Okay, absolutely.
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, which are enacting legislation and acting as a check on executive power. As a result, in interpreting any proposed measure, courts would consider whether it furthers or hinders the fundamental functions of the House to deliberate, legislate and hold the government to account.
For these reasons, if the House of Commons were to amend its Standing Orders to allow for the virtual presence of its members, this would, in my view, fall within the four corners of section 48 of the Constitution Act, 1867, which requires the presence of 20 members for quorum.
Section 48 of the Constitution Act could be interpreted using the dynamic “living tree” approach to the Constitution to count members present via video conference or teleconference toward quorum. As well, such an interpretation would arguably be consistent with democratic principle and the internal architecture of the Constitution enabling the legislative branch of government to continue to exercise its fundamental functions in the midst of a pandemic.
The determination of how the House counts the constitutionally mandated presence of 20 members is within the already established parliamentary privilege over debates or proceedings in Parliament, including the day-to-day procedures in the House. Once a privilege is established, Parliament, not the courts, must determine whether, in a particular case, the exercise of the privilege is necessary or appropriate.
By applying these principles to section 48 of the Constitution Act, 1867, the courts could ensure that the constitutional mandatory requirement of 20 members being present to constitute the House is respected, while leaving to the exclusive jurisdiction of the House the procedural aspects of quorum, such as the nature of the presence of a member to be counted towards quorum.
Under this approach, the standing orders or sessional orders of the House would state expressly that the House, in the conduct and control of its procedure and proceedings, was putting in place and endorsing internal procedures to implement section 48 of the Constitution Act, 1867.
Of course, it's possible that a court could disagree with this interpretation. In that scenario, the most serious implication of a court not finding a House proceeding to have the mandated quorum via virtual presence would be that what was adopted in the impugned proceeding could be invalidated.
To mitigate against this, the House could ensure that 20 members are physically present in the House for any votes on legislation or on substantive motions. As well, section 48 of the Constitution Act could be amended to state explicitly that virtual presence is presence for such purposes.
The order of reference to this committee also instructed it to consider the possibility of sittings in alternate locations.
I will briefly conclude by saying that on the issue of alternate location, section 16 of the Constitution Act states that Ottawa is the seat of the Government of Canada, but in my view there would be no legal impediment to the House conducting specified proceedings during the pandemic on any premises the Crown would have made—