Bill C-20 (Historical)

Fair Representation Act

An Act to amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act and the Canada Elections Act

This enactment amends the rules in the Constitution Act, 1867 for readjusting the number of members of the House of Commons and the representation of the provinces in that House.
It amends the time periods in several provisions of the Electoral Boundaries Readjustment Act and requires that electronic versions of maps be provided to registered parties.
It also amends the Canada Elections Act to permit a returning officer to be appointed for a new term of office in certain circumstances.

[Michael Pal]

I did some numbers on that.

In 2021 prior to redistribution, using StatsCan projections, which of course are projections, Ontario would have about 123,000 people per riding; Alberta, just under 123,000; and British Columbia, 134,000, whereas the rest of the provinces would be at just a bit above 81,000 or 82,000. After the redistribution those numbers get better under C-20. They average about 120,000 or 122,000 in the three fast-growing provinces. If you keep 111,000 as the quotient, then the average riding population will be about 110,000 or 111,000 for those three provinces. It's still quite a large gap, but it's closer under the formula that we're proposing at the Mowat Centre than it would otherwise be. If we keep the 279 formula, C-20 is a big improvement. We're suggesting further refinements to that formula if the goal is to enhance rep by pop.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I mean if we don't act with a future version of C-20 and further adjust the formula.

[Michael Pal]

Do you mean that if Bill C-20 were not passed?

[Michael Pal, Fellow, Mowat Centre, University of Toronto - School of Public Policy and Governance]

Thank you very much for having me here today.

Merci de m'avoir invité.

I'm going to talk about two main things in my brief remarks here: first, about the positive steps forward that I believe Bill C-20 is taking, and second, to raise a couple of possible amendments or other reforms that Bill C-20 does not fully address, in order to further the value of representation by population.

To get to the areas where I believe Bill C-20 moves forward, it makes four key reforms. The first is that it removes the artificial cap on the size of the House of Commons. The current redistribution formula divides the population of each province by 279. The practical effect of the 279 formula means that not enough seats are added to the fast-growing provinces, those being Ontario, Alberta, and British Columbia. By removing that cap, Bill C-20 raises the possibility that representation by population will be adhered to much more closely than it currently is.

The second positive move forward by Bill C-20 is that it adds seats to exactly those provinces that have fast-growing populations. Alberta would receive six seats, Ontario fifteen, and British Columbia six. Professor Sancton spoke a little about provincial representation. I think the real issue is actually the representation of voters. It's voter equality that matters. It's not the absolute number of seats going to each province, it's what the voting power of an individual Canadian citizen is. Currently, citizens in Ontario, Alberta, and British Columbia are underrepresented. That has been the case for decades. Population growth in those provinces is concentrated not province-wide, but in the urban and suburban areas in those provinces. That has been known for quite a long time.

The changing demographic fact is that population growth is now driven by immigration. Immigrants, who are overwhelmingly visible minorities, choose to settle in the largest urban areas in those three provinces—for example, in the 905 district around Toronto, in Greater Vancouver, or in Calgary and Edmonton. What we're really talking about is who is the underrepresented voter. That underrepresented voter is increasingly a new Canadian who lives in a suburb and, increasingly, he or she is a visible minority. By adding seats to the fast-growing provinces, Bill C-20 is a positive move because it raises equality for those voters. It raises their voting weight.

The third positive move of Bill C-20 is that it treats Ontario equally with the other fast-growing provinces, Alberta and British Columbia. As I believe the committee will know, earlier versions of the legislation applied a specific formula that didn't allow Ontario's seat complement to grow as fast as it allowed Alberta's and British Columbia's. This bill treats those three provinces equally, and I think that's a very positive move.

The fourth issue is that adding seats to the House of Commons had the unintentional effect of diluting Quebec's proportionate representation. This bill would add three seats to Quebec. I think that's a good development, because it means that the proportion of seats Quebec has in the House will not fall below its proportion in the general population.

Those are the four positive moves.

