34th Legislative Assembly did not further consider electoral district boundaries. As a result, the 2021 general election was run using electoral districts adopted in 2008 and first used in 2011.

There is merit to concerns about the extent to which the Veale Commission deviated from the +/-25 per cent variance. But rejecting Bill No. 19 did not solve the problem. Only nine of the 18 districts included in the electoral quotient complied with the variance in 2021. The most egregiously non-compliant district was Porter Creek South, a geographically compact Whitehorse district whose elector population was 57.35 per cent of the quotient. Only Vuntut Gwitchin had fewer electors. Porter Creek South is surrounded by three districts whose elector populations were substantially above the quotient (Porter Creek Centre – 154.23 per cent, Porter Creek North – 125.72 per cent and Takhini-Kopper King – 132.50 per cent). There was no justification for this difference. It existed only because the Assembly defeated Bill No. 19 without addressing this issue prior to the 2021 election.

Voter Parity and the future of effective representation in the Yukon

There is no easy or obvious solution to the challenges of drawing electoral district boundaries in the Yukon. The consensus that rural Yukon should have a majority of seats in the Assembly to counterbalance the political power and influence of Whitehorse no longer exists. However, the need for fair, effective representation remains. Achieving this will be difficult when voter parity is legally required and politically necessary in a jurisdiction with such a geographically uneven distribution of electors. In 1977 about 60 per cent of Yukoners lived in and around Whitehorse. Today the figure is approaching 80 per cent.

However, even where courts have given primacy to voter parity, they have not done so in a precise, prescriptive, or exclusive way. Courts have considered a myriad of demographic and geographical factors when assessing electoral districts. Courts have also deferred to the legislature where variations were demonstrably reasonable. And, courts have considered all relevant factors in the context of the jurisdiction at issue.37 In other words, there’s room for the Yukon to draft a set of boundaries that is not strictly determined by what has occurred in other jurisdictions.

In my view, the upcoming process should try to reconcile two goals: (1) providing fair and effective representation for rural communities and (2) ensuring voter parity for Whitehorse area districts.

In 2018, a majority of MLAs took the position that the Assembly should remain at 19 members and that the +/- 25 per cent variance should be adhered to. Given the demographic trends in the Yukon, this approach can only lead to less representation for rural Yukon. Reduced rural representation would raise questions about the viability of Vuntut Gwitchin as a stand-alone electoral district. The Veale Commission alluded to this.38 Reduced rural representation would also raise questions about the legitimacy of the Legislative Assembly as a Yukon-wide representative institution. It is difficult to imagine that an objective assessment would result in fewer than the seven rural districts that currently exist. Perhaps, like the Veale Commission, the new commission will recommend an additional rural district.

Voter parity for Whitehorse area electoral districts should mean ensuring not only that the Whitehorse and country-residential districts (however many there may be) conform to the +/-25 per cent territorial variance, but also that the differences between these districts are minimal. This was not the case with Bill No. 19. The boundaries proposed in that bill would have had five of Whitehorse’s 11 electoral districts above the variance by 2026. And many of those that fell within the variance were at the edges of compliance. Maximizing the number of electoral districts that conform to the variance will also, of course, maximize the number of electors who reside in conforming electoral districts.

If all Whitehorse area districts can be brought within the variance, they, along with the rural districts of Klondike (Dawson City) and Mount Lorne-Southern Lakes, would account for approximately 84 per cent of Yukon electors (based on 2021 figures). This high level of compliance should allow the Yukon to demonstrate that it is paying due attention to the legal and political need for voter parity where it can be reasonably achieved, while also providing fair and effective representation for less populated rural districts. This approach would also re-establish a made-in-the-Yukon solution to the Yukon’s unique challenges in drawing electoral district boundaries.

