An absolute right?

A senator is in shock. Highly classified information shows that the Canadian Armed Forces is participating in a military operation targeting Canadian citizens in drone strikes overseas.

The senator is on the National Security and Intelligence Committee of Parliamentarians (NSICOP), a special review body mandated to review the frameworks within which national security and intelligence organizations operate, as well as any specific activities of these agencies that it so chooses. The senator alerts her colleagues, and the committee starts investigating. But the minister of national defence, acting under the prime minister’s instructions, halts the review on the grounds that it pertains to an ongoing operation and would be “injurious to national security,” a decision he is entitled to make under the committee’s enabling legislation, the former Bill C-22. After all, the NSICOP is an executive-branch committee of 11 parliamentarians who, unlike their peers, have Top Secret security clearances and report to the prime minister.

The committee attempts to notify Parliament of the government’s prevention of the review in the annual report that it tables in Parliament, but it is required by law to submit that report to the prime minister first. The prime minister now makes use of a power granted to him under C-22: he orders that mention of the halted review be redacted on the grounds that this information would be “injurious to national security” or “international relations.” In a crisis of conscience, the senator arranges an in camera meeting of the Standing Senate Committee on National Security and Defence and tells her fellow senators about the ongoing drone strikes. Government officials learn about this meeting, and the Crown prosecutes the senator for disclosing state secrets. Because C-22 forbids the senator from using the legal immunity of parliamentary privilege as a defence, she is convicted and sentenced to prison.

This hypothetical scenario is described in the factum of Ryan Alford, a law professor at Lakehead University who was granted public interest standing to challenge the constitutionality of the provision of C-22 that repeals parliamentary privilege. By including this scenario in his factum, Alford wanted to highlight the limitations that the law built into the committee. While there was some debate among those I interviewed about how realistic this scenario is, it seems plausible to Mary Liston, a law professor at the University of British Columbia who has studied the growth of executive power in Canada.

But “we might not even get there,” she said. Committee members “serve at the pleasure of the prime minister,” she noted. If the prime minister turned on one of them, he could dismiss them “just like that.” Moreover, the prime minister designates the committee’s chair, giving him a lot of power, she added. “It looks like it’s an independent committee, but there are lots of hints that it’s not as independent as you would like.”

Craig Scott, a law professor at Osgoode Hall and former official opposition critic for the NDP, alluded to the committee’s constraints when I asked him why he did not flag the repeal of parliamentary privilege as potentially unconstitutional when testifying about C-22 before a Senate committee studying the bill. “There may have been a prudential calculation on my part,” he speculated at one point. “The NSICOP process was so stacked against effective functioning that I could foresee security officials and lawyers using the many avenues available under C-22 to prevent information from getting to the committee if they did not have this legal liability to remind members about.” (Under the law, the government can withhold “special operational information” whose divulging would be, in its view, “injurious to national security.”)

There is already evidence that information is being improperly withheld from the committee. “The Committee has faced a number of challenges in accessing information based on reasons that are inconsistent with NSICOP’s enabling legislation,” states the committee’s 2019 annual report. Some organizations have “inconsistently” invoked cabinet confidences to not disclose information, and sometimes, they have simply not provided requested records.

These limitations make the NSICOP “political theatre,” said Rob Walsh, former law clerk and parliamentary counsel of the House of Commons. “It’s a joke. It’s Alice in Wonderland.”

If Walsh is right, this is cause for concern, especially considering how some of Canada’s national security and intelligence agencies push up against—and transgress—the boundaries of the law. Alford’s hypothetical scenario was only so fictitious. A 2015 memo reveals that the military did participate in a targeted killing operation against alleged ISIS combatants, among them Canadian citizens, despite acknowledging this might raise “domestic … legal concerns.” And in May 2020, a judge called for a review of CSIS after it was caught repeatedly breaking the law, suggesting “institutional disregard for — or, at the very least, a cavalier institutional approach to … the rule of law.” The NSICOP participated in that review.

Alford’s scenario was not fundamentally about specific deficiencies in the set-up of the NSICOP, however. His depiction of a committee hamstrung by the executive was instead meant to help drive home one of his arguments against the constitutionality of Section 12, the provision of C-22 forbidding parliamentarians from using their privilege as a defence if prosecuted for disclosing state secrets. Repealing parliamentary privilege restructures the fundamental constitutional architecture of our parliamentary democracy. It empowers the executive over Parliament in a manner that impinges on responsible government, the hard-fought arrangement underlying Westminster democracies in which the House of Commons holds the executive accountable—a function the House sometimes must perform by recourse to parliamentary privilege. Such a profound alteration of the basic structure of our system of democratic governance cannot be enacted through regular legislation but must instead be effected via a constitutional amendment, Alford contends. But the professor’s challenge is ultimately more venturesome: it is also a test case for a legal theory that he has elaborated through his scholarship. If he is successful in court, it could set a precedent with potentially far-reaching ramifications for our regime of constitutional rights. 

