In November the Supreme Court of Canada will hold hearings in as case that could fundamentally alter the landscape of Canadian parliamentary democracy. The case of Alford v. Canada (Attorney General), arising from a challenge to the National Security and Intelligence Committee of Parliamentarians Act (NSICOPA), has ignited a debate over the very essence of parliamentary privilege and its role in maintaining a balance of power between the executive and legislative branches. At its core, the case asks whether the government can, through ordinary legislation, effectively silence parliamentarians and undermine their ability to hold the executive accountable, particularly on matters of national security.
NSICOPA, enacted in 2017, created a committee of parliamentarians with security clearances to review national security and intelligence activities. While ostensibly intended to enhance parliamentary oversight, section 12 of the Act strips committee members of parliamentary privilege if they disclose classified information, even during debates in Parliament. This provision has sparked concerns that it effectively gags parliamentarians and prevents them from fulfilling their constitutional duty to scrutinize government actions.
Parliamentary privilege, a cornerstone of the Westminster system, guarantees freedom of speech and debate within Parliament, shielding parliamentarians from legal repercussions for statements made in the course of their duties. Rooted in the historical struggle for parliamentary independence from the Crown, it ensures that legislators can fearlessly challenge the executive, expose government misconduct, and represent the interests of their constituents without fear of intimidation or prosecution. The Supreme Court has affirmed the necessity of parliamentary privilege for the “proper functioning” of our legislatures and recognized it as a “fundamental constitutional tenet” of our parliamentary democracy.
Professor Ryan Alford, a law professor at Lakehead University and the driving force behind the challenge to NSICOPA, argues that section 12 represents an unprecedented intrusion on parliamentary privilege and a dangerous shift in the balance of power. His legal challenge rests on the premise that parliamentary privilege, particularly freedom of speech, is an absolute right, grounded in unwritten constitutional principles inherited from the United Kingdom. These principles, he contends, are not merely normative guidelines but legally binding constraints on government power, akin to the Magna Carta, safeguarding essential liberties.
The British Columbia Civil Liberties Association (BCCLA), an intervener in the case, echoes Alford’s concerns, emphasizing the indispensable role of accountability and transparency in parliamentary privilege. By curtailing parliamentarians’ ability to speak freely on matters of national security, NSICOPA undermines the legislature’s capacity to hold the executive accountable and inform the public about issues of vital importance.
The implications of the Alford case extend far beyond the specific context of national security. A ruling upholding NSICOPA could set a precedent for further restrictions on parliamentary privilege and embolden the executive to encroach upon the legislative domain. It could effectively transform Parliament from a forum for robust debate and critical scrutiny into a rubber stamp for executive decisions, undermining the very foundations of responsible government.
Critics of the challenge, including some prominent national security law experts, argue that NSICOPA strikes a necessary balance between parliamentary oversight and the protection of classified information. They contend that without restrictions on disclosure, parliamentarians could irresponsibly leak sensitive intelligence, jeopardizing national security and undermining the effectiveness of intelligence agencies. Moreover, supporters of the Act maintain that section 18 of the Constitution Act, 1867, grants Parliament the power to define its own privileges, including the power to restrict them in certain circumstances.
However, this argument fails to address the fundamental issue at stake: the inherent conflict of interest created when parliamentarians are simultaneously tasked with overseeing the executive and bound by executive-imposed restrictions on their freedom of speech. As Rob Walsh, former law clerk and parliamentary counsel of the House of Commons, rightly points out, NSICOPA creates a “fundamental contradiction” for committee members, who are now beholden to both the House of Commons and the government.
Some argue that NSICOPA provides an avenue to have parliamentarians scrutinize security and intelligence agencies, but political scientist Philippe Lagassé contends the NSICOP are not serving in a parliamentary capacity: “They’re there as governor-in-council appointees as part of the executive.”
The Supreme Court’s decision in Alford will ultimately determine whether Canada remains a true parliamentary democracy, where the legislature serves as a check on executive power, or whether it slides further down the path toward executive dominance. The court must recognize that parliamentary privilege is not an archaic relic but a vital safeguard of accountability and transparency, essential for a healthy and functioning democracy. A decision upholding NSICOPA would send a chilling message that the executive branch can, through ordinary legislation, erode fundamental constitutional principles.
International tension is increasing. Government’s first reaction in a time of crisis is to limit free speech. We must hold our leaders to account and to do that we need to know what is going on. Canada’s judiciary must stand firm in defense of the free speech principles that underpin our system of government. We need parliamentarians to be free to speak truth to power, even on matters of national security. Freedom requires eternal vigilance, and transparency allows us to understand and meaningfully engage in the issues. Free and democratic societies demand nothing less.
