Canadian Parliaments Respond to COVID-19

Article 3 / 14 , Vol 43 No 3 (Autumn)

Canadian Parliaments Respond to COVID-19

In May 2020, the Canadian Parliamentary Review surveyed table clerks at all Canadian legislatures, with support from the Samara Centre for Democracy. In this article, the author summarizes the responses (and adds updates) to provide a rich account of the state of parliamentary democracy in Canada during the early pandemic and into the late spring and early summer. The picture that emerges is one of rapid adaptation in some cases, stasis in others, and legislative staff everywhere working hard to accommodate a new logistical and political reality. Most striking is the deep variance between legislatures in Canada—from those that have not met at all since the pandemic arrived, to those that have carried on with only minimal changes, to those that have radically adapted to incorporate remote and virtual proceedings.

Mike Morden

In May 2020, the Canadian Parliamentary Review surveyed table clerks at all Canadian legislatures, with support from the Samara Centre for Democracy. In this article, the author summarizes the responses (and adds updates) to provide a rich account of the state of parliamentary democracy in Canada during the early pandemic and into the late spring and early summer. The picture that emerges is one of rapid adaptation in some cases, stasis in others, and legislative staff everywhere working hard to accommodate a new logistical and political reality. Most striking is the deep variance between legislatures in Canada—from those that have not met at all since the pandemic arrived, to those that have carried on with only minimal changes, to those that have radically adapted to incorporate remote and virtual proceedings.

Introduction

When the pandemic arrived in Canada, in the first weeks of March, thousands of workplaces across the country underwent radical, almost instantaneous change. Parliament and the legislatures were no different.

But legislatures are not like other workplaces. They are centres of political deliberation and decision-making, which grow rather than diminish in importance in the face of crises. Rapid change is also harder, both practically and philosophically. Legislatures carry the weight of centuries of custom, convention, and tradition. The rules are meant to be enduring, so they can’t be gamed for short-term benefit. The pandemic is not totally unprecedented—the Spanish Influenza closed Canadian legislatures for prolonged periods in 1918-19—but unusual enough that governments, speakers, clerks, and members were operating wholly without guidance from experience.

In short, the very crisis that made public decision-making so uniquely consequential, made legislative life nearly impossible at the same time.

How did Canadian institutions respond? In May 2020, the Canadian Parliamentary Review surveyed table clerks at all Canadian legislatures, with support from the Samara Centre for Democracy. The responses provide a rich account of the state of parliamentary democracy in Canada during the early pandemic. These responses have been updated to reflect changes that took place in the late spring and early summer. The picture that emerges is one of rapid adaptation in some cases, stasis in others, and legislative staff everywhere working hard to accommodate a new logistical and political reality.

Most striking is the deep variance between legislatures in Canada—from those that have not met at all since the pandemic arrived, to those that have carried on with only minimal changes, to those that have radically adapted to incorporate remote and virtual proceedings.

Locking Down: Responding to the pandemic’s arrival

On March 11, the World Health Organization declared a global pandemic. Over the course of that week, COVID-19 infections began to accumulate in North America and schools and businesses began to close. By the week of March 16, many parts of the country had instituted or were moving toward public health orders, which dramatically curtailed movement and contact between Canadians. The lockdown caught the legislatures under different circumstances, which were reflected in subsequent decisions about how to proceed.

Nova Scotia, Prince Edward Island, and Nunavut were not sitting in mid-March; Nova Scotia and Nunavut had recently completed sittings and passed budgets, and Prince Edward Island had not sat yet in 2020. All three extended their existing hiatuses indefinitely.

Most of the other legislatures suspended or rapidly brought to a close their spring sittings. Some—Ontario, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, the House of Commons and Senate—returned for one-day emergency sittings later in March and again in April. The Alberta legislature maintained the most typical proceedings, continuing to meet, albeit with limitations on how many Members were present, and a modified schedule.

Sitting Days and Proceedings

There has been deep diversity in how often Canadian legislatures have convened for Chamber business since the pandemic arrived. Alberta sat the most in the spring and summer by a wide margin. The legislatures of Nova Scotia and Nunavut did not sit in the five months following the pandemic declaration. Many legislatures held one or more single-day sittings through March and April, in order to pass relief and emergency measures. Several of the provincial legislatures, as well as the legislature of the Northwest Territories, began sitting somewhat more regularly for a period beginning in May or June.

Along with the initially episodic and irregular Chamber sittings, nearly all legislatures have seen at least some committee business continue throughout the pandemic period or re-start in the late spring and early summer. The range of committee business that was permitted to carry on varies from jurisdiction to jurisdiction, and generally increased into the late spring. In the House of Commons, for example, the Finance and Health committees were first authorized to meet remotely in late March. In April, four more committees were empowered to resume meeting remotely, and the scope of committee work was broadened again in late May. Nova Scotia is again a notable case here, where only the Human Resources committee, which is statutorily required to convene monthly, met in the five plus months after the pandemic began.

