Procedure and House Affairs Committee on April 23rd, 2020

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you very much to all members of the committee.

Mr. Patrice, do you remember what I was asking when we ran out of time, and could you respond to the question about physical distancing for table officers and others?

[Michel Patrice]

Yes. In relation to the table officers, you will have noticed that we have moved the table officers farther down the table. The spacing between them exceeds the two metres.

I think you were probably also commenting in terms of when people move around. On that I'm going to say, and it's true for me too, that we all have to adjust and be aware. It's always a question of self-awareness and where we're located in relation to another person, so we remind our people quite often and ourselves also.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

It is the case, of course, even meeting in the scaled-down numbers that we had on March 24 and April 11, that every time is a risk. I certainly feel Rachel Blaney's pain on this point. I just booked my travel to get to Ottawa for the Wednesday sitting next week. Normally I could travel it in one day, but now it's a day-and-a-half trip, involving driving to Vancouver and taking the ferry in order to make the plane. There are going to be additional risks for MPs to travel during a pandemic.

To the point around actual physical distancing in the House, I worried on Monday that pieces of paper are physically handed to the Speaker. Clearly, we're not keeping physical distancing at all times and people aren't wearing masks in the chamber. When we lose physical distancing, should we be wearing masks in the chamber?

[Michel Patrice]

I believe that would be a question for Dr. Raymond.

[Dr. Barbara Raymond]

Our public health advice is that if you are unable to consistently maintain a two-metre distance between individuals, we recommend the wearing of a non-medical mask or face covering. That measure protects others, by containing respiratory droplets and preventing their spread, rather than protecting the wearer of the mask. It is an additional measure that can be taken if you are unable to maintain appropriate physical distancing.

[The Chair, Liberal, Ruby Sahota]

Thank you. That's all the time we have.

I want to thank the whole committee for its consideration in allowing Ms. May to ask her questions.

You've definitely been very dedicated to stick around for all of the meetings we've had. We thank you for joining us.

Now we will take a eight-minute break so we can change the panel around. This is just a suspension. We'll all be back at 12:30, please.

Thank you.

[Dr. Barbara Raymond]

Thank you.

[The Chair, Liberal, Ruby Sahota]

I believe we are just waiting on a couple of members. I don't want to be unfair to anybody. I know that these meetings are going on for longer than usual.

Mr. Richards, Mr. Duncan, are you there?

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

Hi, I'm here.

[The Chair, Liberal, Ruby Sahota]

Okay, perfect.

All right, Mr. Duncan are you there?

Mr. Gerretsen?

Seeing that is 12:31 and we have a jam-packed panel, I'd like to resume as quickly as possible. I hope Mr. Duncan and Mr. Gerretsen are close by and can at least hear.

Welcome back. We're going to get started.

Everyone, I just want to remind you to please click on your screen at the top right-hand corner and ensure that you are in gallery view. This view is best so that we can all see each other at the same time.

As a reminder, all comments are to be addressed through the chair. When speaking, please speak slowly and clearly. When you are not speaking your mike should be on mute. Everyone has actually done an excellent job on this portion of it in the last few meetings, but it's the "unmutes" that we sometimes seem to forget, so let's keep that in mind. Headsets are strongly encouraged.

I'd like to welcome all of our witnesses to our 11th meeting of PROC. We are very honoured to have you all here. You have great expertise that you'll be able to share with us.

Today on the second panel of our 11th meeting, we have Monsieur Marc Bosc, the former acting clerk of the House of Commons; Emmett Macfarlane, associate professor, University of Waterloo; the Honourable Peter Milliken, former speaker of the House of Commons. Welcome again.

We also have Monsieur Benoît Pelletier, professor, faculty of law at the University of Ottawa. Last but not least, we have Mr. Gregory Tardi, executive director of the Institute of Parliamentary and Political Law.

Welcome to all of the witnesses. You each have some time allotted. I believe 10 minutes is what you were informed of. I'm hoping some of you will be able to help us out and try to shave off one to two minutes from that 10-minute introductory comment time. Please, if possible, try to do that.

We will start with Mr. Bosc.

[Marc Bosc, Former Acting Clerk of the House of Commons, As an Individual]

Madam Chair, members of the committee, thank you for the invitation to appear before you today.

