Thank you, Madam Chair and members of the committee, for your invitation to appear today in the context of this important study on ways in which members can fulfill their parliamentary duties during the COVID-19 pandemic, including through sittings in alternate locations and technical solutions such as a virtual parliament.
As law clerk and parliamentary counsel of the House, I am pleased to be here today to address the legal and constitutional considerations that arise in this context. I hope that my advice will assist the committee in its work.
As noted by the clerk, particularly relevant to this study is section 48 of the Constitution Act, which specifies that the presence of at least 20 members shall be necessary to constitute a meeting of the House for the exercise of its powers.
My remarks today will focus on section 48 and its implications for a virtual Parliament.
At the outset, I want to note that section 48 applies only to meetings of the House for the exercise of its powers. As a result, it doesn't apply to committees of the House such as your committee or the new COVID-19 committee.
With respect to the application of section 48 to House proceedings, I'll make three general points.
First, courts have recognized Parliament's autonomy and exclusive jurisdiction with respect to its proceedings, which include the Standing Orders, sessional orders and Speakers' rulings. Consistent with the separation of powers, courts will be very reluctant to get involved with anything relating to parliamentary procedure and practice.
Second, while courts have determined that they will not get involved with the process leading to the adoption of legislation, they will be prepared to review enacted legislation to ensure that it is consistent with the Constitution.
Third, courts have held that the Constitution is a “living tree” and must be capable of adapting with the times by way of a process of evolutionary interpretation that accommodates and addresses the realities of modern life within the natural limits of the text.
While the question has not yet been decided by courts, in my view, if the House were to amend its Standing Orders and adopt a sessional or special order to accept the virtual presence of members for the purpose of quorum, such a procedural decision would be constitutionally valid, as it would fall within the House's exclusive jurisdiction over the management of its internal parliamentary proceedings and in any event would meet the requirements of section 48 under a modern and contextual interpretation of the word “presence”.
That said, should the House wish to remove even the possibility of a legal debate on the matter, the House could decide to hold votes on the adoption of legislation with the physical presence of at least 20 members.
Lastly, Parliament could amend section 48 to indicate that, for greater certainty, virtual presence is considered presence for the purpose of section 48.
My first point relates to parliamentary privilege, which is the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions.
Courts in Canada, the United Kingdom and the Commonwealth have consistently held that parliamentary privilege is part of the law, has constitutional status and includes control by the Houses of Parliament over debates or proceedings in Parliament, as guaranteed by the Bill of Rights of 1689, including day-to-day procedure in the House.
In the recent decision of Mikisew Cree First Nation v. Canada, the Supreme Court majority held that the law-making process is largely beyond the reach of judicial interference; that it's for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate; and that the existence of this privilege generally prevents courts from enforcing procedural constraints on the parliamentary process.
As a result, the House's internal procedures and rules, as contained in the standing orders, sessional or special orders or speakers' rulings, are protected by parliamentary privilege and can't be questioned by the courts or any place outside Parliament. While courts won't review parliamentary procedure, they'll consider enacted legislation to ensure that it meets the requirements of the Constitution. This includes the charter, the division of powers, or manner and form requirements such as the official languages requirements in section 133, which led to legislation being declared invalid in the Manitoba language reference. In the Mikisew Cree case, one of the justices suggested that section 48 could be another such provision.
In this context, the issue would be whether section 48 would allow the House to accept virtual presence as presence for the purposes of quorum when the House votes on legislation.
In my view, a strong argument can be made that the House could do so, for the following reasons. It is an accepted principle in Canadian constitutional law that the Constitution should not be viewed as a static document but as an instrument capable of adapting with the times by way of a process of evolutionary interpretation, within the natural limits of the text which “accommodates and addresses the realities of modern life”.
In other words, as held in the famous Persons case, the provisions of the Constitution are to be interpreted in a manner that is flexible and reflects the contemporary context. They have been compared to a living tree capable of growth and expansion within its natural limits and are not limited to a narrow and technical interpretation or construction.
In addition to the “living tree” approach, the Supreme Court has also underscored that the Constitution must be interpreted in a manner consistent with its internal architecture and the principles that underpin it.
In the Quebec secession reference, the Supreme Court noted the following in particular:
Democracy is a fundamental value in our constitutional law and political culture.
It also added the following:
The principle of democracy has always informed the design of our constitutional structure, and continues to act as an essential interpretive consideration to this day.
The speaker referred to this as a cornerstone of democracy.
In the Chagnon decision, the Supreme Court reiterated the fundamental constitutional functions of legislative bodies and their members—