In some cases, special committees were also introduced either to provide additional opportunities for scrutiny of government or to permit some measure of participation for opposition parties in government decision-making. In the latter category, both New Brunswick and Newfoundland and Labrador saw the creation of special committees outside the legislature, which included leaders of opposition parties. In the House of Commons, a Special Committee on the COVID-19 Pandemic was created in late April, which simulated Question Period-like exchanges both virtually and in person. Similarly, in Quebec the National Assembly first authorized virtual committee meetings to allow MNAs to ask questions of ministers.

Parliamentary ceremony has been largely upheld, with some tweaks. All legislatures that sat in the early pandemic period did so with the mace in its usual place. The Speaker’s Procession has mostly taken place, though it was skipped in Ontario in the first couple of emergency sittings before being reinstated and it has been simplified elsewhere. Some other ceremonial tweaks have also taken place. For example, in Yukon the Commissioner granted assent to bills in the Chamber without her customary aides-de-camp.

The pandemic’s disruption ranges from the profound to the banal. For example, legislatures have re-examined how to distribute documents like bills, motions, order and notice papers to Members. Some legislatures have simply discontinued the practice of distributing documents directly to Members at their desks or have required Members themselves to provide a limited number of hard copies to the Table. In New Brunswick, paper documents have been prohibited; all documents are distributed electronically. The National Assembly in Quebec launched an electronic document filing system in late May, when it began sitting more regularly.

Balancing safety and participation: the problem of physical distance

In the final moments of the regular sittings and in the pandemic-accommodation sittings that followed, a fundamental logistical problem had to be contended with: most legislative assemblies are not big enough to permit enough distance between members to satisfy public health guidelines. The legislatures themselves had to pare down their own staff teams. In some cases, the changes were dramatic; for example, legislatures opted to remove pages, and operated with fewer clerks and Hansard reporters than conventional. But managing the physical distancing of members is a fundamentally pricklier problem.

In order to meet physical distancing guidelines, on the final day of the shortened spring sitting, Yukon instituted a new seating plan that included placing some Members in the public gallery (which had been closed to the public). The PEI legislature was also able to accommodate all members under a revised seating plan. But most legislatures that operated during this time instituted limits on how many Members could attend. Decisions about how many members could sit fell mostly to the House leaders, though they also consulted with public health officials about how many could safely be seated at a time.

Limiting access to the legislature for Members, all duly elected to act as the sole representative for their community and constituents, was among the more controversial adaptations that legislatures were forced to make. The smaller number of filled seats had to be shared among the parties, and this required negotiation between the house leaders. For the most part, a working consensus was achieved about how to accomplish this, with the reduced legislatures roughly mirroring the proportionate distribution of seats. This was not universally true, though.

In some reduced sittings the Opposition was, through agreement, slightly overrepresented, though without altering the likelihood of business being impacted. In Ontario, for example, the Government sat with a symbolic majority of one more member than the combined opposition parties for the first several one-day emergency sittings, compared with holding roughly 6 in 10 seats in the legislature. In Saskatchewan, the Government sat with a large outright majority—10 seats to the opposition’s 5—but still smaller than the majority it holds of seats in the legislature. Some arrangements were more intricate. In the National Assembly of Quebec, for example, a motion was passed which established one proportionate distribution of MNAs for most chamber proceedings, and a second arrangement for Question Period, when the opposition parties would gain members at the Government’s expense.

Who got to attend was left to caucuses and/or the party leadership. Like most decisions internal to caucus, the basis for choosing which members would be present is, for the most part, a carefully guarded secret. But the Canadian Parliamentary Review survey shines some light. For example, in Ontario parties chose who to include against a range of considerations. They included who was relevant to the proceedings (e.g. ministers, parliamentary assistants, critics), regional considerations (one party chose specifically to ensure representation from each region, while another opted to primarily include members who could more easily travel to Toronto), health conditions of the members themselves, and their family responsibilities. This description suggests that in some parties, there was a measure of consensus, or at least accepted criteria for selecting between members.

In contrast, internal decision-making about who would attend the House of Commons became a matter of some controversy when Conservative MP Scott Reid complained publicly of being excluded and therefore experiencing interference in his ability to exercise his rights and uphold his responsibilities as a Parliamentarian. He took his seat in a one-day emergency sitting, in defiance of the party’s instruction.

The uncomfortable outcome, in any case, is that the overwhelming majority of legislators have not been counted in most of the votes that have taken place during the pandemic. BC is one exception explored below—the only legislature to authorize remote voting for Chamber business. The National Assembly in Quebec offers another unique model. A special order passed in early May established a block proxy vote process, in which the party leaders cast their votes on behalf of the full membership of their caucuses. All MNAs in those parliamentary groups, including those not present, are therefore recorded as having voted.

Going Virtual?: Technology in the pandemic parliaments

If public health orders and a lack of physical space limited participation, technology provided opportunities to broaden it again. Canada’s legislatures have taken advantage of technology, again, to highly varying degrees.