It's an honour to be invited to contribute to your work.

It is rare that the House of Commons and its committees are confronted with existential issues such as those they are seized with today; hence, there is a need to step back and reflect on the broad principles that you will need to consider in formulating your recommendations.

The Speaker has outlined a series of such principles. The committee should heed these, as they are important reality checks on the practical implications of experimenting with the concept of a virtual House of Commons. I would add one overarching principle—the need to have an active and functioning legislative branch of government during the time of crisis.

In too many countries around the world, dominant executive branches of government eclipse Parliament. This makes parliaments weaker and less relevant. That imbalance needs to be addressed, especially in a time of crisis. The House of Commons needs to be functioning and to be seen to be functioning.

I want to be clear: Parliament, particularly the House of Commons, is an essential service to the country.

Members of Parliament are also essential workers, despite the fact that, in order to meet public health standards, the parties wisely decided to reduce the number of MPs attending the sittings, as did the House administration, limiting the presence of public servants to the strict minimum absolutely necessary for the functioning of the House. I'd like to point out, for information purposes, that the House sat the day after the fire in Centre Block in 1916, and that the House sat the day after the October 22 shooting in 2014.

So it was encouraging on Monday to see the House take steps towards resuming operations. It is a start, but more can be done.

The committee has already been made fully aware of the finite capacity of the House administration to deliver a virtual House on short notice. Indeed, the technical challenges are immense, and were evident at the committee meeting two days ago. Clearly, it will not be possible for all members of the House to participate next Tuesday.

Despite the superhuman efforts by House staff, led on the technical side by Stéphan Aubé's team and on the procedural side by the team of the deputy clerk, André Gagnon, the physical and technical limitations of a virtual House are significant and numerous. I'm convinced that these people will do their utmost to ensure that this project can eventually succeed, but I would ask you to be lenient with them and understand that this is the art of the possible.

Given these realities and the need to fully take into account legal, procedural and constitutional considerations, it would be preferable to move quickly to a hybrid model of House sittings. By this I mean in-person sittings augmented by virtual participation, for which the number of attendees would gradually increase as the House administration's capacity increases. As has been done so far, in-person sittings conducted with limited attendance that respects the proportions of the House obviates any concerns related to sections 16 and 48 of the Constitution, namely Ottawa as the seat of government and the need for a quorum.

As an aside, I am perplexed as to why, for the special committee agreed to on Monday, the quorum is set at only seven, when in reality it is for all intents and purposes a committee of the whole House, where quorum is 20, as it is for the House in full sitting.

A hybrid approach has the benefit of retaining for members and the House the flexibility and agility afforded by in-person sittings, while respecting public health guidelines by supplementing such sittings with virtual participation that has the added benefit of safely ensuring cross-country representation. That virtual participation will increase in numbers and efficiency over time. This way, Canadians will continue to see the physical House in action on a regular basis, will be reassured to see that their key democratic institution is functioning and thus that a return to normalcy is beginning ever so modestly. Public confidence is increased by a regular and visible challenge to the actions taken by the executive. As representatives of all parties and regions are heard, all Canadians will feel that their views and concerns are being expressed.

Naturally, there are still countless procedural details to be considered, particularly for virtual sittings. How will the Speaker know which minister will have the floor during a virtual question period? How will points of order and questions of privilege be handled? What happens to questions and comments in the context of a debate? What about recorded divisions? The list of questions goes on and on.

However, I have every confidence that the procedural services team will be able to support the Speaker and the House in coming up with creative solutions to the majority of these issues. One thing is clear, though: any approach will require collaborative, patient and constructive input from each party and all members of the House. Things can and should be simple so that we can focus on the real function of our assembly: to legislate, to study the business of supply and to hold the government to account.

With regard to votes, one possible avenue to explore is to build on the existing practice of applied votes by the whips, which is already routinely used, mostly in instances where the House is faced with large numbers of votes. On the other hand, if a purely technological solution is preferred, I am sure that House procedural and technical staff could advise the committee on how to devise a method of remote voting for virtual participants.