What else does Bill C-20 need to address to really deal with representation by population? Bill C-20 deals with interprovincial inequalities, such as the case with a farmer in Ontario who has less voting weight than a farmer in Manitoba or Saskatchewan. Bill C-20 gets to that problem. What Bill C-20 does not address is voting power within provinces. Within each province, suburban and urban voters have much lower voting power than voters generally in rural areas, and you also see discrepancies between regions.

Once these seats are allocated to each province, as you know, it's independent, non-partisan electoral boundary commissions that decide on the actual boundaries. I think most academics are in agreement that the boundary commission process works very well, but the problem lies at the legislative level.

The Electoral Boundaries Readjustment Act allows commissions to deviate by 25% above or below the average population in a province. Then in extraordinary circumstances—which are undefined—they can even go beyond that. If you have a province with an average riding population of 100,000 people, the commission can deviate as low as 75,000 or as high as 125,000 people, not even using the exceptional circumstances clause. That's actually quite a wide deviation, which makes federal districts an outlier both domestically and internationally.

Recently, Manitoba, Saskatchewan, New Brunswick, and Newfoundland have all moved to much lower variances. They now allow between 5% and 10% as the number, with exemptions for those ridings where it's just geographically unmanageable to insist on representation by population. But those exceptions tend to be quite small in number.

As Professor Sancton said, the U.S. insists on absolute voter equality. I hope it will also be of interest to the committee that the United Kingdom has legislation before it that would reduce the variance to 5% in the U.K., with some exemptions.

At the Mowat Centre, we suggest that this bill should be amended to allow only a 5% to 10% variance, with some exemptions for ridings such as Labrador. Labrador is separated from the rest of Newfoundland by water. It only has 25,000 or 30,000 people, and it doesn't make sense to connect that riding with another riding in Newfoundland. That's the kind of riding where an exemption would be valid.

The last issue that I just wanted to raise is that while this bill gets rid of the 279 baseline for the size of the House, future growth of the House is still limited. The bill uses 111,161 people as the electoral quotient for the 2011 redistribution, and that moves us quite close to representation by population—although Ontario is still slightly underrepresented. But the formula contained in rule 6 of the bill increases that 111,000 number by the average rate of provincial population growth. In practice what that means is that the number of 111,000 will increase and will be something like 120,000, if Statistics Canada's medium-range population projections turn out to be accurate. On my reading of what those numbers will mean, the average riding size in Ontario, Alberta, and British Columbia—not for this redistribution of 2011, but the next one in 2021—will continue to grow to levels that I believe Parliament should consider problematic.

Under the Bill C-20 formula, the average riding in Ontario, Alberta, and British Columbia would have about 122,000 people, whereas the average riding in the rest of Canada would have about 82,000 people—and those are just the averages. There are extremes that obviously go quite a bit beyond that. So what we propose as a preferable formula is to keep 111,161 as the permanent electoral quotient going forward.

Now, the consequence of this will be that more seats are added to the House of Commons. Professor Sancton has raised some valid concerns about that. But if what we're really trying to do is to achieve representation by population, then an amendment to the formula will help us to achieve that.

Those are my comments.

Thank you very much for your time. I look forward to your questions.

[Dr. Andrew Sancton]

It is a pleasure to be here, and as the chair said, I've served on electoral boundaries commissions in Ontario on three separate occasions and I have testified about this kind of redistribution issue on three or four other occasions in the past. Most recently, I wrote a paper on the principle of representation by population in Canadian federal politics for the Mowat Centre in 2010.

The first point I want to emphasize is that Bill C-20 amends the Constitution of Canada. The Constitution provides that Parliament, acting alone, can amend the formula for allocating House of Commons seats among the provinces, providing that it does not violate “the principle of proportionate representation of the provinces” and providing that no province is ever allocated fewer MPs than senators. There are no other restrictions on what Parliament can enact with respect to this subject.

I applaud the government for proposing to amend the formula so as to improve the relative representation of Ontario, British Columbia, and Alberta. In my view, lack of such action would have left the existing formula open to constitutional challenge on the grounds that it was increasingly failing to reflect “the principle of proportionate representation of the provinces”. I also applaud the government for proposing that no province that is over-represented by the current formula should become underrepresented as a result of the operation of any of the new arrangements.

