In its recent decision, Alford v. Canada, the Supreme Court of Canada held that the Constitution grants Parliament the authority to define the scope of parliamentary privileges, immunities and powers, including limiting privilege in respect of national security information.[1]
The National Security and Intelligence Committee of Parliamentarians Act[2] (the Act) prohibits disclosure of protected information and denies the members any immunity based on parliamentary privilege for such disclosures. The appellant, a law professor, challenged Parliament’s ability to deny parliamentary privilege to members on the basis that it limits freedom of speech in Parliament and the ability of the House of Commons and the Senate to set and enforce their own rules.
Professor Alford succeeded at first instance. Justice Fregeau of the Ontario Superior Court of Justice found that Parliamentary privilege, along with the freedom of speech and debate, are essential components of Canadian democracy. Accordingly, he found that the limitation of that privilege required a constitutional amendment.
The Court of Appeal for Ontario unanimously allowed the appeal, finding that the NSICOP Act was within Parliament’s authority. The Supreme Court of Canada agreed.
Background
The Act came into force in 2017. It establishes a committee with the mandate of overseeing Canada’s national security and intelligence apparatus (the Committee). Committee members are appointed by the Governor in Council. By virtue of its mandate, committee members regularly review sensitive national security information.
Section 11 of the Act prohibits the disclosure of protected information obtained by committee members through their participation on the Committee. Section 12 of the Act specifies that committee members may not claim immunity based on parliamentary privilege in a proceeding related to their disclosure of protected information contrary to s. 11 of the Act.
The Supreme Court of Canada’s decision
In a split decision, the Supreme Court of Canada dismissed the appeal.
Justice Rowe, writing for the majority, held that parliamentary privilege refers to the legislative bodies’ exclusive authority to set and enforce their own rules and to conduct their own proceedings without interference from the courts. He noted that while the common law recognizes parliamentary privilege, it was not its source, as the privilege and the power to define it are inherent to Parliament. He held that the courts should be cautious in reviewing a legislative decision to define parliamentary privilege, given that the very purpose grounding parliamentary privilege is to prevent outside influences from shaping what is said in Parliament.
Crucially, parliamentary privilege is entrenched within s. 18 of the Constitution Act, 1867.[3] Section 18 acknowledges that the privileges, immunities and powers held by both the Senate and House of Commons may be defined, from time to time, by Parliament, subject to the limit that they not exceed the privileges, immunities and powers held by the British House of Commons as of 1867. Similar language is found in s. 4 of the Parliament of Canada Act.[4]
Justice Rowe affirmed the following confines of Parliament’s ability to define (and limit) parliamentary privilege:
- Parliament cannot grant itself privileges, immunities or powers that are greater than those held by the British House of Commons in 1867;
- Section 18 of the Constitution Act, 1867 cannot be used in a manner that would fundamentally undermine Parliament’s function as a legislature in Canada’s Westminster-style parliamentary democracy; and
- Section 18 of the Constitution Act, 1867 must be used consistently with other provisions in the Constitution that expressly relate to the functioning of Parliament.
Justice Rowe went on to hold that s. 12 of the Act was within the scope of the authority conferred to Parliament by the Constitution, and that s. 12 does not alter the role of the Senate or the courts within Canada’s constitutional architecture. In her dissent, Justice Côté found that s. 12 of the Act was overbroad, unprecedented and unconstitutional as it reduces the freedom of speech in Parliament with severe criminal penalties.
Conclusion
The Court’s decision aligns with the normative respect that the Supreme Court of Canada shows for the separation of powers. While Alford will certainly be a leading authority on parliamentary privilege in Canada, it will also likely be a persuasive authority in determining when and where a matter is appropriately one of judicial oversight or legislative discretion.
It is also clear that Parliament may limit parliamentary privilege in certain defined circumstances. Rowe made note of the context in which s. 12 operates: the oversight of Canada’s national security apparatus through the Act. It follows that there may be other circumstances that warrant a similar deprivation of parliamentary privilege.
Less clear is what protections are core to parliamentary privilege such that they cannot be limited. Justice Rowe makes reference to protections that relate to Parliament’s essential character. He appears to suggest, at paragraph 76, that freedom of speech in Parliament is part of Parliament’s “essential character,” but the confines of that right must be defined more sharply, given that the Court has now identified a valid limitation.
For any questions, please reach out to Thomas Nichini and Jarren Fefer (articling student).
