Procedure and House Affairs Committee on April 21st, 2020

[Philippe Dufresne]

The privilege at issue is the same as the one that was in the U.K., which is the control over the proceedings of Parliament. It is the ability of the House to make determinations about how it's going to operate and how its procedures and usages will evolve with time.

In this respect, the privilege is the same one. It's the exercise of it, how it's being exercised, how different assemblies are choosing to adopt different procedures. That doesn't have to be the same, but what is the same is the autonomy for those decisions that will be respected by the courts.

[Corey Tochor, Conservative, Saskatoon—University, SK]

But the exercise is different. It meets the threshold of the skeleton crew, so that the virtual could take place. Aren't we somewhat still governed—and I know we are—by some of the same conveyances that the British House of Commons is governed by?

[Philippe Dufresne]

My interpretation of privilege is that both the House of Commons here in Canada and in the U.K. have the ability to control parliamentary proceedings and adopt rules. It doesn't say that Canada's House of Commons has to have the same procedural practices and rules as the U.K. House has. They are independent entities.

[Corey Tochor, Conservative, Saskatoon—University, SK]

We can operate differently, but we can't have greater privileges than a member from the United Kingdom, correct? That is as stated in the British North America Act.

[Philippe Dufresne]

Excuse me, could you repeat that, please?

[Corey Tochor, Conservative, Saskatoon—University, SK]

As stated in the British North America Act, we are not to have more privileges or greater privileges than the United Kingdom. Is that correct?

[Philippe Dufresne]

That is correct, but privilege also has its origin in the preamble of the Constitution. The Supreme Court has recognized...and there is the legislative codification of privilege that talks about those privileges that existed in the U.K. in 1867 and so on. However, there are also the inherent privileges from the preamble of the Constitution, and those are based on necessity, what's needed for parliaments and houses to operate.

At the core of that is control over proceedings in Parliament and internal proceedings. There is no question about the the existence of that privilege and that autonomy for the House to make its own determinations about how it's going to operate within the confines of other provisions of the Constitution.

[The Chair, Liberal, Ruby Sahota]

Thank you for that.

We will go to Mr. Turnbull. He his is going to be the last questioner. Then we will move on to committee business.

[Ryan Turnbull, Liberal, Whitby, ON]

Thanks, Madam Chair. I'll try to be quick.

Mr. Dufresne, I'm going to jump right in and ask you a quick question.

Based on what you've outlined in your remarks, I want to see if my interpretation is correct. Is there anything preventing us, legally or constitutionally, from operating virtually at this time?

[Philippe Dufresne]

The only constraint on that is section 48 of the Constitution, which talks about a quorum of 20 members for the exercise of the House's powers. The most likely area where that could be raised in court is the adoption of legislation. However, there is significant leeway in terms of parliamentary privilege, and, as I've put forward, my interpretation is that this provision could withstand the acceptance by the House of virtual presence, but that has not yet been fully determined in court.

[Ryan Turnbull, Liberal, Whitby, ON]

You outlined two options. One would be to amend section 48 of the Constitution Act. The other, which is probably preferred by many for numerous reasons, is to have a separate piece of legislation that would be voted on and would give an interpretation of “presence” as “virtual presence”. Do you see any challenges in moving forward with that?

[Philippe Dufresne]

If you have 20 members physically present in the chamber, there's no question.

If section 48 of the Constitution is amended, there is no question.

If you adopt standing orders or other instruments from the House to say that in the implementation of section 48, the House is deciding to accept virtual presence, in my view, that should be upheld as a matter of parliamentary privilege and as a legitimate interpretation of section 48 of the Constitution, but that has not been fully determined yet.

[Ryan Turnbull, Liberal, Whitby, ON]

Thank you for the answer. I appreciate that.

We talked about parliamentary privilege being a foundation, and it's obviously extremely important to all of us. We place a high value on that. Many of the concerns outlined as to what the challenges might be with implementing a virtual parliament point to some of the areas where those privileges may be infringed upon.

Do infringements on parliamentary privilege not happen all of the time within our normal physical meetings in the House of Commons? I wonder if you could list a few examples of those. Perhaps, Mr. Robert, this would be a question more geared toward you.

[Charles Robert]

In terms of parliamentary privilege, they are generally respected. Much may depend on the member's particular views about what is actually privilege and what deserves to be treated that way. That is where there is a lot of flexibility.

[Ryan Turnbull, Liberal, Whitby, ON]

We certainly would experience some technological challenges and the issues people have raised are certainly important to overcome. I'm wondering whether those would be considered undue impediments to that parliamentary privilege or whether that context would be taken into consideration when implementing a major shift in our practices like this at this time, which is clearly required due to the health crisis we're in.