But I cannot support any formula that has the effect of adding significantly more MPs than we already have. The government, of course, is absolutely right in pointing out that if we want to treat the fast-growing provinces fairly, and if we do not significantly add to the total number of MPs, the effect would be to remove MPs from some provinces.

By my calculations, since Confederation there have been 22 instances of individual provinces losing members of Parliament as a result of redistributions of seats following decennial censuses. It happens regularly within the constituent units of other federations, most notably in the United States, where the size of the House of Representatives is held constant and the size of each state’s delegation is adjusted up or down every 10 years. The U.S. Constitution does not allow Congress to act alone and do what the government is proposing that Parliament do by enacting Bill C-20.

The so-called grandfather clause, which prevents provinces from losing seats from one redistribution to another, or prevents their seats from falling below what they were in 1985, was enacted by Parliament alone in 1985. It can just as easily be removed by Parliament acting alone in 2011. In fact, that is exactly what I urge you to do.

If Parliament once again makes it possible for provinces to lose seats, then fast-growing provinces can be treated more fairly without significantly expanding the House of Commons—or, indeed, without expanding it at all. By enacting the government’s proposed provision that no currently over-represented province can become underrepresented, you will ensure that no small or slow-growing province is treated unfairly. That's why I support that provision. Some might see it as an advantage that this provision could possibly apply to provinces other than just Quebec, and I'm thinking particularly here of Manitoba and Saskatchewan.

As I've followed this debate so far, I believe there has been far too much emphasis on exactly which provinces are getting exactly how many more seats. The key issue is the fairness of the formula itself and how it affects the relative representation of each of the provinces in relation to the others. Except for incumbent and aspiring MPs, I believe the absolute number of seats in a particular province is quite irrelevant.

The issue that the rest of us are concerned about is the relative representational strength of provinces in relation to their respective shares of the total population. I am sure everyone here realizes that floor for the number of Senate seats has the effect of protecting seats in the small provinces of Atlantic Canada, but not in Manitoba and Saskatchewan. Under my preferred approach, I'm the first to admit that these two provinces, Manitoba and Saskatchewan, would lose relatively more seats than the Atlantic provinces, and perhaps there is a need for some form of cushioning mechanism.

The problem, of course, is that each time exceptional mechanisms are added, the fast-growing provinces lose in relative terms. The whole object of this enterprise is to begin once again to treat them fairly. My preferred option, in the form of a cushion or a floor, would be to enact a rule that we've had before, that no province can have fewer MPs than a province with a smaller population.

I would like to end my presentation with a personal anecdote relating to my experience on electoral boundaries commissions. The first time I was on one was in the 1980s. I wrote my first academic articles on this subject in the 1970s. In the early 1980s, I was appointed by the then-Speaker of the House of Commons to be one of three members of the Federal Electoral Boundaries Commission for Ontario.

Under the terms of the amalgam formula enacted in 1974, Ontario was to receive 10 more seats and the House of Commons was to expand from 282 members to 310 members. We commissioners did what we were supposed to do: We drew our proposed maps, which of necessity led to many significant boundary changes—and I emphasize that. When you have a lot more seats, you're going to change a lot more boundaries. You don't just plop the seats in a neat package; it changes everything. Anyway, we did that and we proceeded to hold public hearings in accordance with the act.

It's not an exaggeration to say that we were met with a torrent of abuse. “Why all of these changes? Why do we have more MPs”, people asked. The wise and kindly judge who chaired our commission, who died only recently, tried to explain that this was all for Ontario’s benefit. Our audiences were not convinced. They knew rightly and instinctively that enlarging the House of Commons to accommodate Ontario’s fast growth could not possibly be the only way of proceeding.

The government of Prime Minister Mulroney then brought in legislation that abolished our commission and created a new formula. That formula is the same one that contained the grandfather clause, and has had the effect over time of increasing the underrepresentation of fast-growing provinces.