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In March 1629, the parliamentarian Sir John Eliot, a brilliant orator reviled as a seditious “viper” by the despotic King Charles I, was arrested after a dramatic showdown in the House of Commons. On March 2, two parliamentarians had pinned the Speaker down in his chair to prevent him from leaving after relaying the king’s order that Parliament be adjourned, a command many parliamentarians rejected as unlawful. As the restrained Speaker cried in fear, Sir John Eliot read a fiery speech decrying recent royal policies, including the levying of duties and taxes without Parliament’s consent. Sir John Eliot was taken into custody shortly thereafter. Despite relying on parliamentary privilege as a defence, he was imprisoned in the Tower of London in harsh conditions for three and a half years until he died, becoming a martyr of the parliamentary cause in the English Civil Wars that erupted a decade later.

A constitutional historian, Alford writes in his recent book, Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law, that parliamentarians were recalling political persecution of outspoken adversaries like Sir John Eliot when, in 1689, they passed the Bill of Rights, Article 9 of which declares: “the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” The parliamentary privilege of freedom of speech has since become a keystone of the Westminster system of parliamentary democracy because it enables legislators to discharge one of their main responsibilities, speaking out against the executive, without fear of legal repercussion. The Supreme Court of Canada has even gone so far as to find that parliamentary privileges like freedom of speech are “necessary to [the] proper functioning” of our legislatures, and more profoundly, are one of the “fundamental constitutional tenets” of our parliamentary democracy.

“Freedom of speech and Parliament go together,” said Joseph Maingot, a former law clerk and parliamentary counsel for the House of Commons who wrote a leading treatise about parliamentary privilege in Canada. As for Section 12 of C-22: “In a sense, the whole matter is contemptuous of Parliament,” he said. “Freedom of speech transcends the ephemeral idea of disclosure [of classified information].”

“The ability of legislators to deliberate in an open forum is perhaps the greatest safeguard of a democratic form of government,” the lawyer Nicholas MacDonald wrote in the journal Canadian Parliamentary Review. It is “particularly necessary in matters of national security where the conflict between individual rights and the collective good must be so carefully balanced.” 

Elizabeth May, former leader of the Green Party, told me that parliamentary privilege is “an essential piece of protecting democracy,” despite how “arcane and musty” it seems. May criticized Section 12 in the House of Commons, prompting Alford to ask her if she wanted to be the applicant on the challenge, but she turned the offer down. She would have been “honoured” but was probably too busy, she said. “I sure hope he’s successful with this challenge because it’s pretty fundamental, and it’s brave of one lone law professor to take it forward.” 

For Alford, parliamentary privilege is not just a cornerstone of our parliamentary democracy, but also our rule of law. In his constitutional challenge, Alford argues that because the Preamble to the Constitution Act, 1867 states that Canada’s Constitution is to be “similar in principle to that of the United Kingdom,” it embedded into our Constitution the unwritten principle of freedom of speech in Parliament that underlies Article 9 of the Bill of Rights, 1689. The inheritance of this principle led Canada to also acquire a right to freedom of speech in Parliament, he argues. It’s an absolute right, because there is no legal instrument for derogating from or limiting rights grounded in inherited unwritten constitutional principles—in contrast to Charter rights, which can be either limited or derogated through Sections 1 and 33 of the Charter. 

It is not the only one, either, Alford argues in his book: six other rights, also rooted in constitutional principles, interlock with it to form Canada’s rule of law, “a self-correcting system” of safeguards that emerged over centuries as the Parliament of England promulgated rights that constrained the Crown in its natural inclination towards absolutism, then filled in the loopholes that it slipped through to escape its legal restraints—loopholes like prosecuting parliamentarians who called out its abuses of power. He believes the six other absolute rights are: the right to not be extrajudicially killed; the right to be governed by law, even during emergencies; the right to not be tortured; the right to habeas corpus; the right to not be subject to excessive punishment; and the right of judicial independence.

Alford therefore regards Section 12’s repeal of parliamentary privilege with an alarm that is informed by his scholarship about how 9/11 enabled the American executive to, in certain circumstances, break free of centuries-old legal fetters—including the most venerable, Magna Carta. A turning point for him came after counsel for a civil liberties organization informally consulted him about how they could draw on his scholarship in the 2010 case Al-Awlaki v. Obama, which challenged the president’s authority to kill an American citizen without due process. The challenge was dismissed. Anwar al-Awlaki, an influential imam who promoted terrorism, was killed by a drone strike. “When Barack Obama signed that order, he was the first person to do something like that in the common law tradition since Edward III,” Alford said. “We’re way back in the Middle Ages.”