[Charles Robert]

I think that's a very good question, and it speaks to the challenge that we're facing. We want to guarantee our health safety. We are exploring this as an option for how we might behave. Issues of connectivity in such a vast country with three time zones creates its own set of challenges, and they have to be met.

I think that's one of the reasons why so far we have talked about a gradual approach. I think it's also why the Speaker may have signalled in his comments that there's also a need to be a bit patient and understanding about how we implement and integrate this technology so it becomes an element with which we are comfortable.

Mr. Brassard rightly points out that the work of this committee really is limited to the circumstances of this pandemic, and you have a reporting date by May 15, so the issues of privilege may not be finally resolved by the time you are able to prepare a report for submission to the House.

[The Chair, Liberal, Ruby Sahota]

Thank you so much.

That ends our time for our witnesses and for the members' questioning. I'd like to thank all three of our witnesses for appearing before committee. Also, thank you very much for offering to appear from time to time and for answering the committee's questions, whether it be verbally or through writing. We will appreciate that help.

I think we should move on into committee business. We have very little time left.

First of all, we need to formally adopt a witness list. The members have been provided a consolidated list by party and a second document, as well, with a list that's been scheduled into thematic panels. That is what we had agreed on in meeting one of this issue, that we would group our witnesses thematically. I think that was a very helpful suggestion, because it helped the clerk and me to group some of the witnesses together.

I wanted to see if we have agreement for the most part on the witnesses that we have before us and the working plan that we have.

[Blake Richards, Conservative, Banff—Airdrie, AB]

Madam Chair, I have a couple of observations on these. It's the meeting for this Thursday that I'm referring to, first of all.

[The Chair, Liberal, Ruby Sahota]

It's on the 23rd, yes.

[Blake Richards, Conservative, Banff—Airdrie, AB]

I note that we have one witness on the first panel; and on the second we have five and some fairly significant witnesses all grouped onto one panel, not that I'm necessarily saying the other witness isn't fairly significant.

We might want to look at shortening the time for the first panel and lengthening the time for the second panel; maybe an hour for the first and two hours for the second, rather than the typical, just because of the difference in size of the panels. If there are questions for the five witnesses on the second panel they'll be short-changed in the ability for the questions to be asked and answered.

The other thing I would note is that we have the House administration folks scheduled again on the 30th, immediately following another panel. Why wouldn't we move them to the 5th at the very end of the witnesses? A number of witnesses, I have noticed, have not.... I guess maybe you or the clerk could update us to some degree. Maybe some of them have declined; I don't know.

I know there were a few witnesses who I thought would be quite valuable, and I know a number of other members felt the same way. One would be Audrey O'Brien. Another would be one of the former law clerks, either Rob Walsh or Joseph Maingot. Obviously, we've heard the advice of those who know the current rules, but it would be good to get another perspective, particularly in light of the fact that what we heard today was a bit of a.... The law clerk obviously gave his opinion, but then indicated that he thought maybe others could arrive at a different conclusion. That was the impression I got from his testimony. It might be interesting to get a different perspective. Those would be a couple.

Then there were a couple of others who I know we were fairly keen on being able to hear from: Citizen Lab at the U of T and the Communications Security Establishment.

Possibly we could squeeze in some more witnesses by looking at moving those officials to the 5th, where it would probably be more appropriate anyway.

Those are two observations I hope we can address.

[The Chair, Liberal, Ruby Sahota]

Absolutely, Mr. Richards. Can you tell me which witness you're talking about from U of T?

[Blake Richards, Conservative, Banff—Airdrie, AB]

Yes, it's Citizen Lab. I'm just trying to find it on this list for you. I believe it was on our list that we submitted.

[The Chair, Liberal, Ruby Sahota]

Okay, no problem. I'm going to write it down.

[Blake Richards, Conservative, Banff—Airdrie, AB]

I'm sure it's on there somewhere. I can't locate it at the present time either but it was on our list, I believe.

[The Clerk of the Committee, Mr. Justin Vaive]

The full list with all the names that were received by the different parties was on the first document that was provided in the email, the consolidated list.

The document, Mr. Richards—correct me if I'm wrong—that you're working off is the one that breaks down some of the witnesses into panels. Not all the witnesses were slotted into each of the panel sessions for the meetings. It's in the interest of keeping panels at a manageable size for the most part.

Absolutely, though, if there are any substitutes, changes or additions that any member would like to make to the panel from the consolidated lists, as long as we're keeping the panels around four, five, maximum six, that's completely okay. It's up to the committee to decide.