This is the formula that Bill C-20 is designed to change but, of course, it's not getting rid of the grandfather clause. My fear is that Bill C-20 is repeating a crucial mistake from the past. Canadians do want fair and proportionate representation. Certainly, Ontarians do, and I fully support that. But people don't want more MPs. Every time I tell people what I'm doing today, that's what they tell me, “We don't want more MPs.” You might not feel the full effect of the anger now, but if this bill is enacted in its current form, I believe you will increasingly feel that anger as the prospect of many more additional MPs becomes real.

Thank you, Mr. Chair.

[The Chair, Conservative, Joe Preston]

I call the meeting to order. We are here today in public. Pursuant to the order of reference of Thursday, November 3, 2011, we are considering Bill C-20, An Act to amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act and the Canada Elections Act.

We have three witnesses in our first hour today, and we'll have three witnesses in our second hour, also.

Here this morning we have Andrew Sancton, from the department of political science at the University of Western Ontario. He's a good Londoner. He's also a former electoral boundaries commissioner. If we have any questions on that, it may be suitable to ask them today.

We have Nelson Wiseman here today from the University of Toronto. It's good to have you with us. Also we have Michael Pal, from the Mowat Centre.

We're going to have them each give a bit of an opening statement, if they have one, and then we'll go to rounds of questioning.

Mr. Sancton, would you like to go first?

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you, Mr. Chair.

We've dealt with the formula quite a bit, Mr. Kingsley. You also made several recommendations in the report with respect to boundary commissions and redistribution and solving the process there. And the legislation has adopted some of those, I am glad to see.

Generally speaking, would you have any suggestions for the boundary commissions themselves? Regardless of whether Bill C-20 is enacted, come early February, the process of boundary commissions being established and doing their work has to continue.

Did you see any problems in past years when you were administering this process? Do you have any suggestions you might be able to pass along, both to this committee and perhaps to some of the commissioners who will be appointed, in many cases, I'm sure, for the first time?

[Jean-Pierre Kingsley]

Mr. Chairman, committee members, I'm very pleased to be appearing once again before you. This is the second time that I have made an appearance since leaving my position. I can recall some very interesting exchanges during my previous appearance. As always, I feel that it is a privilege to be able to appear before the people who represent Canadians after an election. This is, in my opinion, a very great honour.

I was eager to accept the invitation that was extended to me on Tuesday at noon. I would like to point out that I may not be able to answer all the questions that you may have. If that is the case, I would like the clerk to note them and I will provide you with a response in writing, if you wish, or in person if that is of greater interest to you.

The documents that I have had the opportunity to read, without doing so on an in-depth basis, obviously include Bill C-20, with its many scenarios, depending on the date of adoption, as well as the testimonies provided last Tuesday when Minister Uppal and Mr. Marc Mayrand, my successor, appeared before you. I also had an opportunity to read my 2005 report and I looked at seat distribution for 2001 and 1991.

I would also like to remind you that when I worked at the office during the 1990s—I do not recall the exact date—the chief electoral officer had suggested that the number of seats be limited to about 300. At that time there were 301 ridings and people were worried about this number rising. Moreover, yesterday, someone quoted Mr. Harper at the time.

In addition, the redistribution exercise was put on hold at one point, effectively disrupting all of the work. This is something to be avoided if at all possible. Once a committee has begun its work, it should continue without interruption, without new data, without any change in data, until everything has been completed.

In my view, with respect to the bill that is before you, with respect to three matters, with respect to the shorter timeframes, the seven months instead of the year to get ready, we did it. I remember well Mr. Martin, the Prime Minister at the time, wanted to do an election within six months. I had to tell him I couldn't do it before seven, even though the law allowed me 12. Seven was the shortest, and we were able to achieve it.

The 30 days instead of 60 and the 10 months instead of 12 came out of presentations, representations made by the commissions themselves, because we had post-mortems and we had questions. The 30-day minimum is a minimum. It does not mean that you've cut everybody else off.

These were ideas emanating from the commissions themselves that we wanted to act on.

