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.
Former Acting Clerk of the House of Commons, As an Individual
I don't share your concern at all on that point.
Assistant Professor, University of Waterloo, As an Individual
I would just add quickly, that's the reason to try to maximize what can be done virtually.
Liberal
Mark Gerretsen Liberal Kingston and the Islands, ON
Right, but what I'm getting at is that it really comes down to everyone being treated fairly, not certain people being treated differently.
Bloc
Christine Normandin Bloc Saint-Jean, QC
Thank you very much, Madam Chair.
First of all, I'd like to thank the witnesses for being here. I feel particularly fortunate to be able to speak to them.
I'm going to give a little preamble before I ask my first question.
One of the parliamentary privileges of members is to come to the House to speak. However, in the context of the crisis, some members who are older or in poorer health may decide not to go and prefer virtual sittings.
However, my question is the other way around. Some parliamentarians have said that being there remotely or virtually can help us exchange notes and receive suggestions for answers, so there would be less accountability.
Is there a form of parliamentary privilege where, even if our question goes through the Speaker, we can expect the person answering it to be physically in front of us?
Former Acting Clerk of the House of Commons, As an Individual
I understand you have a concern that someone might get help before answering a question.
In the normal sittings of the House, that's the way it happens already. Ministers can receive emails or text messages. They have notes in front of them. They regularly receive outside help to answer questions. I don't really see a difference between a virtual situation and a situation where members are physically present.
Bloc
Christine Normandin Bloc Saint-Jean, QC
I understand from one of the witnesses that section 49 of the Constitution Act, 1867, which deals with matters arising in the House of Commons, implies that members must be physically present. In the definition of the House of Commons in that section, does it refer more to a physical place than it does to the concept of the presence of members together?
Professor, Faculty of Law, University of Ottawa, As an Individual
I'll answer you, if I may.
You have to go back a little bit to the meaning of a parliament. A parliament is first and foremost an assembly, or a meeting of people who exercise the legislative function. In this case, the physical location is of secondary importance. The essence of what a virtual assembly is can be fully respected as long as, as I said, a number of conditions laid down in the Constitution are met.
In the specific case of section 49 of the Constitution Act, 1867, physical presence is not required. It simply imposes a rule for the holding of votes, but there is nothing to say that these votes can't be taken virtually. It says that the majority vote prevails, and that only in the event of a tie vote can the Speaker vote.
Bloc
Christine Normandin Bloc Saint-Jean, QC
Thank you very much.
If a legal fiction were to be created about the House or even the Constitution Act amended, I understand that under section 44 it would be possible to do so by a simple vote of the House. I just want to confirm, on the one hand, that it is a simple majority vote and, on the other, that what is provided for in paragraph 41(e) would not apply and therefore we would not need the vote of the provinces.
Professor, Faculty of Law, University of Ottawa, As an Individual
Basically, where section 44 applies, it's a simple majority vote. It simply requires the passage of an act by the House of Commons and the Senate, which will eventually receive the assent of the Governor General.
I'm using the Senate reform reference here. It's a decision that was handed down by the Supreme Court in 2014. It would not be possible for the Parliament of Canada to touch the very essence of the House of Commons or its essential nature. This means that, while the Parliament of Canada has a power of amendment under section 44 of the Constitution Act, 1982, there are limits that have not yet been defined by the Supreme Court of Canada, but there are limits to this unilateral power of constitutional amendment.
Bloc
Christine Normandin Bloc Saint-Jean, QC
Interventions by members in the House during debates and oral question period on bills are part of what we use to determine legislative intent. I would like to know if virtual debates and debates held in the House, which can be seen in the Hansard blues, have the same legal weight.
Will debates held in the House and those held outside the House have the same legal status?
Professor, Faculty of Law, University of Ottawa, As an Individual
If I may provide an answer. Obviously, as I said at the beginning, we are dealing with new rights, let's not forget that. In light of recent events, some things will evolve, and privileges will probably evolve as well.
That being said, as long as a statement is made under the authority of the House, presided over by the Speaker of the House of Commons, as required by the Constitution, words spoken virtually have, in my opinion, the same authority as words spoken in the Parliament building itself.
Former Acting Clerk of the House of Commons, As an Individual
I completely agree with that.
