Evidence of meeting #11 for Procedure and House Affairs in the 43rd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was commons.
A recording is available from Parliament.
1:40 p.m.
Liberal
The Chair Liberal Ruby Sahota
Thank you so much.
We're going to carry on with our five-minute round, with Mr. Tochor up first.
1:40 p.m.
Conservative
Corey Tochor Conservative Saskatoon—University, SK
Thank you to the presenters today.
Mr. Bosc, I want to get your comments on rolling out a system that not all 338 MPs could log on to. What would be the impact of rolling out a system that doesn't allow everybody to access it online?
1:40 p.m.
Former Acting Clerk of the House of Commons, As an Individual
First of all, you have to remember that right now all the House has is a special committee that's going to meet three times a week. The House has made a decision that it wants to start that next Tuesday, and that decision has already been made. I think it's physically impossible, based on what I understand, for all members to participate next Tuesday. As time goes by, that capacity will increase, but the House has already made the decision that it's willing to go ahead, despite knowing the issue, so I can't question the House's decision in that respect.
1:45 p.m.
Conservative
Corey Tochor Conservative Saskatoon—University, SK
But if we roll that out, then in a general, practical sense, if everyone cannot access it, that's a breach of privilege to a certain degree.
I'll switch gears a little bit.
On Tuesday I brought up the British North America Act and some of the constitutional issues that we have with the proposal that's going forward. The comment I have goes back to the Constitution. In a manner of speaking, it tethers our parliamentary privileges to those held by the United Kingdom's House of Commons.
Mr. Bosc, is that a fair, layman's explanation?
1:45 p.m.
Former Acting Clerk of the House of Commons, As an Individual
Yes, and I think what Professor Pelletier and Speaker Milliken would say is that those privileges that have been in existence before will continue in a virtual setting as well.
1:45 p.m.
Conservative
Corey Tochor Conservative Saskatoon—University, SK
What does that mean in practice, though? In this case, does it mean that if we become more innovative than our British counterparts, we run the risk of going wide of the constitutional privileges? Is that a concern? How do we tell that we haven't breached our Constitution?
I'm not a constitutional lawyer, but if we're not supposed to exceed the rights of the members of the House of Commons in the United Kingdom, how does that square that circle?
1:45 p.m.
Former Acting Clerk of the House of Commons, As an Individual
I'm going to defer to Professor Pelletier on this one.
1:45 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
I will answer you first in French, then add a few words in English, since I am more comfortable in French, quite simply.
The original rule in the Constitution in 1867 was that the privileges and immunities of the House of Commons should not exceed those of the United Kingdom. This was later changed so that the privileges and immunities of the House of Commons could not exceed those of the United Kingdom when the Canadian federal law determining those immunities and privileges was passed.
Canada can now effectively adopt privileges and immunities that exceed those of the United Kingdom, under section 44 of the Constitution Act, 1982. Therefore, the privileges and immunities now provided for in the Parliament of Canada Act may, in some cases, exceed those of the United Kingdom without being declared unconstitutional.
The privileges that are in the Parliament of Canada Act could exceed those existing in the United Kingdom without being invalid, without being declared unconstitutional, because of section 44 of the Constitution Act, 1982.
1:45 p.m.
Liberal
The Chair Liberal Ruby Sahota
Thank you. That's all the time we have.
Next up, for five minutes, is Mr. Alghabra.
1:45 p.m.
Liberal
Omar Alghabra Liberal Mississauga Centre, ON
Thank you very much, Madam Chair. I want to thank our speakers here today and I want to thank my colleagues on the committee.
I want to emphasize one point. I think we all agree that the role of Parliament is essential and that the job of parliamentarians is essential, and we're trying to sort out how we can conduct our job, given the public health advice. A fundamental part of our job as members of Parliament is to remain in touch with our constituents. However, today we're telling our constituents we can't meet them personally. If you're like me and you're meeting with your constituents daily or regularly over the phone or via social media or email, I think it's incumbent on us to find ways to also conduct our parliamentary duties with some flexibility.
I want to start my questions with Mr. Macfarlane. Can you comment on how you saw Parliament conduct its role in passing Bill C-13 and Bill C-14?
1:50 p.m.
Assistant Professor, University of Waterloo, As an Individual
I think we're into an emergency situation that is less than ideal, and on an emergency basis Parliament did what it could under the existing guidelines for health. I think that moving forward—and this is what the committee is investigating—it's about how we make that a more robust process.
Within the confines of the emergency context, I don't have a lot to criticize in terms of passing needed pieces of legislation. However, what I'd want to see, going forward, is more robust participation for members who could not be physically present.
1:50 p.m.
Liberal
Omar Alghabra Liberal Mississauga Centre, ON
I'll go back to you, Mr. Macfarlane.
We heard from the law clerk on Tuesday basically agreeing with you by saying that the House of Commons is the master of its own domain, so the House of Commons MPs can decide among themselves what the rules are moving forward. He said that it would be constitutional, in his opinion, given the pandemic. Do you have any thoughts on that?