I will just mention that one of the reasons why all of this becomes very possible is the very high-performing computers that now exist for cartography, for example, for utilizing StatsCan data, skimming off what you need in order to help the commissions. Whereas it used to take two months to prepare a series of maps, it can now take half a day. With respect to the formula itself, we've heard what the chief statistician said. It's obvious to me that a new number has been designed in order to do the in-between provinces. The way the indexing formula for future redistribution exercises works is that it will be the average of provincial population growth.

That will have the impact of slightly lowering the quotient, compared to if you used the total population, the average Canadian population overall, which means then that the seats will remain slightly higher, which is what is sought by this exercise.

The resulting allocation from Bill C-20, in my view, with Ontario getting 15 seats, Alberta 6, B.C. 6, and Quebec 3, is exceedingly good.

The west, in essence, and Ontario, while not getting exactly what they should, will certainly be much better represented, in terms of what democracy is about. Insofar as Quebec is concerned, Quebec will remain right on, not overrepresented, not underrepresented, based on the total number of seats. This has been one of the objectives for a very long time. I think Mr. Reid was alluding to this in his testimony yesterday. It has been around for a long time that Quebec was a pivotal province. There are those that are underrepresented. There are those that are overrepresented. Quebec is right there. This approach is one, certainly, that I am in agreement with.

Thank you, Mr. Chairman.

[Wayne Smith]

The estimates are already the numbers used, and the numbers used in transfer payments are the estimates, the ones that are being proposed to be used in Bill C-20, so those are the ones that are used for transfer payments, and we indeed do believe they're a better basis, for the reasons that I've just presented. They're a better basis for making those allocations.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you very much, Mr. Chair.

Thank you for being here, Mr. Smith. Your presentation was informative for me because I think the largest question all of us have is based on population estimates and their accuracy.

The formula the minister explained to all of us is based on the population estimates. If we are to do a relatively accurate redistribution, or in this case increase, of seats by population, we have to be assured that the numbers we're using are accurate.

I have some confidence based on your presentation, but I would like to get a little more information and perhaps probe a little deeper, if I can, to give not only me but other members of this committee some confidence that the population estimates, as opposed to the census data, are the figures we should be using for the purposes of Bill C-20.

You've given us a chart based on the 2006 population from the census perspective in the population estimates. You've stated, and it shows on the graph, that the population estimates are, I think in your words, invariably more accurate.

Why are the population estimates more accurate? Is it because you've designed a better formula, or is it because perhaps the census data taken only comes out once every few years?

I think it's important for us to know why we can count on population estimates and should be counting on them in terms of accuracy of population counts both in Canada and across the provinces.

[Wayne Smith]

Thank you, Mr. Chairman, for this opportunity to address the committee in relation to its study of Bill C-20.

Today, I am accompanied by two officials from Statistics Canada who are experts in census and population estimate methodologies, namely Mr. David Dolson, Director of Social Survey Methods, and Ms. Johanne Denis, Director of the Demography Branch.

As I think you know, Statistics Canada's role in the readjustment of electoral boundaries is in the supply of population data to support, first, the application of the formula for allocation of seats to the provinces and territories, and, second, the delineation of electoral districts within provinces and territories. For the purpose of delineation of electoral districts within provinces and territories, there is only one source of population data that provides the necessary detailed geographic breakdowns, and that is the census of population, which is conducted every five years.

For the purpose of allocation of seats between provinces and territories, there are two alternative sources of population data that could be employed. The first source, and the one that has been used in the past, is the unadjusted population counts from the decennial census of population. Statistics Canada will publish counts from the 2011 census of population on February 8, 2012. The second alternative source is Statistics Canada's population estimates program. This program produces annual and quarterly estimates of the populations of the provinces and territories. Estimates in this program reflect at any given point in time all of the information that Statistics Canada possesses in order to provide the best possible evaluation of those populations.

Bill C-20 proposes, in a departure from previous practice, to use the currently available estimates of provincial and territorial populations at July 1, 2011, for purposes of calculating the allocation of seats between provinces and territories. These estimates reflect results of the 2006 census adjusted for net undercoverage, augmented by births and immigration since the census date and reduced by deaths and emigration.

