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.