Canada’s legal order could similarly regress if there are not absolute rights in place to constrain the government after a crisis like a major terrorist attack, Alford argues. If parliamentary privilege can be “implicitly amended out,” then all the absolute rights can, enabling the government to engage in “targeted killing, indefinite arbitrary detention, torture: all that bad stuff we see in the United States.”

But if he wins in court, he hopes he’ll have established a precedent that will help secure judicial recognition that the other six rights have been entrenched into our Constitution too. “That's my long game,” he said. “What I’m trying to do here is to get the [absolute] right not to be extrajudicially killed into the Canadian Constitution, because it's not. There. Now.”

Craig Forcese, one of the foremost experts of national security law, suggested in a 2016 article that if targeted killings fall within the purview of the Charter, the government may be allowed to limit the Charter right to “life, liberty, and security of the person” in exigent circumstances to kill Canadians.

When C-22 passed into law ten days after Alford testified before the Senate on June 12, 2017, warning that keeping Section 12 in it “would be simply buying a constitutional challenge,” he was in a state of consternation. He pitched launching a challenge to civil liberties organizations, but they all declined. Alford felt “crushed” at the prospect of arguing this in court by himself, “just like the lone oddball riding his hobbyhorse.” But he felt compelled by his conscience, he says. When describing this inner conflict, the professor speaks in a register that is philosophical, even spiritual: he likens the call of duty to a Socratic “daimon,” recounts New Testament parables, and references the teachings of Jōdo Shinshū, the Japanese school of Buddhism that he follows.

“I will endure what this requires,” he said. “But it still sucks.”

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In his factum, Alford argues that because Section 12 would empower the executive to police what is said in Parliament, it constitutes “a momentous and unprecedented reconfiguration of the constitution’s architecture — the intricately buttressed structure of responsible government, in which the cabinet is continuously responsible to the House of Commons — and not the reverse, as the executive argued prior to the constitutional recognition of parliamentary privilege. […] Restricting the parliamentary privilege of freedom [of] speech and debate eliminates governmental accountability for certain decisions” in the domain of national security. Fundamentally, his argument is about the integrity of our democracy: Without parliamentary privilege, the linchpin of responsible government, Canada cannot fully embody Westminster parliamentary democracy.

“That’s a brilliant paragraph,” Elizabeth May said. “Cabinet is responsible to report to Parliament, not the other way around. The way section 12 works is to fundamentally reverse the appropriate levels of responsibility, authority, in a democracy.” 

Parliamentarians on the NSICOP are now caught in a “fundamental contradiction,” said Walsh, the former law clerk and parliamentary counsel. They have “two masters,” the House of Commons and the government.

“The House of Commons fought many a bloody battle to establish its independence from the Crown, and my concern with this committee, and having members of Parliament on it, is that it is fundamentally a compromise upon the independence of the House,” he said. Section 12 undermines our parliamentary democracy “insofar as it undermines the separation between the House and the government.”

This perspective contrasts with how Liberal MP David McGuinty, chair of the NSICOP, characterizes the committee. “We’re not here on behalf of the executive of the government of Canada, we’re here as legislators who have a responsibility to continue to hold the government to account,” he told the National Post.

This is a view shared by some of the most esteemed academics studying national security law and Canada’s national security and intelligence apparatus. At the Senate hearing about C-22, where Alford and the former NDP MP Craig Scott spoke, heavyweights of national security law Kent Roach and the aforementioned Craig Forcese co-testified: C-22 was a “long-overdue expansion of parliamentary review of national security activities,” Roach said.

“The notion that this committee undermines democracy is a complete nonsense,” said Wesley Wark, a historian who once authored a classified history of Canada’s intelligence community during the Cold War. “It is important in any democracy that Parliament have a real capacity to scrutinize security and intelligence agencies.” To give parliamentarians that ability, they need access to secrets—but those secrets must be protected. Without circumscribing parliamentary privilege, parliamentarians could “stand up in the House of Commons leaking highly classified information with no consequences,” he said. “If you want to argue that it’s constitutionally improper, then you’re back at the Conservative Party’s square one,” which is “we’re not going to have such a committee.”

There is no academic consensus that the NSICOP provides the type of parliamentary scrutiny that Wark and others want, however. “Members of NSICOP are not serving in a parliamentary capacity,” said political scientist Philippe Lagassé of Carleton University. He has written about the NSICOP and legislative-branch oversight of security and military affairs in Westminster states. “They’re there as governor-in-council appointees as part of the executive. I know the chair likes to say this is a parliamentary committee—it’s not.”