These are just a few of the issues the committee and ultimately the House will need to consider in the days, weeks and months ahead. A deadline such as that imposed on this committee in the current context is not realistic, in my view, if the committee wishes to thoroughly explore the subject area of virtual sittings. It is an extremely complex issue with broad implications, and would benefit from a longer, more in-depth study. As such, the committee may wish to present an initial report and then continue its consideration of this subject matter beyond the terms of its order of reference.

That brings my remarks to a close.

I'm available to answer any questions you may have.

[The Chair, Liberal, Ruby Sahota]

Thank you, Mr. Bosc. We appreciate all of your experience and your many appearances before this committee in the past.

Mr. Macfarlane, please.

[Emmett Macfarlane, Assistant Professor, University of Waterloo, As an Individual]

I want to thank the committee for inviting me to join you today. In the written submission I provided, I outline a short set of disparate constitutional issues and principles that I hope will guide your decision-making on virtual activities in the House.

A key concern about Parliament's role during the pandemic is that all MPs be able to participate as fully and as practicably possible. Because in-person meetings of the full House are not possible, and possibly for quite some time, this means undertaking a serious consideration of the full range of virtual activities, including remote voting.

A skeletal parliament is not a substitute for the breadth and depth of debate and deliberation, question posing, and responsibility to vote on bills and motions by all of our elected representatives, be they members of recognized parties or independents.

Another reason for concern about the skeletal parliament so far is that it has not ensured that all regions and provinces are properly represented. While the Senate is properly regarded as the chamber of regional representation, and so regional or provincial representation within the House is not necessarily a formal legal requirement for any given sitting, ensuring such representation in the House is consistent with the broader principle of federalism and certainly from a political and legitimacy perspective.

Moreover, as central as political parties are to our system, our House of Commons is ultimately founded upon elected representatives at the riding level. No voters in any riding deserve to have a representative who can only fulfill part of his or her ordinary role. Maximizing what can be done virtually is the best way to facilitate full participation during this ongoing emergency.

One of the biggest obstacles to online voting by members is possibly the Constitution. Although much virtual activity may be facilitated by changes to the Standing Orders, permitting distance voting likely requires a formal amendment to the Constitution Act of 1867, by virtue of the language of sections 48 and 49 in particular. Section 48 refers to the “presence” of members “necessary to constitute a Meeting of the House for the Exercise of its Powers”, and the language of section 49 certainly implies a physical presence in the House for voting purposes. However, Parliament has clear authority to amend these provisions unilaterally under our amending formula. As a result, the necessary amendments to facilitate online voting by MPs can be brought into effect by an act of Parliament.

Another obstacle suggested by some commentators is that meeting virtually clouds the application of parliamentary privilege. It is true that courts have been reluctant to expand the scope of privilege beyond parliamentary activities. In determining the scope of privilege, however, courts have quite consistently framed their analysis in terms of the sphere of activity or the content of the parliamentary function, not the venue or process by which that activity is pursued.

While I am not an expert on parliamentary privilege specifically, it is difficult to see how privilege would not extend to the core parliamentary duties of individual members if conducted in a virtual context. Nonetheless, formalizing virtual processes through changes to the Standing Orders or even the Parliament of Canada Act may help to ensure that such activities are regarded by the courts as being core to the formal legislative process.

As for practical and technological considerations, it's clear that there's a lot to be worked out. My political science colleague Nicole Goodman, and others, have written about how something like distance voting can be facilitated. It is even a recommendation by a recent report of the Commonwealth Parliamentary Association. Samara Canada has discussed some of the other challenges as well, but I agree with its position that these can be worked out.

I do think that formalizing provisions to enable virtual activities, including voting, is important not only for the next months but also as a future contingency. At the same time, however, I think that any changes to the Standing Orders or to statutes like the Parliament of Canada Act or even the Constitution Act that aim to facilitate virtual processes should be framed explicitly as emergency measures.

Provisions for virtual participation should be regarded as a temporary stopgap measure to ensure Parliament can continue to play its fundamental role to the best degree possible, but they cannot replace an in-person Parliament during normal times.

Finally, I do not have any opinion about the frequency of sittings of the House during the pandemic. There are clear reasons in favour of ensuring Parliament continues to sit and that its activities be as robust as possible, but the number of days per week or the length of any breaks in sitting are hardly scientific propositions, in that they can be left to the resolution of the various parties.

