A shortened version of this editorial was published under the same title by The Lawyer’s Daily on June 1, 2022.
Barry W. Bussey
On May 13, 2022, Ontario Superior Court Justice J. Fregeau issued his decision in Alford v. Canada (Attorney General)[1] striking down section 12 of the National Security and Intelligence Committee of Parliamentarians Act,[2] (the Act), as being unconstitutional. The plaintiff in the case, Ryan Alford, is a tenured law professor at the Bora Laskin Faculty of Law, Lakehead University, Thunder Bay. Alford “felt compelled by his conscience” to challenge the legislation,[3] even though no one else was willing to join him in his legal pilgrimage.
The case arose in response to a 2017 bill which established a “Committee of Parliamentarians” to review national security operations of Canada’s secret intelligence work. Section 12 of the Act states, “Despite any other law, no member or former member of the Committee may claim immunity based on parliamentary privilege” if prosecuted for disclosing state secrets.
Notice this was not a “Parliamentary Committee” but a “Committee of Parliamentarians,” meaning that, while it was composed of members of the House of Commons, it was set up within the domain of the government – that is, the executive.
Consider the resulting conflict of interests. The members of the legislature are meant to be the peoples’ representatives. They do not represent the “crown” or the executive authority of the government. Why is that important? Because their role is to be a counterweight to government. The executive is to be answerable to the people – the commons. If the people’s representatives are part of the executive through a secretive committee, then: “Houston, we have a problem!”
As well as violating the separation of powers, the Act clearly compromised parliamentary privilege – a concept which has a long and even violent history in the Westminster form of government. It is a principle that was contested on the battlefields of Britain as the forces of King Charles I and Oliver Cromwell engaged in bloody combat. Ultimately, the tumult of the seventeenth century proved the importance of restraining totalitarian rule through the role of parliamentarians – and those parliamentarians had to be free to speak their mind in debate without any fear of reprisal from the crown.
This was the genius of the English Bill of Rights of 1689. According to Lord Acton (who also famously observed that “power tends to corrupt and absolute power corrupts absolutely”[4]), the Bill of Rights made Parliament “supreme in administration as well as in legislation. The king became its servant on good behaviour, liable to dismissal for himself or his ministers. […] Conditional obedience and the right of resistance became the law. Authority was limited and regulated and controlled.”[5]
Today, even though the crown wields only symbolic power, parliamentary privilege remains a necessity as the prime minister’s office (PMO) has risen to fill the vacuum. In essence we have traded one ruler (the monarch) for another (the prime minister). And, as recent events have shown us, when a prime minister wishes, he can exercise authoritarian rule, at least for a time.[6]
As a keen student of legal history, Prof. Alford understood only too well the problems that arise when the executive has unfettered power. We must applaud Alford’s courageous stand in taking Trudeau’s government to task for its overreach in section 12 of the Act.
Alford argued that the section was ultra vires because it restricted constitutionally protected parliamentary privilege and free speech in parliament. If this privilege were to be altered, it must be done by a constitutional amendment as outlined in s. 38(1) of The Constitution Act, 1982, which sets a very high bar for any changes.
Justice Fregeau gave Prof. Alford his nod of agreement. Fregeau observed that “parliamentary privilege is the sum of the privileges, immunities and powers enjoyed by the Senate, House of Commons and provincial legislative assembles, and by each member individually, without which they could not discharge their functions.”[7] It maintains the separation of powers. Further, it “is meant to enable the legislative branch and its members to proceed fearlessly and without interference in discharging their constitutional role, that is, enacting legislation and acting as a check on executive power.”[8]
Thus, parliamentary privilege “is an essential part of Canada’s constitutional democracy, having been constitutionalized through the preamble of the Constitution Act, 1867.”[9] Fregeau held that Parliament has no “constitutional competence to abrogate or restrict parliamentary privilege in the circumstances set out in s. 12 of the Act.”[10] It can only do so, as Alford argued, through a constitutional amendment.
I would not be surprised if somewhere in the PMO and the Department of Justice there is some handwringing, not only at Justice Fregeau’s incisive decision, but also at the temerity of one lone law professor whose conscience motivated him to defend the rule of law.
I suspect that Ottawa will appeal Justice Fregeau’s decision. Once the executive arm of government gets power, it is reluctant to let go. Besides, think of the army of government lawyers who advised the PMO that it was right to limit the privilege of parliament in s. 12 of the Act. Their opinions have now been called into question and they will want vindication. After all, anytime the executive is frustrated in achieving its goal, it is known to be “quite determined, quite firm;” it will “find a way to get it done, one way or another.”[11]
For the moment, however, we can appreciate the great accomplishment of one legal scholar who understood history and human nature; who literally wrote the book on absolute rights which must not be ignored – ever. Such is the influence of one person with a finely-tuned conscience.
[1] Alford v. Canada (Attorney General), 2022 ONSC 2911 [hereinafter, “Alford”].
[2] S.C. 2017, c. 15.
[3] Max Binks-Collier, “An absolute right?” (20 APR 2021) CBA/ABC National, online: https://nationalmagazine.ca/en-ca/articles/law/in-depth/2021/an-absolute-right
[4] Lord Acton, “Letter to Mandell Creighton,” Add. Mss. 6871, p. 60, in John Emerich Edward Dalberg-Acton, First Baron Acton, Selected Writings of Lord Acton, Volume III, Essays in Religion, Politics, and Morality, edited by J. Rufus Fears, (Indianapolis: Liberty Fund, 1988), at 519.
[5] Lord Acton, “The English Revolution,” in John Emerich Edward Dalberg-Acton, First Baron Acton, Selected Writings of Lord Acton, Volume I, Essays in the History of Liberty, edited by J. Rufus Fears, (Indianapolis: Liberty Fund, 1985), at p. 119.
[6] Consider the Prime Minister’s recent invocation of the Emergencies Act, which was ultimately checked by the legislative bodies of Parliament. While the House failed to provide robust opposition, the Senate proved to be more independent. It is my view that the Prime Minister would have kept his emergency powers for much longer than nine days if he had not felt he would lose the Senate vote.
[7] Alford, supra note 1, at para 27.
[8] Ibid., at para 41. See also Rob Walsh, On The House: An Inside Look at the House of Commons (Montreal-Kingston: McGill-Queen’s University Press, 2017). Walsh concurs that “Parliamentary privilege enables members to carry out their parliamentary functions freely as democratically elected representatives of the people” (at 79).
[9] Ibid., at para 44.
[10] Ibid., at para 46.
[11] As Michael Wernick made clear to former Attorney-General Jody Wilson-Raybould on Prime Minister Trudeau’s intent in the SNC Lavalin affair. Wilson-Raybould was booted from cabinet and replaced by a new minister who would be more accommodating to the PM. See Brian Platt, “ Secret recording of Wernick by Jody Wilson-Raybould backs interference allegations in SNC-Lavalin scandal” (March 29, 2019) National Post, online: https://nationalpost.com/news/politics/newsalert-justice-committee-releases-texts-recording-from-wilson-raybould
