Procedure and House Affairs Committee on April 30th, 2020

[Matthew Hamlyn]

No, none have been raised in the four sitting days we've had so far.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Okay, thank you so much. I am just curious about that because that, of course, is a major concern for our Parliament as well. It is a huge country and I am very far away from Ottawa. I know some people are concerned about that.

My last question will be for Ms. Davies.

You talked about how you are doing this new form of voting. Could you talk about that a bit more? I'm also curious what happens if the video or audio cuts out and your members are not able to vote. What happens in that case? I am curious about that because their vote can represent their entire party.

[Siwan Davies]

We had changes made to our Standing Orders to enable weighted voting. That means that for each party group, one person is nominated to cast the votes of the entire group on the members' behalf. In the case of the government, it includes the Labour Party and the one independent and one Liberal Democrat member who make up the government. In the case of the four independent members that we have, they cast their votes themselves. Therefore, in their case, if they were not to attend the session, they would not vote, as per a normal physical session.

If there were a technical problem and the individual in question were not there to cast the vote, the Speaker has the option of checking to see if one of the other members of the party concerned wants to cast the vote on behalf of the group, as long as there is an understanding in advance that the members are prepared to do that. However, if there were a problem where the member casting the votes on behalf of the group had dropped out, for example, then we would not proceed with the vote. We would have to have a technical break to bring that person back online, because, as you say, you couldn't proceed if someone were incapable of casting a vote.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Thank you.

[The Chair, Liberal, Ruby Sahota]

Thank you, Ms. Davies, and to all of our witnesses today. It's always fascinating to compare our rules and procedures with those of other parliaments around the world and, of course, with the insights of the Privy Council at this meeting as well.

Thank you to all of you. We'll take a short, five-minute break. I'm sorry that we have to be so tight with the time when switching panels. Please be back for 12:45 exactly to start with our second panel. Thank you, everyone.

[The Chair, Liberal, Ruby Sahota]

Welcome back, everyone. We're going to get started.

I just want to make sure at the beginning that everyone clicks at the top right-hand corner of their screen to ensure that they're on gallery view. This is the view in which you should be able to see all of the participants. For those of you who are just joining us, before speaking, please wait until I recognize you by name. When you are ready to speak, you can either click on the microphone icon to activate your mike, or hold down the space bar while you're speaking. When you release the space bar, your mike will mute itself. This is just like a walkie-talkie.

I remind you that all comments should be addressed through the chair. When speaking, please speak slowly and clearly. When you are not speaking, your mike should be on mute. The use of headsets is strongly encouraged.

I would now like to welcome our second panel of witnesses to today's committee hearing. We've very pleased to have Mr. Gordon Barnhart, former clerk of the Senate, and Mr. Joseph Maingot, former law clerk and parliamentary counsel. He's also the author of Parliamentary Privilege in Canada. We're sure to learn a lot from your experience. Third, we have Mr. Gary O'Brien, former clerk of the Senate.

Welcome to the committee. We'd like to start by hearing from Mr. Barnhart, please.

Mr. Barnhart, please unmute your mike and give your opening statement.

[Gordon Barnhart, Former Clerk of the Senate, As an Individual]

Thank you very much, Madam Chair and members of the committee. It is my pleasure to be here and to be able to share some ideas with you.

Also, I'm deeply honoured to be sharing the panel with Joe Maingot and Gary O'Brien, two long-time colleagues, so it feels just like home, even if I'm in Saskatchewan and everyone else is spread across Canada.

I want to thank you for the invitation to appear before your committee to discuss ways that members can fulfill their duties while the House is adjourned due to COVID-19. I have to declare a bias, though. First, as a former clerk of the Saskatchewan legislative assembly and then the Senate of Canada, I have 25 years of accumulated service; thus, I am a huge supporter of the Canadian parliamentary system.

As members of Parliament will know, you have various roles to fulfill: one, to represent your constituents; two, to review legislation; three, to express grievance before supply, in other words financial review; and finally, to hold the government accountable. These are no easy tasks when the House is sitting in the usual way, and that makes it even more difficult now. When you're able to meet in person, that encourages rigorous and healthy debate. With the physical distancing requirements due to COVID-19, that old normal doesn't apply now. I therefore strongly recommend that Parliament continue to meet, especially during abnormal times, and thus I want to explore with you some options that I think should be considered and that I think are being tested in some way.

First, over the last six weeks the House has met with a limited number of members to allow for physical distancing. I support this action and encourage the House to meet like this on a regular basis. The House with a limited number of members will lack the intensity of the debate, but I think that is better than having no meetings at all.