“There is some murkiness introduced to the lines around the separation of powers,” said Emmett Macfarlane, a prominent political scientist at Waterloo University.

However, Macfarlane does not believe Section 12 is unconstitutional. He is persuaded by the attorney-general’s primary argument: stripping parliamentarians on the NSICOP of their privilege falls under Section 18 of the Constitution Act, 1867, which states that parliamentary privileges “shall be such as are from time to time defined by Act of the Parliament of Canada,” so long as such privileges do not exceed the privileges of the U.K.’s Parliament. Nor is Macfarlane convinced by Alford’s view that freedom of speech in Parliament is an absolute right grounded in a constitutional principle. Constitutional principles are meant to fill in gaps in the Constitution’s text, not override it, Macfarlane argued. To rely on such a principle despite Section 18 amounts to “ignoring the text to suit a particular outcome based on a much more vague unwritten principle.”

Alford countered in part that the historical record shows that Section 18 did not grant Parliament the power to eliminate inherent constitutional privileges, but merely to expand its privileges. As for parliamentary privilege being an absolute right based in a constitutional principle: the Supreme Court’s precedents back him up, he retorted. These are “binding constitutional principles that create adjudicable rights that are broader than, and anterior to … Section 18 of the 1867 Act.”

For Richard Albert, a Canadian law professor at the University of Texas at Austin and an expert of constitutional amendment, the removal of parliamentary privilege not only amounts to a “shift in the balance of powers,” with the executive branch arrogating power from the legislative branch: it is also “constitutionally infirm,” he said—but not for the reasons Alford argues. “Parliament has the power to make this change,” Albert said, but “the proper channels have not been followed.”

Albert believes that repealing parliamentary privilege requires a constitutional amendment, specifically under Section 44 of the Constitution Act, 1982, which enables Parliament to pass laws amending the Constitution in relation to the federal executive, the House and Senate. The attorney-general effectively argues that if repealing parliamentary privilege does amend the Constitution, then Parliament has already done so under Section 44. But “Parliament must say that it’s expressly amending the Constitution … to really let people know that something momentous is happening,” Albert said.

What did Albert make of Alford’s argument that if Parliament can amend what Alford sees as the absolute right of parliamentary privilege through Section 44, then no rights are absolute?

“No right is absolute,” Albert said. “Just as no majority may do whatever it wants to do. […] There’s this dance, there’s this tug-of-war between constitutionalism and democracy.”

Echoing Albert, Walsh reasoned that if Parliament were to try repealing parliamentary privilege under Section 44 of the Constitution Act, 1982, it would have to explicitly draft and vote upon this repeal as an amendment. “They’ve just slipped it in” as a clause in a much lengthier bill, he said. That inconspicuousness makes Section 12 seem like “a backdoor amendment” to Joseph Maingot, the former law clerk and parliamentary counsel.

Walsh homed in on the beginning of Section 12: “Despite any other law, no member or former member of the Committee may claim immunity based on parliamentary privilege …” Those four words are a “lame attempt” to “give this section wings,” Walsh said. “This provision is unconstitutional.”

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Alford expects to appear before the Ontario Superior Court late this summer or early in the fall. As his day in court draws closer, he sees not just parliamentary privilege hanging in the balance, but the judiciary’s position on whether unwritten constitutional principles are absolute limits on government power or are generally best thought of as normative reference points to help judicial reasoning, as Justice Malcolm Rowe of the Supreme Court recently suggested in a speech at a recent conference hosted by the Runnymede Society.

“I live in anxiety of that working its way into the jurisprudence of the court in advance of a severe constitutional rupture or crisis of the 9/11 type,” Alford said. He is burning to persuade the judiciary that there is a principled, historically grounded approach to identifying constitutional principles and interpreting them as the bases of absolute rights so that judges are “insulated from the charge that they’re just making it up as they go along.”

The gravity of the situation bears down on him. “I feel so inadequate because of what’s at stake,” he said.

But “if you’re a good Buddhist, … you try not to think about outcomes,” Alford said over Zoom from his office at Lakehead University. He wheeled around, picked up a framed print of a Buddhist painting on his windowsill, and held it to his webcam.

“This is Fudō Myōō,” he said, introducing a snarling deity who brandished a katana as flames rose from his body. He towered over a monk prostrating at his feet. “That’s the correct attitude in the face of a Wisdom King,” Alford continued. “When you’re not powerful, when you’re not strong, a sword-bearer, and whatever, you have to have the confidence that merely doing what you do, like a monk does, is valuable, because there are spiritual forces that fulfill that for you.

“So, try to be a happy warrior.”