The closest thing to a pandemic virtual parliament in Canada is in British Columbia. Hybrid virtual chamber proceedings were launched in late June, featuring up to 25 MLAs in-person in the legislature, with the rest participating by video conference. By sessional orders, originally set to expire at the end of August, members joining virtually are counted toward quorum, and can cast their votes by roll call. The voting procedure and timing was amended to enable members participating both online and in-person. The hybrid virtual chamber has sat on Mondays, Tuesdays, and Wednesdays, with a virtual-only Committee of Supply meeting all day Thursdays and Fridays. Virtual chambers with remote voting have been under contemplation in other legislatures for the fall and winter—the House of Commons Procedure and House Affairs committee has called for its implementation, for example—but at the time of writing, they have not yet been introduced elsewhere.

But several legislatures have authorized remote participation for the members in committees. British Columbia, Quebec, and the Northwest Territories led the way, transitioning more quickly to remote meetings in late March and April. Other legislatures have subsequently authorized their committees to do the same—operating either wholly virtually, or on a hybrid basis with members both in-person and video-conferencing in. The House of Commons Special Committee on the COVID-19 Pandemic, to which all MPs belong, has conducted its business—including a Question Period-like proceeding in which members can ask questions of ministers—both in-person and virtually. Remote participation was also permitted when the Commons met on several occasions during the summer, after it had been resolved into a committee of the whole.

The clerks report few major logistical barriers. Both the Commons and Senate adapted existing tech tools into a subscriber version of Zoom, which enables simultaneous interpretation, as well as enhanced security and control for the House and Senate administration. Connection tests are run for members, senators, and witnesses immediately before committees meet. Some safeguards and supports have been put in place for the inevitable glitches; for example, in Yukon, if an MLA is experiencing problems with their video connection, the committee clerk immediately dials them into proceedings via teleconference. Legislative services, like library and research support, were largely transitioned to remote work, but are still available to the members without exception.

Technological adaptation has been necessary at the level of constituency work as well. Indeed, the arrival of the pandemic brought a huge surge in demand from constituents for help — first repatriating stranded family members, then navigating massive new programs and relief measures. Most members and their constituency staff have had to meet this demand from home, and without immediate access to their typical office resources. New Brunswick, Newfoundland and Labrador, Saskatchewan, and the House of Commons report having developed guidelines for safe work practices, as well as for shifting constituency service work online. Several legislatures have also licensed video conferencing platforms for use in the constituency. But Members, ultimately, have wide latitude (and heavy responsibility) to manage their own constituency service.

Is a further evolution toward virtual proceedings imminent? It is difficult to predict. The various legislatures seem to read the possible logistical and constitutional challenges differently. For example, clerks from Ontario flag possible constitutional obstacles, including the quorum requirement for the federal House of Commons that requires the “presence” of a set number of Members. The BC Assembly exercised autonomy over its internal proceedings and unanimously determined what and how it considers its Members to be present for its proceedings. And the Commons Committee on Procedure and House Affairs has advised the House of Commons to do the same. Several legislatures report that members have raised concerns about equitable broadband access in rural and remote areas, and differential access to technology between the members. But the two legislatures that have facilitated the most remote participation—BC and the House of Commons—have had considerable success managing those challenges thus far. Another concern raised by members is that moving to remote participation even during a pandemic might erode a mutual commitment to convene in person under normal circumstances.

But there is consensus among the clerks surveyed that whatever happens next, decisions regarding virtual proceedings belong to the members themselves — and these decisions may be driven by events. If the widely forecast subsequent waves of infection occur — and indeed, at the time of writing, some such waves have already appeared regionally—legislatures may return to the question of remote participation with renewed interest.

Conclusion: History in real time

Half a year into this once-in-a-century pandemic, the legislatures of Canada present a muddled picture. Tackling fundamentally the same set of challenges, they have arrived at — in some dimensions — strikingly different responses. Having instituted the most extensive virtual proceedings, British Columbia is at one far end of the innovation spectrum (at least in the Canadian context — numerous other international legislatures had instituted similar arrangements. On the other end is Alberta, which has stuck most closely to business as usual throughout, and has been considerably more active than every other legislature in the country. Finally, legislatures like Nova Scotia have stayed largely on hiatus. But this strategy cannot possibly outlast the pandemic.

In any case, the full story has not yet been told. The pandemic is with us, and its course, trajectory, and longevity are unknown. Legislatures that avoided spring sittings must now confront roughly the same issues in the fall and winter. More innovation, of one kind or another, is highly possible as the pandemic drags on. But this is complicated somewhat by the fact that the question of how to operate has become polarized in some places. After much wrangling, the House of Commons was able to arrive at a compromise hybrid virutal model for the Fall sitting, though the issue remains contentious, and the Members will be re-evaluating in December.

Legislatures are rich with practice, custom, and convention; still, there is no manual for navigating a crisis of these proportions and the particular obstacles it manifests. These particular assemblies will stand out oddly on the page of parliamentary history in Canada. But, while they cannot operate as they normally would, they can continue to uphold their vital responsibilities at the centre of public leadership. In the decisions taken so far, and those to come, leaders and legislative staff are forced to contemplate what is amendable, what can be adapted to unique times, and what is simply sacrosanct.