How often should the House meet? Well, that is a political decision. I know that by nature the government wants fewer meetings, and by nature the opposition tends to want more meetings. I will leave it with you as to how you find that compromise, but I think a compromise must be found so that Parliament will meet on a regular basis. In the interest of good governance, I think we need to find a way for Parliament to be able to meet on a regular basis. The drawback to the option of meeting with a limited number of people is that the members who are farther away from Ottawa are limited in their ability to attend.

I also think that an option of meeting by distance would be good. I'll use the word “Zoom” because that's what we're using here, but there could be many different ways of doing it. In Saskatchewan, through the Municipalities of Saskatchewan, we're having meetings of up to 400 people at a time. They are able to listen, to see the speaker, to offer comments and to ask questions.

The drawback to that is that it doesn't allow for freewheeling debate as you would have if you were meeting in person, but again, I make the argument that it's better than nothing at all. One of the advantages, I guess, of this system is that there's no heckling, but maybe that is a drawback as well. One of the possible drawbacks of meeting by distance is for those members who don't have Wi-Fi. Saskatchewan is a vast province with a small population, yet we are able to make virtual meetings happen. I'm encouraging you to make every effort to do that across Canada. Today I'm doing this presentation, by the way, without Wi-Fi. Thanks to a personal hotspot, I'm able to connect through my iPhone and see you here today.

Committee hearings, on the other hand, are well adapted to virtual meetings because of the smaller size. Thus, I would encourage Parliament to make greater use of committees. They can be connected through Zoom without much difficulty, and even though we miss that personal approach, I think that from now on a lot of the business could be done through committees virtually.

The question now is, with the House with the physical spacing and the virtual meetings—perhaps a combination would be the appropriate way to go—is the Constitution or the Standing Orders being violated? I would argue not.

It could be offered that, if Parliament is not able to meet, then the members are not able to fulfill their roles and the spirit of the Constitution is not being followed. With a virtual meeting of the House, for example, as long as a quorum is present at the House in person, that requirement to sit and to meet quorum would be met. Members attending electronically would be in addition to that quorum. Since all of the members can meet, and if all the members can meet under those two circumstances, then there needs to be an agreement. In terms of the minority Parliament, if there's going to be a division of a smaller number meeting in the House, if you had a confidence vote, you would have to make sure that the agreement is followed so that there is no defeat of a government.

If there was a defeat, if there was a breakdown of that agreement just because of the limited number meeting in the House, I would argue that the Governor General would take into account the circumstances in deciding whether another election would be called, if the government would be defeated or if they would carry on. I would argue, too, that any political party that is playing games with the numbers during a pandemic would face a negative outcry. Thus, I am sure that would not happen. If all the members were allowed to meet virtually, as well as those in the House, I think that would be the easiest way, because you would avoid that division of how many members could be there. The possibility of defeat of government would be much, much less.

Particularly in times of crisis, the public wants its Parliament to function well. I cannot see any constitutional or procedural reasons why a combination of those two options shouldn't be followed.

A possible objection to virtual meetings would be how a vote is counted. At present, as you know, a member must be present and standing in the House to declare their vote. I know that voting can happen by virtual meetings. A vote can have a great significance in the House. “Stand and be counted” is a common phrase, but during these unusual times you may not have that show of public support. You have to be able to vote, and that electronic system will show that it has been valid. The electronic system will show how many people have voted and how they have voted. I think that is well within the rules.

Neither of the above options is as effective and as attractive as meeting in person, but, for now, these options are better than no parliamentary sitting at all. Once the pandemic has passed, Parliament must return to its former method of meeting. The Canadian parliamentary system has existed since before Confederation, through world wars and economic depressions. It must find a way to function during this pandemic.

Thank you very much, Madam Chair.

[The Chair, Liberal, Ruby Sahota]

Thank you.

Next we have Mr. Maingot, please.

[Joseph Maingot, Former Law Clerk and Parliamentary Counsel, House of Commons, and Author of “Parliamentary Privilege in Canada”, As an Individual]

Thank you, Madam Chair.

I'm going to deal with the question of immunity that's involved in the proceedings of the House and of the committee. I'll give you a brief history and then try to come down to the present.