I'll leave it at that for now. I look forward to your questions.

[The Chair, Liberal, Ruby Sahota]

Thank you, Mr. Macfarlane.

We appreciate all the witnesses who have submitted written submissions to the committee. Those are valuable as well.

We'll move on to the Honourable Peter Milliken, please.

[Peter Milliken, Former Speaker of the House of Commons, As an Individual]

I'm not much of an expert on this subject, but having said that, I have recently, as a member of various boards of community or charitable organizations, had to attend a lot of meetings in this kind of format. I have actually done quite a number in the last few weeks, never mind the months before, because sometimes they have their meetings in this fashion.

By that, I mean they are like the one we have now, where you can see everybody on the screen or see their name, which in my view is quite an important part of this and would be very difficult, in my view, for sittings of the entire House. Having over 300 people on your screen is not going to work. It would be tricky, to say the least.

In thinking about this when I was asked to make some submissions on this subject, I thought the first thing I would say is that in my view this could work for committees, and I think it could work reasonably well. If a committee wants to have a meeting and consider legislation, they could have a meeting somewhere on Parliament Hill in one of the committee rooms with a few MPs present who happen to be in town or whatever, and then have all the others connected on one of these devices and continue a fairly normal meeting that way.

I say “fairly normal” because the chairman of the committee can see who is there, members can indicate by holding up their hand that they wish to speak next, which we do on some of the boards I sit on, and the chairman of the committee can recognize the person who wishes to ask a question or make a statement and then move on to the next, and so on through these proceedings.

However, in a meeting of the House of Commons, that is going to be extremely difficult when you have so many people potentially wanting to participate at different times and on different things, and where you are going to have votes that are going to have to be counted by somebody who can watch the pictures of the members and then get a vote. It's going to be a very complicated process, and not one that I think is going to be terribly helpful, but as some of the others have suggested in their comments, if we have a situation like the current health situation in the country, we need to be able to have Parliament continue to do at least some of its functions and to deal with important legislative matters. Maybe this is the only way to do it.

The other part of this that I'm particularly concerned about is how the Speaker is to choose from this kind of screen arrangement persons to speak and ask questions and all of that sort of thing. As I've said, in a committee where you have a fairly limited number of participants it's not so bad, but in the full House, how is the Speaker to know who is going to be next and from which party and all that sort of stuff?

Yes, in question period, we have an order by party and so on, but you would need to find out who is going to be the one asking the questions, and there are points of order that come up from time to time as well. How do you have a member indicate that he or she wishes to raise a point of order or a question of privilege and signal that to the Speaker in a way that might attract attention on a screen of this kind when you have that many possible people on the screen? It's going to be very difficult to catch this, I think, but I'm not an expert on this topic.

[The Chair, Liberal, Ruby Sahota]

I just wanted to say, Mr. Milliken, that there is another function. I don't know what application would ever be used for a virtual Parliament, but right now we're using Zoom for committee. You don't just have to signal. There's also a button you can push to raise your hand. It gets prioritized according to who raises their hand first. I think there are some unique solutions being discovered at this time.

[Peter Milliken]

Yes, I agree. Almost all of my meetings have been Zoom meetings, and so I feel fairly familiar with this in some ways. But, as I say, when it's a much bigger screen with potentially 10 times as many people at least on there, it's going to be very difficult to examine it and see who's popping up, unless there's some technology allowing people who push the button to get their intervention to the front....

The other thing I've noticed in our meetings is that you can turn off your mute button and then start to speak. Members were interrupting one another frequently in these board meetings, not intentionally, but two or three would start speaking at the same time and then the chair had to calm them down, choose one, and say, “You're going first and others please be quiet”. It's not a straightforward process. I'm just concerned, as the means of dealing with a large number of people, that it's going to be even more difficult for that.

What could happen, as what happens in the House, is heckling. You push off your silent button and start heckling the member who's making a speech if you disagree with what he or she is saying or want to challenge the member. You could have a whole bunch of people doing that at the same time, because once one starts, others would respond by saying, “You're not supposed to be speaking. Shut up.” All that sort of stuff can go on, as happens in the chamber. It would make it very difficult, I think, for the presiding officer on a screen of this kind to manage the disorder. It's a numbers game, in my view, that is important here.