Notes

  1. “Electoral District Boundaries Commission members appointed” Government of Yukon news release #23-531 https://yukon.ca/en/news/electoral-district-boundaries- commission-members-appointed
  2. See section 419 of Yukon’s “Elections Act” https:// laws.yukon.ca/cms/images/LEGISLATION/ PRINCIPAL/2002/2002-0063/2002-0063.pdf
  3. Statistics Canada https://www150.statcan.gc.ca/n1/ pub/11-402-x/2010000/chap/geo/tbl/tbl07-eng.htm
  4. Statistics Canada. Table 17-10-0009-01 Population estimates, quarterly
  5. Yukon Bureau of Statistics, Population Report, Second Quarter, 2023. https://yukon.ca/sites/yukon.ca/files/ybs/ fin-population-report-q2-2023.pdf
  6. Yukon Bureau of Statistics, Population Report, Second Quarter, 2023. https://yukon.ca/sites/yukon.ca/files/ybs/ fin-population-report-q2-2023.pdf 
  7. Yukon Legislative Assembly, Hansard, November 20, 2017, page 1703 https://yukonassembly.ca/sites/default/files/hansard/34-2-056.pdf and April 19, 2018, page 2657 ttps://yukonassembly.ca/sites/default/files/ hansard/34-2-088.pdf
  8. Yukon. Elections Act, RSY 2002, c.63, section 418. https://laws.yukon.ca/cms/images/LEGISLATION/ PRINCIPAL/2002/2002-0063/2002-0063.pdf
  9. The 11th Liberal MLA was the Speaker who did not vote. Yukon Legislative Assembly, Hansard, November 19, 2018, pages 3646-3658.
  10. Yukon Legislative Assembly, Hansard, November 19, 2018, page 3646. https://yukonassembly.ca/sites/default/ files/hansard/34-2-117.pdf
  11. Yukon Legislative Assembly, Hansard, November 19, 2018. page 3647.
  12. Yukon Legislative Assembly, Hansard, November 19, 2018. page 3646.
  13. Yukon Legislative Assembly, Hansard, November 19, 2018. pages 3652-3653.
  14. Yukon Legislative Assembly, Hansard, November 19, 2018. page 3647.
  15. Yukon Legislative Assembly, Hansard, November 19, 2018, pages 3647-3650.
  16. Yukon Legislative Assembly, Debates & Proceedings, April 25, 1977, page 875. https://yukonassembly.ca/sites/ default/files/inline-files/Debates-Proceedings-23-8-1977- 04-25-Number-26.pdf
  17. Yukon Legislative Assembly, Debates & Proceedings, November 28, 1977, page 311. https://yukonassembly. ca/sites/default/files/inline-files/Debates-Proceedings- 23-9-1977-11-28-Number-14.pdf
  18. Yukon Legislative Assembly, Debates & Proceedings, November 28, 1977, page 311.
  19. Yukon Legislative Assembly, Hansard, November 29, 1984, page 890.
  20. The Hon. Mr. Justice Kenneth M. Lysyk, Electoral District Boundaries Commission Report 1991, (Lysyk Report) page vi.
  21. Lysyk Report, p. i.
  22. Supreme Court of Canada, Reference re Prov. Electoral Boundaries (Sask.) [1991] 2 SCR 158, page 160.
  23. Supreme Court of Canada, Ibid. pages 183-184.
  24. Here he cites the Saskatchewan Reference case.
  25. Lysyk Report, page 1.
  26. Lysyk Report, page i.
  27. Yukon Legislative Assembly, Hansard, May 5, 1992. https://yukonassembly.ca/sites/default/files/ hansard/27-3-010.html
  28. Yukon Legislative Assembly, Hansard. May 5, 1992.
  29. Yukon Legislative Assembly, Hansard, May 5, 1992. Dawson City is about 600 kilometres from Carcross.
  30. Yukon Legislative Assembly, Hansard, May 5, 1992.
  31. Yukon Legislative Assembly, Hansard, May 5, 1992.
  32. These figures were compiled by the author using the report of the Chief Electoral Officer on the 1992 general election. https://electionsyukon.ca/sites/elections/ files/1992_general_election_2.pdf
  33. Yukon Electoral District Boundaries Commission Final Report, January 2002, page 21 and Yukon Electoral District Boundaries Commission Final Report, March 2008, page 11. 
  34. Elections Act, section 419.
  35. Yukon Electoral District Boundaries Commission, Final Report (April 2018)(Veale Commission Final Report), page 19. https://yukonassembly.ca/sites/default/files/ inline-files/sp-34-2-58.pdf
  36. Supreme Court of Canada, Op. Cit., page 160.
  37. See the section “Legal Precedent” in Yukon Electoral District Boundaries Commission Final Report, January 2002, pages 6-13.
  38. Yukon Electoral District Boundaries Commission, Final Report (April 2018)(Veale Commission Final Report), page 36. https://yukonassembly.ca/sites/default/files/ inline-files/sp-34-2-58.pdf
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