Given that the objective of Bill C-20 is to launch the readjustment process at this time, the relevant statistical issue for consideration by the committee is which of the two alternative measures of the populations of the provinces and territories is likeliest to be the closest to the true value: the currently available population estimates or the unadjusted 2011 census of population counts that will be released in February. To answer this question, the census counts and the current population estimates need to be compared to the definitive estimates of the 2011 population that Statistics Canada will produce in 2013. These will reflect estimates of net undercoverage of provincial and territorial populations from the 2011 census of population to be generated by studies that are currently under way but not available.

Let me explain briefly the key notion of net census undercoverage. Official statisticians in all countries know that a census of population, however well conducted, will miss some people while counting some others twice. Statistics Canada, after each census, conducts a statistical study of these two effects.

Estimates from the 1996, 2001, and 2006 censuses indicate that net undercoverage, because we miss more people than we double count, is typically on the order of 2% to 3% of the population counts in the Canadian census. We cannot know at this time what the level of net undercoverage will be for the 2011 census of population—the necessary study, as I said, has not yet been completed—nor can we definitively know whether estimates of natural increases and migration that underlie the population estimates will be confirmed.

The best guide, therefore, to answer the question of which of the currently available population estimates or the unadjusted 2011 census population counts will be closest to our definitive estimates is to look at what has happened in previous censuses. Having done this work, I can inform the committee that the population estimates for the provinces and territories available at the time of the release of the census counts have typically been substantially closer to the definitive estimates than the unadjusted census counts themselves.

To demonstrate this, I have prepared a table, which I think you have in front of you, based on the 2006 census, that looks essentially at the situation as it unfolded for the 2006 census. The table compares the unadjusted 2006 census population counts and the population estimates published in September 2006, which is essentially the same generation of estimates that we're talking about right now for 2011, to the adjusted 2006 census population counts that were published in September 2008.

At the Canada level, the population estimates published in September 2006 were 0.3% higher than the definitive population counts, while the unadjusted counts were 2.8% lower. As at the Canada level, at the provincial and territorial levels, the population estimates were invariably significantly closer to the definitive population counts than the unadjusted counts were.

In summary, even with the release of the 2011 census unadjusted population counts on February 8, 2012, it is Statistics Canada's view that the currently available estimates of population at July 1 represent the best available evaluation of the population of the provinces and territories that is available at this time or that will be available on February 8. It is therefore appropriate, in our view, that they should be used for the purposes of Bill C-20.

Thank you.

[The Chair, Conservative, Joe Preston]

I call our meeting to order, and we'll get started today.

We have two sets of witnesses and a little bit of committee business to do at the end of the meeting today, so we're going to just see if we can find a little bit of time out of each of the witnesses.

We're here today, still pursuant to the order of reference of Thursday, November 3, 2011, on Bill C-20, An Act to amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act and the Canada Elections Act.

We have as our first witness today Mr. Wayne Smith, our chief statistician.

Mr. Smith, I understand you have a set of opening remarks. I'd ask you to introduce your colleagues today, make your opening remarks, and then we'll get to questions.

Mr. Lukiwski.

[Marc Mayrand]

It's a little bit more than that. Our estimate is that by that time we would have to reappoint 120 returning officers. There are always 30 or so who resign each year. Currently, we have suspended appointments in light of the redistribution process that will be taking place. There is no benefit in appointing ROs right now. We expect also that there may be, as a result of various circumstances, a number of ROs who will not be reappointed. So overall, we estimate that even with the change that's provided in Bill C-20, we would have to reappoint 120 ROs following the redistribution.

[Dave MacKenzie, Conservative, Oxford, ON]

If Bill C-20 passes, we move into that. You're going to have to appoint 30 brand-new people.

[Marc Mayrand]

The appointment is for 10 years, provided that the returning officer continues to perform according to expectations. In the case of redistribution, however, if there's any change in the riding, the act requires that there be a reappointment process. There's an important provision in Bill C-20 that would facilitate the reappointment of well-performing returning officers.