The other possibility is that when there is a crisis like this, there could be some worked-out arrangement whereby the House would only sit for, say, a day a week, and on those days, new legislation could be introduced and referred to committees right away. Then the next week, more of that, but then maybe some committee reports would come back with suggested changes to the legislation that could be adopted. Then, if the parties agree, there could be a vote on third reading or second reading, with approval of the amendments, whatever, and then get on with it without having lengthy debates at those stages of the bill. That could happen too. There might be some willingness to do that, at least on matters of national importance that Parliament might have to deal with, where we're not sitting for three or four months because of this infection.

I think those are possibilities for avoiding lengthy chamber sittings. This would also mean that most of the work done on computers would be committee work. As I say, I think committees could function reasonably well compared with the House, given the size. A committee could have a meeting, as we're having here now, because parties could express their views. Each of the members would get his or her say, witnesses could be called and questioned by the various members, and the chairman of the committee could see who's next by the colours that light on people's screens if they push the button. It would be relatively easily managed because of the much smaller number.

I say that, having sat on these boards and watched. It's not that I'm wildly in favour of this method instead of an in-person meeting, but it's not that bad, in my experience, except for the fact that we do have a lack of control in who speaks. A bunch of people can speak all at once, and you then have to have somebody say, “Wait, we have to hear one first, because we can't hear everybody at the same time”, and calm them down. That happens in the House too, but it's a different situation there.

Those are the points that I thought I'd suggest here. Obviously, there's going to have to be some good process for identification of the person, a picture or a camera that picks people up. That needs to be part of the process, in my view, so that we can see who's there doing the talking and that it is not somebody substituting for the member.

I think it's important, too, that the options for intervening in debate should be somewhat limited if the debate is taking place in this format.

We don't need to have lengthy questions and comments at the end of a member's speech. We don't need to have questions of privilege or points of order raised frequently, which could happen, but some of that will happen without much control. It's an issue that's going to have to be dealt with. It might be a little harder for the Speaker to deal with, because you can't always see what's going on in the background with the person appearing. There could be other people in the room with the MP speaking who are yelling at him or telling him to do something else or passing him notes, and this could cause consternation among some of the people watching.

I think it's an area of potential crisis or a problem, but one that may be important from a House perspective, as we have this lengthy period during which we will not be meeting or close to somebody because of this ailment that our country and much of the world are suffering from at the moment—

[The Chair, Liberal, Ruby Sahota]

Thank you very much, Mr. Milliken. We are so honoured to have you with us here. Presiding over four Parliaments is indeed no small feat, so it's wonderful to have you on the panel.

I'm also learning, as we go, how to use some of the features of what we're using right now in Zoom. We have the capability of muting people or turning their mikes on when needed, so you can have that control, which I think is a great ability to have in some of these meetings when there are a lot of people. I definitely hear everything else that you're saying, though. There are many challenges involved.

Next we will hear from Mr. Pelletier, please.

[Prof. Benoît Pelletier, Professor, Faculty of Law, University of Ottawa, As an Individual]

Thank you for inviting me to this meeting. I am very honoured.

I feel a bit like I'm involved in the creation of new rights. I must say that I have approached today's topic from a constitutional perspective. I am better known as a constitutionalist than as a legal expert in other areas.

I have been thinking about whether the work of Parliament could continue virtually in a much more comprehensive way than what Mr. Milliken has just set out. I very much appreciate his practical approach. Only a former Speaker of the House of Commons has that kind of knowledge. It is knowledge that I do not have.

For my part, I approached the issue from a constitutional law perspective and focused on the House of Commons, meaning that I did not focus on the Senate. Although my review has focused on the House of Commons, my comments are applicable mutatis mutandis to the Senate of Canada.

For my study, I examined a number of normative sources. Obviously, I examined the Constitution Act, 1867, the Constitution Act, 1982, the Parliament of Canada Act, the Canada Elections Act, the regulations developed by the House of Commons itself, case law, and constitutional conventions, which are extremely important in parliamentary matters.

I can tell you at the outset that I have found no constitutional constraint on the work of the House of Commons taking place virtually. The conclusion I have come to is that there is absolutely nothing in the Constitution that prevents virtual proceedings from taking place. However, there are a number of principles in the Constitution that must be respected. To the extent that they are respected, the work of Parliament can be conducted virtually.

