Response to MPs can't be banned from the House

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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