Court concludes curbing parliamentary immunity of spy watchdog members is constitutional

The law professor who challenged legislation restricting the free speech of parliamentarians on a committee that oversees national security and intelligence issues says he will likely seek leave from the Supreme Court to appeal a recent court decision upholding the restriction.

Ryan Alford of Lakehead University says he is “deeply concerned” by how the decision affirms that Parliament can not only legislate limits to fundamental parliamentary privileges, but also that its authority to do so is absolute.

“By that logic, they could eliminate parliamentary privilege entirely,” he says.

Alford launched a constitutional challenge to Section 12 of the National Security and Intelligence Committee of Parliamentarians Act in 2017. He’s argued that barring a constitutional amendment, MPs and senators on the National Security and Intelligence Committee of Parliamentarians (NSICOP) cannot be stripped of the legal immunity that shields them from lawsuits and prosecutions for what they say during parliamentary proceedings.

Rather, they must be free to act as whistleblowers who can reveal state secrets in the event the agencies they oversee abuse their powers.

The Ontario Court of Appeal did not agree, stating that any member who improperly discloses classified information cannot claim parliamentary immunity and could face criminal prosecution.

“Put bluntly,” they “can go to jail,” Justice David H. Doherty wrote in the April 24 decision.

The unanimous ruling overturned a lower-court decision that found it was unconstitutional to strip members of the NSICOP of their immunity. The Ontario Superior Court of Justice found that doing so would require a constitutional amendment.

The legal immunity at issue in this case — the parliamentary privilege of freedom of speech and debate — is the “cornerstone of the constitution of Canada and its parliamentary system,” says Steven Chaplin, former senior parliamentary counsel at the House of Commons.

“It is basically the fundamental principle upon which the independence of Parliament is built.”

The privilege is meant to empower parliamentarians to speak out fearlessly when debating laws and grilling the government. It is considered an “inherent privilege,” meaning that it has constitutional status because it is necessary for Parliament’s proper functioning.

The question at play here was whether regular legislation could be used to curtail this bedrock immunity that allows parliamentarians to fulfill their constitutional role of legislating and holding the government to account within Canada’s system of democracy.

The appeal court found that Parliament can limit this privilege without formally amending the Constitution because Section 18 of the Constitution Act, 1867 allows Parliament to “define” all its privileges, immunities, and powers through legislation, subject to limitation on the extent to which it can expand them. When “defining” its privileges, Parliament can curtail them.

“The court got it right,” says Chaplin, who thinks the restriction is very limited and carefully crafted.

Alexander Gay, counsel for the Attorney General of Canada, the appellant in the case, says the decision “makes clear that Section 18 says what it says, which is crystal clear."

Parliament can “define its own privileges, full stop.”

Alford says the decision’s finding that regular legislation can restrict an inherent privilege sets a “disturbing” precedent.

Green Party of Canada leader Elizabeth May agrees. She says the notion that legislation can change such “a critical principle for parliamentary democracy” is “dangerous.”

“The idea that a Parliament can legislate in ways that change [the] architecture of our democracy … is deeply troubling.”

In 2017, May put forward an unsuccessful motion to remove Section 12 from the bill that would establish the NSICOP. Her opposition to it prompted Alford to ask May if she wanted to be the applicant on the constitutional challenge.

“I wish I hadn’t declined to be involved,” she says.

“I really hope that the Supreme Court of Canada will look at this.”

Supporting Alford in the case as interveners were the British Columbia Civil Liberties Association (BCCLA) and the Canadian Civil Liberties Association (CCLA).

“Any abrogation of those basic rights is concerning,” says Michael Fenrick from Paliare Roland, who represented the BCCLA. “It does set up the possibility, certainly, that a majority government could take away more.”

For her part, Leah West, an expert in national security law at Carleton University, is unfazed.

“That’s why we have the Senate,” she says.

The Red Chamber could block legislation that would further restrict fundamental parliamentary privileges in the event of majority-government overreach, a possibility she considers remote.

For Gay, raising such a scenario is “arguing in the extreme.”

“It’s arguing with hypotheticals,” he says.

Emmett Macfarlane, a political scientist at the University of Waterloo who studies the Constitution, says Parliament can undoubtedly legislate more limitations to its inherent privileges, and that’s not a bad thing.

If Parliament wanted to make parliamentarians subject to defamation law or summonses to testify before a court, for example, “Parliament is absolutely free to do so,” he says.

The Speaker of the House of Commons intervened in support of the appeal to ensure the “legislative authority of the Canadian Parliament over its parliamentary privileges was recognized and preserved,” the office said in a statement.

The Speaker of the Senate also intervened but declined to comment.

“I’m surprised the Speaker of the House and the Speaker of the Senate would intervene in a case like this, frankly,” May says. “I think it’s disappointing.”

As part of his challenge, Alford argued that restricting the free speech of parliamentarians on the NSICOP would undermine Parliament’s ability to hold the government to account. That, in effect, restructures the constitutional architecture of Canada’s democracy, in which the government is responsible to Parliament.

Should a member of the NSICOP learn of classified information about abuse by a national security or intelligence agency, the parliamentarian could not expose it without facing the possibility of prison.

The appeal court found those arguments “overstate” the impact of the legislation. The court said a parliamentarian could still ask questions and make speeches about subjects relevant to the abuse, so long as specific classified information was not disclosed.

Further, the legislation does not stop Parliament from compelling the production of documents or witness testimony relating to national security and intelligence matters. A muzzled parliamentarian could even ask colleagues to order the production of evidence relating to the abuse as long as they do not disclose specific state secrets in the process.

“That nuance in the decision is generally helpful for free speech and debate in Parliament,” says Gannon Beaulne of Bennett Jones, who represented the CCLA.

“That said … independent and minority voices in Parliament will need to very carefully consider the consequences of sitting on the committee.”