Parliamentary privilege is a branch of the law of Parliament. It's an elusive subject, and it has a long history, as long as Parliament's. Canada's parliamentary privileges are based on those of Westminister. During the days of the High Court of Parliament in England, the concern was to get the member to Parliament. He had the privilege of protection for actions against his person in the beginning. He did not have to worry about what the public would say about his words or actions in Parliament, because the public was not privy to Parliament or its proceedings, but the king was, through his mouthpiece, the Speaker. Consequently, the next step was to be protected from the king for words and actions in Parliament. That was eventually resolved by article 9 of the Bill of Rights, in 1689, which says more or less that whatever is said in Parliament or in a proceeding may not be questioned in any place outside of Parliament. That arose from the time of the late 1640s, when Charles I lost his head.

Article 9 of the Bill of Rights provided freedom of speech to the member and protection from third party liability for what he said or did in a parliamentary proceeding. Although the member could publish for his own use, members were prohibited by House resolutions of the time from repeating outside Parliament what they or others had said or done in Parliament. A member repeated what he did and said in the House outside of the House of Commons at his legal peril. Any publishing of his own, such as householder mailings, was not protected.

While parliamentary privilege protected the member in Parliament, it was the common law that protected the use of Hansard. A faithful report in a public newspaper of a debate containing disparaging matter to the character of an individual that had been spoken in the course of a debate was quite proper. It is privilege on the same principle as an accurate report of proceedings in a court of justice. That is, the advantage of publicity to the community at large outweighs any private injury resulting from the publication. Defamatory matter contained in a report tabled in the House, but otherwise forming no part of the proceedings of Parliament that were printed, was not protected.

[The Chair, Liberal, Ruby Sahota]

Mr. Maingot, I know you are going slowly, but as you don't have a headset, the interpreters are having a bit of difficulty, so maybe you could speak closer to the mike and maybe even more slowly if possible. Thank you.

[Joseph Maingot]

Thank you.

That item was because of the famous case in 1839 in Stockdale v. Hansard, which every parliamentary clerk and officer would be aware of. Now, of course, such a report, tabled in the House and published by an order of the House, would be protected by the Parliament of Canada Act.

When the proceedings of Parliament were broadcast, it was provided the persons producing radio and television were employees of Parliament and they produced an electronic Hansard: that is, an audiovisual report of the House without embellishment or editorial. The sittings of committees of the House are also now broadcast. As in the case of the printed Hansard, the electronic Hansard now provided in the House of Commons is a verbatim report of what has transpired audibly and, in the case of television, visually. The debates, whether broadcast or not, nevertheless are still part of debates in Parliament, per article 9 of the Bill of Rights, 1689.

In a study of the privileges of members of the Parliament in Britain, the Select Committee on Broadcasting, in 1966, said that a member of Parliament whose speech is broadcast would continue to be protected by absolute privilege in respect of what she or he said in debate in the House. The member is, in law, speaking on an occasion of absolute privilege, and the means of publication is irrelevant.

Parliamentary privilege is the necessary immunity that the law provides for members to do their legislative work, including the assembly's work in holding the government to account. It is also the necessary immunity that the law provides for anyone taking part in a proceeding in Parliament.

To the question “necessary in relation to what?”, therefore, the answer is necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.

In addition, it is the right, power and authority of each House of Parliament to perform its constitutional functions.

The Supreme Court of Canada pointed out that in the U.K., privileges of Parliament are rights “absolutely necessary for the due execution of its power”, and that “Canadian legislative bodies properly claim as inherent privileges those rights which are necessary to their capacity to function as legislative bodies. There is no dispute in the case law that necessity is the test.”

The sittings of the House of Commons itself and the sittings of a committee of Parliament are constitutionally inherent. Their exercise is not subject to a judicial review and constitutes one of the internal proceedings, and all who participate in them are protected. So anyone participating in a committee of the House or in the House is protected.

The Supreme Court of Canada confirmed that the courts defer to the internal proceedings of legislative bodies, affirmed that the House of Parliament is “the sole judge of the lawfulness of its proceedings” and that this is “fully established” in the United Kingdom, while also approving that “[i]n settling or departing from its own procedure, the House can 'practically change or practically supersede the law'”.

The dictionary definition of “virtual” says, “having the essence or effect but not the appearance or form of”. As in the case of the House of Commons, a virtual sitting of a committee of the House constitutes a sitting and part of the internal proceedings of the House. Parliamentary privilege prevails, in line with the principle that prevails in a proceeding of a virtual court of justice.

[The Chair, Liberal, Ruby Sahota]

Thank you.

Mr. O'Brien, please.

[Gary W. O'Brien, Former Clerk of the Senate, As an Individual]

Thank you very much, Madam Chair, for your invitation to appear. I seem to have an unstable Internet connection, so I hope I can get through this without any problem.

I would like to discuss some of the procedural issues relating to the implementation of a platform for full virtual sittings.

