In my submission to and appearance before the House of Commons Standing Committee on Procedure yesterday, I argued in favour of amendments to the Constitution Act, 1867 to provide for virtual voting by MPs (in an emergency). 1/n

Now, I didn't raise this just to present an obstacle to ongoing efforts at making Parliament as fully functional as possible during the pandemic. In fact, I emphasized that these amendments can be made by Parliament itself, via an Act of Parliament. 2/n

Others might argue we can just adopt a living tree interpretation of the 1867 Act, such that provisions referring to "the presence of" members in the House, or quorum, etc. can all be read as *including* a 'virtual' presence. 3/n

To be clear, I think that's how courts would interpret the provisions if Parliament went ahead with virtual voting without bothering with amendments. At the very least it would be the politically expedient interpretation. But there are other reasons for formal amendments. 4/n

1) The Fathers clearly envisioned an in-person Parliament. This needn't be a purely or simplistic 'originalist' argument. The 'purposive' approach to interpretation (at times, at least) recognizes the the assumptions embodied in the various provisions of the text. 5/n

2) More importantly, there's an inherent tension between *automatic recourse* to 'living tree interpretation' and the existence of the amending formula. Parliament has the clear capacity to clarify and update the relevant provisions here. It should do so. 6/n

3) As a practical matter, if living tree interpretation justifies the adoption of virtual voting, then it justifies it not just in an emergency context but in normal times. Again, clearly not what the framers had in mind, but also not what we should want in the modern Parliament.

4) Clearly written amendments to the 1867 Act will ensure not only the constitutionality of virtual voting, but Parliament will be able to set out *when* it is permissible (emergencies) for future contingency. 8/n

Clarity is a virtue, and leaving this to guesswork or future judicial interpretation is simply not as conducive to clarity as properly written formal amendments to the text. More specific procedural rules can then be included in the Parl of Canada Act or the Standing Orders. Fin.