I remind the honourable members that, even if the Constitution were to contain inescapable requirements or conditions with respect to parliamentary proceedings, there is always a possibility for the Parliament of Canada to amend certain constitutional provisions.

One of the inescapable conditions laid down in the Constitution is, of course, the obligation for Parliament to hold at least one sitting once a year. This follows from section 5 of the Constitution Act, 1982.

Second, the maximum term of office of the House of Commons is five years, with a few exceptions provided for in the Constitution. This follows from section 4 of the Constitution Act, 1982.

The Speaker of the House must preside at all sittings, according to section 46 of the Constitution Act, 1867. A quorum shall consist of 20 members, the Speaker being counted as a member, according to section 48 of the Constitution Act, 1867.

Questions must be decided by a majority of votes, according to section 49 of the Constitution Act, 1867.

English and French must be used in the debates, records, minutes and journals of the House of Commons, according to section 133 of the Constitution Act, 1867.

The Governor General has the power to dissolve Parliament at any time under section 50 of the Constitution Act, 1867.

The principle of responsible government must be respected. It is a constitutional convention that has probably acquired a supra-legislative status over time. It must be respected.

Immunity from speeches made in the House remains. This means that the absolute immunity that members enjoy in respect of what they say or do in the House remains, because that immunity relates to the proceedings of the Legislative Assembly and not to the physical place where it is usually held.

It is therefore aimed at the proceedings, not at the areas within a building. It also applies to the proceedings of parliamentary committees.

I also note in passing that under sections 7 to 9 of the Parliament of Canada Act, the immunity enjoyed by the broadcast of parliamentary proceedings must also be respected and must remain an essential feature of the House of Commons.

I also note that there must be a publication of parliamentary proceedings, pursuant to the Publication of Statutes Act and the Department of Public Works and Government Services Act. Of course, the duties of the Parliamentary Protective Service do not change. The Parliamentary Protective Service is responsible for security throughout the parliamentary precinct and on Parliament Hill.

However, two considerations are, in my opinion, a little more difficult to combine with the holding of parliamentary proceedings in a virtual way. The first consideration is the public nature of the House. I believe that it is the very essence of the House of Commons to have that public character. The House of Commons has a legislative function and a deliberative function. It also has the function of controlling the government. However, we must not forget that it also has the essential characteristic of having a public nature. If ever the business of the House proceeds virtually, it will be necessary to ensure that this public nature of the House of Commons is respected.

The last condition, as you may have guessed, is of course the media. It is absolutely essential that the House of Commons continue its work in front of the media. In the context where the House operates virtually, we have to find a way to ensure that there are no impediments to the media's role, that nothing affects the media's role. Obviously, that is also one of the essential characteristics of the House of Commons.

When I look at the essence of the House, the constitutional provisions applicable to the House, the constitutional conventions and the applicable laws, I see nothing that a priori prevents the business of the House from proceeding virtually. Of course, a number of conditions, which I have just mentioned, must nevertheless continue to be met.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

You're muted, Ruby.

[The Chair, Liberal, Ruby Sahota]

Sorry. We all make mistakes sometimes.

Next but not least we have Mr. Gregory Tardi, please.

[Gregory Tardi, Executive Director, Institute of Parliamentary and Political Law]

I'd like to thank the committee for extending me an invitation to participate in today's proceedings. The chair mentioned that I'm representing the Institute of Parliamentary and Political Law. In addition to that, part of my background is 15 years spent in the office of the law clerk. Hopefully, that will be of some use in this process.

Given the relatively short amount of time available, I'd like to address in summary fashion the terms of reference the committee adopted in respect of today's proceedings. I sent the committee clerk a written version of my more detailed comments. I understand that the document is now being translated.

First of all, I think there is a constitutional foundation for the position of Ottawa as the capital of Canada. That is complemented by the convention that a capital city of a country should be, in normal circumstances, the seat of its government, including legislative, executive and judicial institutions. There exists, therefore, a legitimate expectation that Parliament should meet in Ottawa, but that expectation is refutable. I think I join in the sentiment and some of the comments made a few days ago by Philippe Dufresne.

