[Canada] Canadian Politics Redux

[PJL]

If Albertan politicians can get enough support from the voters for the gerrymandering, then they would be right in calling the courts undemocratic. Ultimately, laws are there for the benefit of the people. If enough of them deem it unjust (aka undemocratic), then they do have the right to change it in the long run, irrespective of the courts.

Laws are there to benefit the people, and the supreme law in our country is our constitution.  If a law is unconstitutional, it is struck down.

Explain to me why this is a bad thing?

All laws and the Constitution itself are there to serve the people and are ultimately subject to change if enough people desire it so. There is no problem with that, as long as it is done through the proper democratic principles.

[crazy canuck]

If Albertan politicians can get enough support from the voters for the gerrymandering, then they would be right in calling the courts undemocratic. Ultimately, laws are there for the benefit of the people. If enough of them deem it unjust (aka undemocratic), then they do have the right to change it in the long run, irrespective of the courts.

Laws are there to benefit the people, and the supreme law in our country is our constitution.  If a law is unconstitutional, it is struck down.

Explain to me why this is a bad thing?

All laws and the Constitution itself are there to serve the people and are ultimately subject to change if enough people desire it so. There is no problem with that, as long as it is done through the proper democratic principles.

Yes, and who gets to decide whether the proper Democratic principles are applied?  That's right, under our system of democracy it is the court who makes that decision.  It is the court that decides whether a law is compliant with the constitution and whether governmental decision makers are acting within the authority given to them by a statute.

Now go back to your original post and explain to me how what you said is compliant with the rule of law.

[crazy canuck]

Interesting. Quebec just went thru this entire ordeal. Commission recommends, government & all MPs really disagree and enact a law, law gets struck drown by the courts.

It's going to happen for Alberta too.

What was the reason the politicians in Quebec gave for not adopting the commission's report?

[Grey Fox]

Interesting. Quebec just went thru this entire ordeal. Commission recommends, government & all MPs really disagree and enact a law, law gets struck drown by the courts.

It's going to happen for Alberta too.

What was the reason the politicians in Quebec gave for not adopting the commission's report?

Interesting. Quebec just went thru this entire ordeal. Commission recommends, government & all MPs really disagree and enact a law, law gets struck drown by the courts.

It's going to happen for Alberta too.

What was the reason the politicians in Quebec gave for not adopting the commission's report?

Regional representation. The 2 lesser populous area are losing their MNA.

They fixed it by growing the National Assembly by 2 to 127.

[Barrister]

The Globe has an extensive analysis of the Gerrymandering occurring in Alberta.  For our American friends, gerrymandering is unlawful in Canada. We have an independent commission that sets the electoral boundaries on a set schedule.  The Alberta government did not accept the commission's report and will now create its own boundaries.  This will likely end in another legal challenge, which the government will lose. I suspect that is the purpose. The right wants to say the courts are undemocratic - and the simple minded will accept that line, forgetting (or perhaps never knowing) the important role of the rule of law in a healthy democracy.

Here is a detailed breakdown of the effect of the gerrymandering - gifted link

https://www.theglobeandmail.com/gift/519974dc5e28f762a87fb14c1570523f4fb873adfcfcb945043907ccc3c41650/4K7VB7BWWZAW5P3M37Y7SX55ZA/

I'm going to try and answer this respectfully.

I really would not say "Gerrymandering is unlawful in Canada".  For starters there's no such law that says "Gerrymandering is illegal".  Second, it's just that by custom we invariably have non-partisan electoral boundaries commissions in every jurisdiction.  Not because it's required by law, but because it's just a good idea.

Now, it seems the leading authority is Reference re Prov. Electoral Boundaries (Sask.) [1991] 2 SCR 158

https://www.canlii.org/en/ca/scc/doc/1991/1991canlii61/1991canlii61.html

So the SCC does apply a s. 3 of the Charter to looking at electoral boundaries, so the courts are certainly willing to get involved even though s. 3 only speaks of the "right to vote in an election" and doesn't mention boundaries at all.  The Sask Electoral boundaries in question though were challenged because of a disparity in the number of voters per riding, and the SCC held that of course you can never get absolute equality, and that it is all about "effective representation".

Riding boundaries are inherently difficult because there are inevitable political consequences.  The G&M article you posted shows the difference.  But if you look at the minority map the boundaries are not the crazy gerrymanders you can see in the US - you still see compact boundaries that largely follow local communities.

Yes, and who gets to decide whether the proper Democratic principles are applied?  That's right, under our system of democracy it is the court who makes that decision.  It is the court that decides whether a law is compliant with the constitution and whether governmental decision makers are acting within the authority given to them by a statute.

Now go back to your original post and explain to me how what you said is compliant with the rule of law.

This is really overly simplifying matters.  There's an inevitable tension between the role of the courts and of Parliament.  It is quite significant to point out that Parliament is elected, while the courts are not.  Parliament is thus far more accountable to Canadians while judges are largely not accountable.

Courts can and do overstep their bounds from time to time.  When judges get to interpret what the constitution says they can certainly be tempted to have it say whatever they want it to say.  This is precisely why s. 35 was put in the Constitution in the first place.

Now obviously the courts have a role as well.  We have decided we do not want to give Parliament unlimited powers as long as they have a majority, and thus the courts do have a role.  But Justices generally know they lack that certain accountability that Parliament has and generally are reluctant to step out too far.

