APPEAL WATCH: Alford v Canada (Attorney General) and Parliament’s Power over Privilege

What gives way first — Parliament’s power to control its own process, or Parliamentarians’ right to speak freely without fear of prosecution? The Supreme Court of Canada (“SCC”) will soon grapple with this question. It has granted leave [41336] to appeal the Court of Appeal for Ontario’s (“ONCA”) decision in Alford v Canada (Attorney General), 2024 ONCA 306 [Alford]. At issue before the SCC will be whether Parliament can permissibly detract from the scope of Parliamentary privilege on matters of national security pursuant to Section 18 of the Constitution Act, 1867, 30 & 31 Vict, c 3 [Constitution Act, 1867]. 

Facts

The National Security and Intelligence Committee of Parliamentarians Act, SC 2017 c 15 [NSICPA] creates a committee of Parliamentarians appointed by the Governor in Council who, once appointed, have the authority to access classified national security and intelligence information (Alford, para 4). The committee is charged with reviewing any activity carried out by a department that relates to national security or intelligence (Alford, para 15). Every year, the committee presents a report to the Prime Minister detailing the results of its reviews, which is tabled in House and Senate committees (Alford, para 16). Due to the sensitivity of the information involved, members (who join the committee voluntarily) are prohibited from disclosing information they came across in the course of their duties (Alford, para 21). Section 12 of NSIPCA prevents committee members from claiming Parliamentary immunity if they become involved in a proceeding based on the improper disclosure of information obtained while on the committee (Alford, para 7). This means that statements made in Parliament or in a committee by a committee member become admissible as evidence against the member to prove improper disclosure (Alford, para 7). 

Traditionally, statements made in a Parliamentary context are protected by the constitutional principle of Parliamentary privilege. Canada inherits the tradition of Parliamentary privilege from the United Kingdom by virtue of the preamble to the Constitution Act, 1867, which provides for “a constitution similar in principle to that of the United Kingdom.” (Alford, para 37) Parliamentary privilege is the legal immunity provided for Members of Parliament for acts undertaken in Parliamentary proceedings. Its function is to allow Parliamentarians to conduct their work freely and openly, without undue interference from the courts or the executive (New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC)). Section 18 of the Constitution Act, 1867 gives Parliament the power to define, by way of legislation, the powers, immunities, and privileges of the federal Parliament and its members, “from time to time.” (Alford, para 38)

Judicial History

While no one affected by NSICPA has ever challenged its constitutionality, law professor Ryan Alford sought judicial review of the NSIPCA on the basis that it ran afoul of Parliamentary privilege. He argued that NSICPA curtails freedom of speech and debate in Parliament insofar as the speech or debate constitutes improper disclosure of information. In his view, Parliamentary privilege is absolute and must remain unfettered to facilitate proper democratic functioning (Alford, para 8). The application judge accepted Prof. Alford’s argument and found Section 12 of NSICPA ultra vires (Alford, para 31). The application judge held that Parliamentary privilege is an essential part of Canada’s constitutional democracy, and has been constitutionalized in the preamble to the Constitution Act, 1867. Further, Parliament’s legislative authority to define Parliamentary privilege under Section 18 of the Constitution Act, 1867 does not allow Parliament to abrogate Parliamentary privilege in the circumstances set out by NSICPA without a constitutional amendment (Alford, para 32). Thus, Section 12 of NSICPA was an impermissible restriction on Parliamentarians’ freedom of speech.

Issue

The ONCA was seized with a single issue: does Section 12 of NSICPA fall within the scope of Parliament’s authority to define, from time to time, the scope of its Parliamentary privilege?

Decision

A three-judge panel of the ONCA (Doherty, Brown, and Trotter JJA) overturned the application judge’s decision and found that Section 12 of NSICPA was a permissible use of Parliament’s power to define Parliamentary privileges. Writing for the panel, Doherty JA held that the plain text of Section 18 of the Constitution Act, 1867 is unequivocal in its delegation of power to Parliament to define its privileges by way of legislation (Alford, para 43). The language of Section 18 places no limits on how Parliament can choose to define its privileges, nor does it limit Parliament’s ability to alter certain legislated privileges, immunities, or powers (Alford, para 44). The plain textual reading of Section 18 is bolstered by reference to fundamental organizing constitutional principles, such as the independence of Parliament from executive and judicial interference (Alford, para 46). Indeed, the very purpose of Parliamentary privilege is to protect Parliament’s independence. Section 18 promotes Parliamentary independence by recognizing Parliament’s ability to define or limit the scope of its own privileges, if desired (Alford, para 47). Doherty JA distinguished this case from one in which the executive or a third party sought to limit the scope of Parliamentary privileges. NSICPA involves Parliament, by its own volition, and using its own processes, limiting Parliamentary privilege. Interpreting Section 18 to allow these types of actions is “consistent with the fundamental principles underlying Canadian democracy.” (Alford, para 48)

