This is an unprecedented, and in Westminster-model countries unparalleled, surrender of the strong free speech privileges of Parliament
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Little press notice has been taken (with an interesting French-language exception) of last month’s decision by the Ontario Court of Appeal in the case of Alford v. Canada, a test of the constitutionality of the Liberals’ “National Security and Intelligence Committee of Parliamentarians” (NSICOP) scheme for safeguarding sensitive national-security information. NSICOP is a “committee of parliamentarians” that’s not technically a committee of Parliament, which is a hint that there is some square-circling going on here.
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MPs and senators are invited onto the committee, checked out by the spy establishment and given the authority to view state secrets if they pass muster, but they are required by the NSICOP statute to surrender their right to speak about some of what they learn in Parliament itself, on pain of official secrets prosecution. This is an unprecedented, and in Westminster-model countries unparalleled, surrender of the strong free speech privileges historically attaching to parliamentary activity.
But, to be sure, it’s a surrender passed into law by Parliament itself. Does our deep constitution permit this? Lakehead University law professor Ryan Alford thinks not: he believes (and argued at length in his hyper-instructive 2020 book Seven Absolute Rights) that parliamentary privilege is incorporated into the British North America Act’s 1867 guarantee of a “Constitution similar in principle to that of the United Kingdom.”
Alford insists that a full constitutional amendment, rather than an ordinary act of Parliament, would be required to permit MPs and senators to voluntarily accept the national security muzzle of an obtruding executive. In 2022, with backing from the Canadian Civil Liberties Association, he persuaded a Superior Court judge, John Fregeau, to declare the whole NSICOP fudge invalid.
The Ontario Court of Appeal has now unanimously reversed Fregeau’s decision, viewing the legal controversy from the opposite logical starting point: i.e., that the independence and primacy of Parliament requires courts to defer to Parliament’s own definition of its privileges, including new statutory restrictions on those privileges. In the appeal court’s view, it is Prof. Alford who is fooling with constitutional fundamentals by challenging Parliament’s power to make rules for itself and its members.
Which argument you buy may depend on which text you read last — Alford’s book, Fregeau’s concurrence with it or the appeal court’s contradiction of it. Prof. Alford told Radio-Canada he is considering seeking leave to appeal to the Supreme Court. If the Supreme Court refuses leave, or re-hears the issue and upholds the Ontario Court of Appeal, we will certainly be left with a historically novel possibility: the arrest, prosecution and detention of parliamentarians for violating official secrets legislation on the floor of a house of Parliament.
National Post
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06.05.2024
This is an unprecedented, and in Westminster-model countries unparalleled, surrender of the strong free speech privileges of Parliament
You can save this article by registering for free here. Or sign-in if you have an account.
Little press notice has been taken (with an interesting French-language exception) of last month’s decision by the Ontario Court of Appeal in the case of Alford v. Canada, a test of the constitutionality of the Liberals’ “National Security and Intelligence Committee of Parliamentarians” (NSICOP) scheme for safeguarding sensitive national-security information. NSICOP is a “committee of parliamentarians” that’s not technically a committee of Parliament, which is a hint that there is some square-circling going on here.
Enjoy the latest local, national and international news.
Enjoy the latest local, national and international news.
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