[crazy canuck]

To clarify, when I said that gerrymandering is unlawful in Canada, what I meant is that no provincial or federal government can lawfully engage in that activity.

There is of course, no criminal code provision, making it a criminal act, but that is not what I mean by the word unlawful.  It would be unlawful because the way the law has developed in this country is that in order to safeguard our democratic institutions the drawing of electoral boundaries must be done by an independent commission.  That practice goes back decades.

And that is all of the legal and constitutional normative behaviour that the Alberta UCP are rejecting.

There is a troubling trope coming out of the Canadian right mimicking the American right about activist courts. That has been around for a while now, but it is intensifying and it is deeply concerning.

[Bauer]

Seems like common sense to have a nonpartisan institution be the one deciding electoral boundaries, surprised it's even a possibility 

[Grey Fox]

It only works when every party with a chance to hold power are working towards a common goal with kindred measures. Something that is quickly eroding.

[Barrister]

To clarify, when I said that gerrymandering is unlawful in Canada, what I meant is that no provincial or federal government can lawfully engage in that activity.

There is of course, no criminal code provision, making it a criminal act, but that is not what I mean by the word unlawful.  It would be unlawful because the way the law has developed in this country is that in order to safeguard our democratic institutions the drawing of electoral boundaries must be done by an independent commission.  That practice goes back decades.

And that is all of the legal and constitutional normative behaviour that the Alberta UCP are rejecting.

But there is no LAW against gerrymandering.  Criminal or otherwise.

As we've discovered with Trump in the US so many of these things are norms and traditions, not laws.

I've reviewed the Alberta Electoral Boundaries Commission Act, since we're discussing Alberta.

https://www.canlii.org/en/ab/laws/stat/rsa-2000-c-e-3/latest/rsa-2000-c-e-3.html

It doesn't prohibit taking electoral consequences into effect.  Instead it says the Commission must consider the following criteria:

14  In determining the area to be included in and in fixing the boundaries of the proposed electoral divisions, the Commission, subject to section 15, shall take into consideration the requirement for effective representation as guaranteed by the Canadian Charter of Rights and Freedoms, and in doing so may take into consideration

                            (a)    sparsity, density and rate of growth of the population,

                            (b)    communities of interest, including municipalities, regional and rural communities, Indian reserves and Metis settlements,

                            (c)    geographical features,

                            (d)    the availability and means of communication and transportation between various parts of Alberta,

                            (e)    the desirability of understandable and clear boundaries, and

                              (f)    any other factors the Commission considers appropriate.

Now those factors are laid out certainly don't allow the crazy US boundaries you sometimes see.  (The term "gerrymander" comes from a portmanteau of 19th century politician named Gerry plus a riding boundary that looked like some kind of salamander).  But you could certainly do a much more subtle gerrymander while being largely consistent with these guidelines (which is what the minority report appeared to do).

And the thing is - the Alberta government could just amend this Act.  Which is what they intend to do as I understand it.  And subject to potential court review and application of s. 3 of the Charter, there's nothing that would really stop them.

[Barrister]

Seems like common sense to have a nonpartisan institution be the one deciding electoral boundaries, surprised it's even a possibility 

Because "nonpartisan" is almost impossible in real life.  Everyone has political biases and opinions.  If someone is well and truly indifferent between who wins any given election that person is a moron - not non-partisan.

Now you can see what Alberta tried to do.  There's a 5 member commission.  2 members appointed on recommendation of the government.  2 members recommended by the opposition.  And the chairperson who is a retired judge, university President, or the like.  Hopefully those 5 will work together to come to a consensus.  But that didn't happen this time.

[Barrister]

So it looks very much like we're going to get a separation referendum anyways.

At the same time as the pro-separation referendum was gathering signatures, there was also a pre-Canada referendum.  The questions was in favour of remaining in Canada.

So the pro-separation referendum was put on hold by a judicial decision.  So now they're going to still hold a referendum based on the pro-Canada question (because if you vote "no" you're presumably in favour of separation).

It's all just so stupid.

[crazy canuck]

It only works when every party with a chance to hold power are working towards a common goal with kindred measures. Something that is quickly eroding.

Yeah, I think that's right. We've been fortunate that for most of the last 30 years, the wisdom of having a non-partisan independent committee make recommendations which are implemented by the legislators has been widely accepted.

[crazy canuck]

Seems like common sense to have a nonpartisan institution be the one deciding electoral boundaries, surprised it's even a possibility 

Because "nonpartisan" is almost impossible in real life.  Everyone has political biases and opinions.  If someone is well and truly indifferent between who wins any given election that person is a moron - not non-partisan.

Now you can see what Alberta tried to do.  There's a 5 member commission.  2 members appointed on recommendation of the government.  2 members recommended by the opposition.  And the chairperson who is a retired judge, university President, or the like.  Hopefully those 5 will work together to come to a consensus.  But that didn't happen this time.

Nonsense. There have been a number of electoral boundary commissions in this province which everybody has recognized as being completely non-partisan.

[Tonitrus]

It's all just so stupid.

"Alberta is too oblong for a republic, and too large for an insane asylum."

[PRC]

It's all just so stupid.

It's the times we live in.  I hope this doesn't turn out to be an own goal.