As I understand it, the proposal for virtual sittings is being offered as a temporary solution to balance parliamentary duties with caution over the COVID-19 pandemic. Although the intention is to make such sittings temporary, I think nonetheless that it would be helpful for the committee to have a detailed analysis or, even better, an audit of how these new technologies may impact the various procedures of the House and, more importantly, the consequences flowing from those changes. This way your committee would have a big picture of what is at stake.

The testimony you have received to date from Speakers, former speakers, clerks and law clerks is invaluable, but perhaps a comprehensive study undertaken by your table research team with the participation of members of the House will allow you to better assess what changes will have minimal impact versus those that may come close to altering the chamber's fundamental procedural characteristics. Such an analysis may assist you in recommending the kinds of hybrid processes or first steps in going forward to implement a virtual sittings platform.

Studying proposed revisions to standing orders during a crisis without having the time to understand which amendments may transform the chamber's essential characteristics is never the best practice for policy-making. I acknowledge that your institution may be under important peer pressure at the moment, as other legislatures around the world are moving to virtual operations in response to the challenges posed by the pandemic, but given the hand you are dealt, at the very least it may be helpful to identify which procedures may be most affected and which are not, if a virtual platform is to be adopted.

I fully agree with the testimony given by the former acting clerk a few days ago that it may be more efficient to build on existing practices. Please keep in mind that other legislatures are also exploring alternatives to physical meetings, but within the constitutional, statutory and rules-based constraints of their legislative processes.

Clearly, some procedures allow for certain parts of the chamber's business to be taken virtually. At Westminster, the House of Commons has agreed that remote technology can be used for key items in business, such as questions, urgent questions and ministerial statements. The Samara Centre for Democracy, in its brief to your committee, has identified take-note debates, during which members give their views on a topic but do not take binding votes, as a procedure appropriate for a virtual Parliament.

However, in my own assessment, the ultimate goal of allowing Parliament to operate as virtually as possible without a continued physical presence in Ottawa appears to go beyond changing just the work ways of the House. The introduction of technologies permitting members to absent themselves from the institution, allowing them to attend via video link, seems a much more fundamental change, and I would like to identify three procedures that may undergo significant alteration.

My first fundamental concern is with the rule of attendance.

The marginal note of Standing Order 15 states that attendance is required. I am confident that advice can be given so that the wording of the rule can be amended to procedurally allow for the use of virtual platforms. Setting aside the legal argument, a question must be raised about whether the intention of the rule would be fundamentally altered.

In the research I prepared for my doctorate on parliamentary practice in pre-Confederation Canada, I came upon an entry, for September 16, 1842, from the Legislative Assembly of the united Province of Canada. The House used to fix a day for the call of the House, requiring that all members attend. If any members were absent, the Speaker sent them a letter, as he did this day, saying, “The House, in directing me to give you notice, is actuated by the greatest unwillingness to believe that such unexplained absence would have arisen from any such neglect or indifference as would render an Honourable Member liable to the censure of the House”.

From the beginning of legislative practice in Canada, the first duty of any member of Parliament was to attend sittings and, for many decades, failure to do so without a valid reason brought censure from their colleagues.

Standing Order 15 has been a permanent rule of the House since 1867. Notwithstanding the many demands and obstacles that members of Parliament have always had to face, the principle that the physical attendance of members is required for the House to fulfill its constitutional duties has been a constant theme as to how the legislature should operate. This may now change. What the consequences are should be explored.

My second concern is with counting a quorum. O'Brien and Bosc, second edition, states the following with regard to quorum: “Under the Constitution Act, 1867, a quorum of 20 Members, including the Speaker, is required 'to constitute a meeting of the House for the exercise of its powers'.... In this regard, the Deputy Speaker [said]:

...the Speaker is not in a position to tell members from either side of the House who should be in his or her place or how many members should be available for any debate [in counting a quorum].”

In accordance with this citation, a member, to be counted for quorum, must be physically in his or her place. If a virtual platform is implemented for legislative sittings, a different process would have to be established. Please keep in mind that the standing order on quorum is also a constitutional provision and is part of the Constitution Act, 1867.

Historically, before the Act of Union of 1840, which united Ontario and Quebec to become the united Province of Canada, the issue of quorum was of great controversy. There had often been heated discussion and uncertainty in the assemblies of Upper and Lower Canada as to what an appropriate quorum should be, given the pioneer conditions of the country and the linguistic and religious divisions within society. The rules of both assemblies were amended many times in this respect. By making it a statutory regulation and including it in the constitution of the province, it was hoped that the controversies over quorum would cease.