We can ask, first, what is the work that parliamentarians are asked to accomplish? More to the point, what gives rise to parliamentarians' ability to conduct that work? Recent Supreme Court jurisprudence tells us that members of the House of Commons legislate, deliberate and hold the government to account. The condition precedent to enable MPs to perform these various tasks is the requirement for quorum.

This brings us to what I believe is the core of the issue. This core issue that we're asked to address today is the validity of a proposal to have the House of Commons sit, and to have MPs conduct their work, in what the committee mandate calls “alternate locations”. To some extent, the committee's study may have been overtaken by the House decision, reached on Monday, April 20, to divide its work between in-person sittings in Ottawa and virtual sittings, including other locations in Canada. Nevertheless, the present study is constructive in providing such a decision with a sound footing in law.

The legal validity of the issue of holding meetings involving both Ottawa and alternate locations, or of holding virtual meetings across the country, hinges on the current understanding of the concept of quorum. In my opinion, the essence of the matter is that while the meaning of quorum in 1867 was understood to be simultaneous physical presence of the participants, that is no longer the case today. Considering the advances in technology in 2020, it is possible, and certainly more appropriate, to think of quorum no longer as simultaneous physical presence but as being based on the notion of participation—a virtual meeting of the minds, so to speak—wherever the MPs in question may be located.

This notion of participation as the basis of quorum is in fact supported by legal analysis in two mutually enforcing ways. The first is the purposive approach that has been adopted by the Supreme Court of Canada in recent years. What matters is the general purpose of a rule, such as that dealing with quorum. That purpose must be interpreted according to the real-life conditions at the time the rule is interpreted—that is, today—and not according to the world as it was in 1867. Second, the holding of meetings in alternate locations, or using technology enabling virtual presence, is, I believe, in line with the Supreme Court's understanding of the national emergency branch of the peace, order and good government doctrine.

COVID-19 has incontestably started an emergency and one that is national in scope. The House of Commons, therefore, has the requisite rational basis, I believe, for resorting to extraordinary measures. I submit that the understanding of quorum put forward here is in line with the concepts of parliamentary privilege. The requirements for meetings are part of the internal organization of the House and therefore subject only to House decision-making.

On a separate but related note, the House will have to devote particular attention to other aspects of parliamentary privilege dealing with alternate locations for virtual meetings. Most notably, it would be important for the House to decide whether it considers that privileges of freedom of expression apply to MPs in various locations across the country other than the chamber of the House of Commons situated in Ottawa.

Finally, what appears from the mandate of the committee is that it's very important—and I think Mr. Milliken just underlined this—to understand that the technical support rendering meetings involving alternate locations for virtual meetings must be as absolutely fail-safe as possible. The questions put to the committee today require analysis of several other significant aspects. I examine those in greater detail in my written submission.

I am prepared to answer your questions in English or French, as you wish.

Thank you, Chair.

[The Chair, Liberal, Ruby Sahota]

Thank you so much, Mr. Tardi.

The first questioner is Mr. Richards for six minutes, please.

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

Thanks, Madam Chair.

I've got about four questions, and I want to ask both Mr. Bosc and Mr. Milliken to provide some responses. I'll ask that you give me a yes or no on the first question, and then we can maybe get some brief answers to the other three from each of you.

Mr. Bosc, you indicated in your opening remarks that you thought the idea of virtual sittings might not necessarily be the best idea and you talked about a hybrid model. I'd like to confirm from both of you—I think it was fairly clear in your opening remarks but I want to be sure—that you both felt the idea of the straight-up virtual sittings of all MPs would be pretty difficult or not advisable, given that we're trying to do this fairly quickly when we're looking at hundreds of years of parliamentary experience and we're talking about five meetings to study this.

Was I accurate in portraying your opinions, both of you, that you feel this may be not the best thing to rush into?

[Peter Milliken]

Yes, that's accurate. I'm not opposed to having them but I think they're going to be very difficult to manage properly. So that's why I suggested maybe one or two sitting days a week max where the House would sit and deal with very limited stuff and send a lot to the committees and let the committees keep doing their work. When the House comes back after the illness is finished, the House can meet for longer hours, and deal with all this stuff that has been studied in a much more efficient way than if it waits and deals with it all again when it comes back.