Liberal Leader Roger Melanson said that part of the rationale in excluding the public is due to the current mask wearing rules which requires MLAs to wear masks on the floor of the Assembly but as CBC notes “ If they choose not to wear a mask, they have to sit upstairs in the public gallery, a space that's been used by some MLAs and ministers over the last two years to allow for distancing.” People’s Alliance Leader Kris Austin elaborated that the only exception for MLAs wearing masks while on the floor of the Assembly is if they are speaking during debate.
This requires a degree of clarification. Absent a decision of the Legislative Assembly, all mask wearing rules proposed by LAC for MLAs are merely voluntary guidelines and have no legal basis during a Parliamentary proceeding. As I said to the Telegraph Journal on October 26, 2021 in the context of requiring MLAs to be fully vaccinated to attend a sitting of the Legislative Assembly, Parliamentary Privilege confers the power to the Legislative Assembly to regulate their internal affairs: “MLAs have the privilege to be free from obstruction to attend a sitting of the House. And that individual right can only be overridden by the collective right of the Legislative Assembly to control its internal affairs.” Equally, a motion of the Legislative Assembly would be needed to require MLAs to wear masks in order to attend a sitting and only allow exemptions for removal when individuals are actively participating in debate.
An example I cite of MLAs imposing a restriction on who can attend and participate in legislative proceedings occurred in 1786 when the Assembly first met in Saint John. Under the Standing Rules at the time it was impermissible for MLAs to enter in the chamber or participate in debate while wearing a hat. Requiring an MLA to wear a mask to participate in a sitting is no different. LAC would not have the jurisdiction to prevent an MLA from accessing the House or participating within. Normal Public Health rules do not automatically apply to MLAs in the context of a parliamentary proceeding, it is for the Assembly to decide how to limit access to MLAs. In the absence of the Assembly itself making a decision, the exclusion of the public is an unfortunate incidental consequence to avoid infringing on the individual rights of MLAs.
This aspect of Parliamentary Privilege may be misunderstood by some resulting in confusion. The Supreme Court of Canada has recognized that Legislative Assemblies have the exclusive right to control access to the Public Galleries. This constitutional right to control their internal proceedings is not subject to the Charter as one element of the constitution cannot be used to override another. A common example is that the mandatory retirement of Senators at age 75 is exempt from s.15 Charter equality provisions related to discrimination on the basis of age. Further it is for the Speaker acting on behalf of the Assembly to determine whether the public can attend proceedings of the Assembly. Although it may seem contrary to modern democratic norms, the public has no right of access to attend a proceeding. The Assembly or LAC, via its delegated powers, can exclude public access to proceedings or the building for any reason. In this case the rationale is not necessarily in the name of public health but to ensure that the individual privileges of MLAs who choose not to wear masks in the House are not infringed.
Now there are several means to resolve this situation to protect MLAs by wearing masks and also allow for public access to the galleries that end in the same result: requiring MLAs to wear masks except for when activity participating in debate:
The motion: To require all MLAs to wear a mask while attending a proceeding of the Legislative Assembly or its committees with the exception of when speaking during debate.
Option 1: With Leave
With unanimous consent of all MLAs present, an MLA can move a mask motion without notice.
Option 2: A Government Motion
After 2 days notice, A member of the Government can move a mask wearing motion under Orders of the Day.
Option 3: An Opposition Members’ Motion
If required notice is provided an opposition can move a mask wearing motion during Opposition Members’ Business on Thursday.
Option 4: A Government Backbencher moving a motion
After the required notice, a Government Private Member can move a mask wearing motion during Orders of the Day subject to being called by the Government House Leader.
Based on the close confines of the Legislative Assembly chamber, it is understandable that despite the relaxation of Public Health Measures, that MLAs may wish to take additional temporary precautions. It would be strongly recommended that any mask wearing motion have a clear end date to prompt a reassessment. Absent a clear end date, a mask wearing motion will cease to have effect on prorogation which may occur in the Spring to accompany a new Speech from the Throne.
Presently there are no mask wearing ‘rules’ in the Assembly for MLAs participating during a Chamber proceeding, under Parliamentary law they are only voluntary. There are presently no restrictions or consequences for those MLAs who choose not to wear a mask. MLAs who wish to ensure additional steps are taken to protect themselves and employees of the Legislative Assembly should strongly pass a motion to require the wearing of masks during a sitting of the Legislative Assembly or its Committees. By doing so, it would then allow for members of the public to once again return to the ‘People’s House”.
