Vincent J. Curtis
16 Nov 21
I received a learned reply to my post on MPs can't be banned from the House. It is reproduced below with omissions sufficient to block the identity of the sender. My reply is below.
First, I
cannot speak for ________, but Conservatives are not asking for special
treatment as we do not support mandatory vaccinations for any federal
employees, but rather we are stating there are alternatives such as rapid
testing for those who cannot, for whatever reason, be vaccinated. Rapid testing
would actually be more effective as it would ensure no one in the House has
Covid as even those vaccinated can still carry the virus.
In
addition, the BOIE order is not specifically to access the Chamber, but the
entire precinct which would include a Member’s Hill office. That being said,
MPs will have to show proof of vaccination to board a plane to fly to Ottawa as
of October 30. I can’t imagine many would drive across Canada and back each
week, so there are hurdles for any unvaccinated MPs already, if there are any
that is.
To clarify
a part of your document, “a Board of Internal Economy cannot be said yet to
exist” : With the dissolution of Parliament, while all business of the House is
terminated - the Speaker, the Deputy Speaker and the members of the Board of
Internal Economy continue in office for the acquittal of certain administrative
duties until they are replaced in a new Parliament (s 69). It is not the
writ return which indicates the change in power for these positions, but the
replacement of the positions as they cannot be vacant. As such, the members of
the Board of Internal Economy as well as the Speaker of the House remain in
their position until they are replaced.
My reply is below:
That being
said, one could argue if the BOIE even has the jurisdiction to make such a
decision to limit access to House by a Member of Parliament. Conservatives will
be challenging this point through a Point of Privilege when the House resumes
later this month. Meanwhile, although the decision does not align with our
Conservative views that alternatives such as rapid tests should be available,
we will advocate for a virtual option so all MPs are able to serve in their
elected role and represent their constituents in debate and discussions of this
Parliament until the order is revoked.
During the 2020 American president election, the California
elections commission tried to keep Donald Trump’s name off the ballot in that
state through the gambit of requiring a presidential candidate release their
tax returns. Of course, Mr. Trump never did. The California Supreme
Court struck down the requirement on the grounds that it was an extra-constitutional
requirement, and therefore unconstitutional. The American constitution
only requires that the president be native born and over the age of 35.
Something like this is being pulled in Ottawa. The
only constitutional requirement for a person to sit as an MP in the House is
that they be duly elected. The addition burden that they also be
vaccinated (however that is defined), disclose their vaccination status, and
supply proof to the satisfaction of some knobby of their vaccination status is
likewise extra-constitutional. Never mind being pernicious to the rights
of the minority.
You mentioned in your reply a ‘(s69)’ of something or other
in reference to the carrying on of the Speakership and BOIE until
“replaced.” Permit me to refer you to the autobiography of the late Sen.
Eugene Forsey, an acknowledged constitutional expert. He used to rail
against the invocation of an alleged “Principle of Administrative Convenience”
to justify unconstitutional actions, practices, conveniences and shortcuts
availed in the exercise of power to avoid the awkwardness of having to follow
true constitutional practice – which you can be certain is awkward for a
reason. The carrying on of the Speakership and the BOIC of the last
parliament until replaced by the new is an obvious codification of this
pernicious principle. The Ghosts of Christmas Past continue to haunt the
House until is it convenient that they be replaced.
Below is a link to a certain rigmarole that the mother of
Parliaments undergoes immediately after an election. I’m sure the
Canadian parliament does something similar.
https://www.youtube.com/watch?v=4nrI8kMkIrI
The procedure you see is incomprehensible under the legal
theory that the Speaker holds the job “until replaced.”
You can see the pernicious effect of s69 on the recall of
parliament. Where is the urgency to summon parliament after an election
if everything can sail on as before without interruption until replaced?
The role and actions of the Ghosts of Christmas Past rest on
mere fumes of legitimacy, and might be tolerated so long as the actions they
discharge are routine and uncontroversial. But the imposition of new and
extra-constitutional requirements by the old parliament on the new is beyond
the pale of legitimacy. It is an exercise of power Mr. Rota and the old
BOIC do not legitimately have - at the best of times.
And this is why Mr. Rota and the “BOIC” must be resisted if
the minority expect their rights to be respected in the future.
In my view, the Conservative members of the House ought to
vote against Mr. Rota should he choose again to run for Speaker on the grounds
of his having lost their confidence.
I hope this answers your point about the Ghosts of Christmas
Past continuing to haunt the House of the new parliament until replaced.
I have confined my remarks to the matter of sitting in the
House for the sake of clarity. In the United States it is a crime for
anyone, including law enforcement, to interfere with a member of congress going
about their duty, such as voting in their Chamber. Making it impossible
for MPs to live and perform their duties unless “vaccinated” to me cries out
for a rebuke somehow, some time.
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