Liberal
The Chair Liberal Ruby Sahota
That's all the time we have for that round.
I believe Ms. May has raised her hand, and I'm assuming she would like to receive some time. If any of you would like to share your time with Ms. May, please raise your hand and let me know.
Next, we're moving on to Ms. Blaney.
NDP
Rachel Blaney NDP North Island—Powell River, BC
I want to thank everybody so much for being here today. These are interesting times, and as we go into this conversation, we have to understand just what a complex question we're really approaching through this process. It's very good to have experts like yourselves here to help us through that process.
My questions are going to be going to Mr. Bosc and Mr. Tardi.
First of all, both of you have mentioned that the timeline of this study is relatively short for the capacity and the gravity of this conversation. I would like to hear from both of you how long this study should take. Are there particular parts, when you look over the process that we've laid out, that you would recommend us expanding on?
Former Acting Clerk of the House of Commons, As an Individual
I hesitate to put a time frame on it, but I do know that May 15 is not enough time—that is for sure. You just don't have enough time to properly absorb the information and arrive at conclusions that really cover all the aspects that have been raised and need consideration, in my view.
Executive Director, Institute of Parliamentary and Political Law
I agree entirely with Marc Bosc's interpretation of this.
In order to answer your question properly, I think the first step should be to distinguish what the most pressing and urgent aspects of this ensemble of questions are, get those resolved first and then add in details as solutions present themselves.
NDP
Rachel Blaney NDP North Island—Powell River, BC
Thank you.
In the last meeting with the law clerk and the Clerk of the House, they talked about what we can do to create a process to move into as needed. This sort of hit us by surprise. We're trying to adapt as quickly as possible. We have multiple committees happening. We're working on finding ways to question and hold the government to account, which is our job as opposition parties and something that I believe the government respects and understands keeps them more healthy.
As we move toward trying to discover what a virtual Parliament could look like, I'm just wondering if there are any thoughts on a staggered approach. When we initially look at it—and I think that's what we're going to see coming next week, a COVID-19 committee in the House that will be discussing certain issues related to that—it's about holding the government to account.
This is a short period of time. Is there an approach that could be staggered? There are some specific challenges and you both have mentioned them: questions of privilege, points of order, getting notice from the Speaker. Do you have any thoughts on a staggered approach to this?
That's to Mr. Bosc and Mr. Tardi. Mr. Tardi, maybe you can go first.
Executive Director, Institute of Parliamentary and Political Law
As you were framing the question, my thought was that nobody in this meeting has yet talked about using international examples.
In the last week or 10 days, the Parliament of Westminster has made considerable progress in developing what in today's documents is called alternate locations and a virtual House of Commons.
The physical advantages, so to speak, that the Brits have on us are a much more compact geography and a single time zone. That said, I think it would be quite useful for us to consult with our colleagues in London to see what kinds of procedures and supporting technologies they have adopted.
Former Acting Clerk of the House of Commons, As an Individual
Simply put, a staggered approach is definitely the way to go.
One of the ways that could be done, which in fact has already been started with the way committees have started up again, is on a subject matter basis. I can easily see, say, a question period done on a thematic basis. You could say you're going to have three ministers one day and another three ministers the next week, and so on, so that you build up to full resumption. As the technology catches up and the health situation abates, you can continue to build up in that way.
In terms of the procedures, I'm confident that the team around the Speaker, the procedural services team, is going to be able to look at all these issues—the practicalities that former speaker Milliken referred to—and come up with ideas. As long as the parties go along with it and are willing to be patient and co-operative, I think it can work.
NDP
Rachel Blaney NDP North Island—Powell River, BC
That's something I heard multiple times in your presentation, that patience and understanding as the process unfolds.
Mr. Tardi, you talked in your briefing about having two different types of working groups to help us through this process. One has legal advisers who look at what other democracies are doing, and the other has technical experts to make sure there is a fail-safe approach to protect further access to the identity of MPs.
I'm just wondering if you could touch on that. I didn't leave you a lot of time, sorry.
Executive Director, Institute of Parliamentary and Political Law
I think each of the groups of advisers has different contributions to make. In the process of making their recommendations, it's important to have them meet together virtually so that the advice given to parliamentarians is complete and makes sense in both legal and technical terms.