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.