1:50 p.m.
Assistant Professor, University of Waterloo, As an Individual
Yes. The reason I raised the constitutionality issue, and even the idea of constitutional amendment, is really not that I don't think a living tree kind of interpretation would somehow lead the courts to say a virtual Parliament or even virtual votes are not constitutional, because I think as, a matter of expediency, that's how the Constitution will be interpreted. For clarity purposes, it is actually quite important to formalize what we can do and adjustments to certain procedures as much as possible, and that goes from more specific measures in the Standing Orders to bigger Constitutional clarifications.
I agree with everything that Mr. Tardi was saying about the purposive approach to understanding the Constitution, but the Constitution was written with certain assumptions. Certainly, the assumption of the founders of the 1867 document were that Parliament was an in-person, one-place process. I see no reason why this is not an opportunity to use the amending formula for Parliament itself to clarify and provide clarity to these options even within the act itself.
1:50 p.m.
Liberal
Omar Alghabra Liberal Mississauga Centre, ON
Madam Chair, I'd like to pass the rest of my time to my friend and colleague Mr. Gerretsen.
1:50 p.m.
Liberal
Mark Gerretsen Liberal Kingston and the Islands, ON
Thank you very much.
Mr. Bosc, going back to your hybrid model, you talked about how slowly, as time went on, you could introduce more people back into the House. How would you recommend that decision be made as to who is worthy of being in the House and who still has to continue on the other side of the hybrid?
1:50 p.m.
Former Acting Clerk of the House of Commons, As an Individual
At present, parties already manage the participation of their members. That's already happening. They do.
1:50 p.m.
Liberal
Mark Gerretsen Liberal Kingston and the Islands, ON
That's been done through practice, though. Party whips will provide lists to the Speaker.
1:50 p.m.
Liberal
Mark Gerretsen Liberal Kingston and the Islands, ON
That's an established practice. That happened just before Speaker Milliken came along. We're talking about physical presence in Parliament; we're not talking about who's next on the list to speak.
1:50 p.m.
Former Acting Clerk of the House of Commons, As an Individual
Right. I don't think that you could absolutely prevent any member wishing to attend the House from doing so.
1:50 p.m.
Liberal
The Chair Liberal Ruby Sahota
That's all the time we have, unfortunately.
Next up is Mr. Brassard for five minutes.
1:50 p.m.
Conservative
John Brassard Conservative Barrie—Innisfil, ON
Thank you, Madam Chair.
The question that the committee is seized with on this issue is the temporary nature of what it is that we are to recommend. I think I've heard from several of you this afternoon that having until May 15 is not enough time.
It came up the other day in our meeting that, not only are we looking for a temporary measure during the height of this public health crisis to try to come up with some model, but we're also thinking about the future and what trigger points would exist in order to move us to virtual sittings in the event of another pandemic, for example.
I know, Mr. Bosc, you talked about this being temporary. What potential danger is there going forward if, in fact, changes to the Standing Orders are made and those changes are made by the government of the day to reflect a more permanent aspect of these types of virtual sittings compared to the model that we have right now?
1:55 p.m.
Former Acting Clerk of the House of Commons, As an Individual
I have a deep respect for the institution of the House of Commons. I think, as I mentioned in my opening remarks, an overarching principle that the committee should be guided by is the importance of having that physical gathering of members in Ottawa. I think that it is extremely important for citizens to be able to see their institution at work in a particular setting they are familiar with. Visually it's impressive; it gives it the gravitas and importance it deserves.
The trappings are important, I'm not going to lie; otherwise, every day's press conferences would take place by Zoom, the way we're doing this meeting, but they're not happening that way. There are elements of having that particular setting that give importance to the activity. I think that's something you need to consider.
1:55 p.m.
Conservative
John Brassard Conservative Barrie—Innisfil, ON
I think another aspect of that too—and we're seeing this on the committees as well, so I address this to you, Speaker Milliken—is the committee structure right now doesn't have the same formal process under the Standing Orders.
For example, we can't compel the government to provide documents. We can call witnesses. We've seen on the health committee where those witnesses don't want to come, but it's almost turned into a seminar process where we're hearing things but we're not charged with doing anything, at least on some of the other committees. The same thing can be said about the opposition. To Mr. Bosc's point, the opposition is becoming an audience as opposed to an opposition that questions the government.
Former speaker Milliken, how important is it that the committee structure maintain the same order as it does normally if Parliament were sitting, if we move to this virtual setting, and how important is that opposition in holding the government to account?
1:55 p.m.
Former Speaker of the House of Commons, As an Individual
I don't think there ought to be limits on a committee's power to call witnesses and stuff, regardless of how they're sitting, whether it's in person or whether it's a screen like this, because they can perfectly easily hear witnesses as you've just done this afternoon from us here. I think that's a reasonable way to go at it.
For a smaller group it's not a bad function, particularly for committees that are having meetings with others. They may not feel safe to bring them into their space where the people don't want to go and where the costs of flying to Ottawa and giving testimony here prohibit them from that.