Finally, I'm concerned with proposals permitting electronic voting. Measures that allow for the use of electronic voting to the exclusion of other components of conducting a legislative debate in Parliament misunderstand the nature of parliamentary procedure. Voting is a crucial stage, but it is only one of two others that go into the making of the decision on a bill, and all three stages are linked. The other two stages are the proposing of a motion and then its debate.

In theory, as per the rules of the House, all members are to attend the sitting so that they know about the motion through the reading of the Order Paper—for example, the introduction of bills—and to think about it for two days in order to prepare their thoughts and then to commence its debate. Some classical political theorists believe that legislative debate is the most important constitutional principle there can possibly be and is the basis for democracy.

Parliaments are steeped in tradition, because those traditions are meaningful. Allowing for only electronic voting may belittle other aspects of making a legislative decision and may not respect the important principle of parliamentary procedure.

In conclusion, as I have mentioned, I believe a detailed analysis or audit of how these new technologies may impact various House procedures could be of assistance to you. In addition to those subjects I've discussed, the audit could include the rules of order and debate, how the Speaker will recognize those who wish to participate in debate, what a virtual Parliament would actually look like in the assignment of seats, how to appropriately acknowledge national and international tragedies, and the procedure for royal assent. A full analysis will obviously be a longer-term project, but one that your committee may want to pursue.

Thank you very much.

[The Chair, Liberal, Ruby Sahota]

Thank you.

We will now continue into questions. First up will be Mr. Richards for the Conservative Party.

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

Thanks, Madam Chair. I'll start with Monsieur Maingot.

You discussed the concept of privilege in your opening remarks. I wasn't completely clear on it, so maybe I'll ask for some clarification from you. Are your thoughts that in virtual sittings there may be some concern with privilege, for example if members were unable to access the virtual sittings because they didn't have quality Internet service?

Also, I think you indicated that for the words spoken during these virtual sittings or meetings, there may be some concern about whether they would be covered by parliamentary privilege. Did I understand that correctly? Can you maybe just touch on those two topics?

[Joseph Maingot]

Actually, it was the contrary. I'm of the view that parliamentary privilege prevails because it's a sitting of the House. The procedures of the House are subject to the concern of the House, and of course defer to the privilege of the House, which relates to the inner proceedings.

As a matter of fact, when I was looking it up and checking, as anybody would, I noticed that the Parliament of Western Australia looked at the question of virtual sittings and the only aspect the members didn't cover and weren't worried about was the parliamentary privilege aspect.

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

What about the other concept? There's obviously a built-up body of Speaker's rulings and otherwise that would indicate where people have been physically unable to access the House of Commons for whatever reason; they've been delayed or held up in some way. I suppose you can make the argument that if you're not able to access any of the virtual sittings because you don't have the Internet connection, or whatever the reason might be, your privilege has been breached.

What would be your thoughts on that? Would that potentially be a breach of a member's privilege, if he or she wasn't able to be a part of these virtual sittings because of those kinds of reasons?

[Joseph Maingot]

It seems to me that unless the member wanting to attend a session was prevented from attending because of missing a plane or being sick or any reason other than that, it would be the same as if you were sitting in a traditional way. If something doesn't prevent you from coming because you're a member, then it's up to you to attend.

I hope I'm making myself clear. For members who can't get to a meeting, it's only if they're obstructed as members from attending. Otherwise, it's up to them to get there.

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

Sure. So if it were held as a virtual sitting and in the region where you live there is not the Internet connection to do that—I understand that may have occurred the other day for some members, although I haven't been able to confirm that—if that prevented members from being able to log on, would that be considered the same as if someone had physically obstructed them from entering?

[Joseph Maingot]

I'm not sure I heard everything you said. The point is that unless you're being obstructed from attending a sitting of the House or a sitting of a committee as a member of Parliament, no contempt of Parliament is involved.

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

I understand. So you wouldn't see the lack of Internet access for a virtual sitting being considered obstruction in some way.

[Joseph Maingot]

I would not, because it's part of the proceedings of the committee that the committee itself has established to use in advance.

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

Okay.

I understand you were the law clerk when the House moved to televising the proceedings. Is that correct?

[Joseph Maingot]

Yes.

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

Would there be any lessons to be learned from that time, from that switchover, that would be helpful in looking at this? This is being looked at as an emergency right now. Would you advise caution in looking at this as a long-term thing? Would you advise using this only for these types of emergency situations, or is it something you think can be moved to quickly as a permanent thing?