Ultimately, while Doherty JA conceded that Section 12 limited the right to free speech and debate in Parliament, it did so only to a very limited extent (Alford, para 57). NSICPA only prohibits disclosure of specific information gleaned from committee membership, not specific questions or speeches related to national security matters (Alford, para 55). Nor does it limit Parliament’s privilege to compel the production of documents or testimony, even that relating to matters of national security (Alford, para 56). Because the legislation was both carefully tailored and Parliament’s own attempt to limit its privileges, it fell squarely within the scope of Section 18 of the Constitution Act, 1867. 

Analysis

Two Dimensions of Parliamentary Privilege

In my view, the ONCA decided this appeal correctly. Overall, the parties appeared to be fundamentally divided on the issue of whether Parliamentary privilege should be construed positively or negatively. Prof. Alford and his supporting interveners adopted a negative view of Parliamentary privilege — that is, Parliamentary privilege protects freedom from prosecution or liability for acts undertaken in the Parliamentary context. The Attorney General of Canada, and ultimately, the ONCA, emphasized the positive dimension of Parliamentary privilege — which includes Parliament’s freedom to control its own process. While the two dimensions of Parliamentary privilege coexist, in my view, the positive dimension is controlling, and is bolstered by Section 18 of the Constitution Act, 1867. Parliamentary privilege is rooted in Parliament’s independence from executive and judicial interference (Alford, para 46). By virtue of its status as an independent body, Parliament’s ability to control its own process also means its ability to define the scope of its privileges (whether expanding or restricting them) pursuant to Section 18 without executive or judicial interference. Doherty JA was right to distinguish this case from one in which a third party or the executive attempts to define Parliamentary privileges.  I ultimately see no reason why Parliament cannot define its own privileges through repealable and amendable legislation passed pursuant to a valid legislative process by a majority of its own members. This is particularly true on the facts of Alford, seeing as membership in the NSICPA committee is voluntary and Members of Parliament join it with full knowledge of its limitations.

SCC on Parliamentary Privilege – An Incoming Split Decision?

The SCC most recently addressed Parliamentary privilege in Canada (Attorney General) v Power, 2024 SCC 26 [Power]. Power resulted in a deeply fractured court, which produced three separate opinions, two of them dissenting. A five-judge majority in Power held that Parliament holds only limited immunity when drafting and enacting legislation, and thus, damages may be available for clearly unconstitutional legislation passed in bad faith — i.e., where “the state… knew that the law was clearly unconstitutional, or was reckless or wilfully blind as to its unconstitutionality.” (Power, para 105) This necessarily involves, to some degree, a probe into the inner workings of Parliamentarians during the lawmaking process. Jamal and Kasirer JJ, forming the first dissenting opinion, rejected the majority’s ruling on the availability of damages and found it to be an impermissible entrenchment on Parliamentary privilege. They held that Parliamentary privilege is a corollary to the separation of powers, and is an essential component of the constitution of Canada (Power, para 156). Activities encompassed by Parliamentary privilege are not reviewable, even if they are alleged to have violated the Charter, and accordingly cannot form the basis for a remedy of damages (Power, para 164). Rowe and Côté JJ’s dissenting opinion was the most heavy-handed on the issue of Parliamentary privilege. They held that anything less than complete immunity from damages for unconstitutional legislation would impermissibly subtract from Parliamentary privilege, commenting that the “unimpeded functioning of Parliament is not an anachronism… it is foundational to liberal democracy.” (Power, para 529)

All of this is to say that the SCC has recently split on the issue of Parliamentary privilege, and may do so again. While there are important distinctions between Alford and Power (particularly on the issue of who is seeking to limit Parliamentary privilege — Parliament or a separate party), Alford raises important questions about the interpretation of Parliamentary privilege. Inferring from Power, Rowe J, Côté J, Jamal J, and Kasirer J appear to be strong defenders of Parliamentary privilege. In my view, the most interesting question will be how these members of the SCC, particularly Rowe J and Côté J, conceptualize an exercise of Section 18. Will they side with the “negative privilege” view advanced by Prof. Alford and seek to maximize freedom of expression, or will they accede to the “positive privilege” view and accept Parliament’s freedom to restrict its own privileges? The judges who formed the majority in Power somewhat eschewed a fulsome discussion of Parliamentary privilege in their reasons, and I will be interested to see where they fall in resolving this appeal.