Going to polls before fixing boundaries could be legal problem, says prof

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Going to polls before fixing boundaries could be legal problem, says prof

A Nova Scotia professor with expertise in constitutional law says Premier Stephen McNeil could be opening himself up to legal challenges if he calls an election before dealing with questions about electoral boundaries.

Earlier this week, representatives for the Fédération Acadienne de la Nouvelle-Ecosse (FANE) announced they would go to court as soon as they could to try to reinstate three protected Acadian electoral districts eliminated in 2012 by the former NDP government.

The move followed a ruling in January by the Nova Scotia Court of Appeal that the process used to change the boundaries was unconstitutional.

Premier and professor disagree

On Thursday, ahead of a meeting with representatives of FANE, McNeil told reporters the government did not believe the change to the boundaries was unconstitutional, "nor did the court."

"The court did not rule on the constitutionality of that. What the court ruled on is that the [former] attorney general interfered when he shouldn't have. That doesn't mean that it's unconstitutional."

But Dalhousie University law school professor Wayne MacKay said the ruling means the final report produced by the commission in 2012 and any legislation stemming from it could also be found to be unconstitutional.

"[The court] may not have directly addressed that, because it was not before them, but if in fact that process was an unconstitutional process and did not follow what the Supreme Court of Canada said, then anything that flows from that would also be unconstitutional," he said.

By extension, MacKay said that means the ruling could be applied to say the new boundaries are unconstitutional.

"The constitution always applies to the laws of the land and the constitution is the prime directive. It's the law that determines everything else."

A positive meeting

Acadian Affairs Minister Michel Samson said the government remains committed to properly consulting with the Acadian and African Nova Scotia communities about what they see as effective representation in the legislature before going ahead with a new boundaries commission, although that work won't happen before an election.

A protected African Nova Scotia district was also eliminated in 2012, although no court challenge was filed for that change.

Following Thursday's meeting with members of FANE, which lasted about an hour, Samson said things went positively, but gave few other details, including whether the government had done enough to dissuade the group from going ahead with any legal action.

"The fact that we're still in discussions, I think, is a positive thing. I'm not going to prejudge what the final outcome will be."

No comment from FANE

The two sides agreed to meet again once FANE's board of directors has a chance to meet, said Samson.

Representatives for FANE left the meeting without talking to reporters.

A representative would later only confirm that board members would meet to decide their next step.