The Ontario Court of Appeal comes to the rescue of constitutional coherence

Overturning the trial court in Alford v Canada (Attorney General)

A couple of years ago an Ontario Superior Court judge issued one of the worst constitutional decisions in contemporary Canadian history. By ‘worst’, I don’t mean immoral or even “bad for its outcome.” I mean worst in the sense of its reasoning, its wrongness, its incorrect and incoherent vision of key components of the constitution.

This was the decision in Alford v. Canada (Attorney General), which was a constitutional challenge to limits a federal statute imposed on the parliamentary privileges of members of the National Security and Intelligence Committee of Parliamentarians (NSICOP). The law establishing the committee “disentitles members or former members of the Committee from claiming immunity based on parliamentary privilege in a court proceeding against them arising from the disclosure of specific information obtained while exercising their role” on the Committee. Thus, it served to expressly limit the scope of parliamentary privilege, albeit in a relatively narrow context.

There is a very real and valid policy debate to be had about whether NSCIOP in its existing form is the appropriate method of providing any degree of oversight over the executive in its handling of national security matters. But the the authority of Parliament to limit the parliamentary privilege in this manner should have been uncontroversial. Section 18 of the Constitution Act, 1867, plainly authorizes Parliament, via statute, to define parliamentary privilege as it sees fit. The only limit on this power is also explicitly laid out in the text, and that is that Parliament cannot expand or create new privileges beyond those held in the Imperial Parliament.

Despite the clear constitutional authority afforded by section 18, the litigation asserted that any changes to parliamentary privilege were beyond Parliament’s authority because they amounted to an amendment of the Constitution of Canada. Even if this was the case, one might naturally think that Parliament could nonetheless exercise its unilateral amending authority under section 44 of the Constitution Act, 1982, given that parliamentary privilege is - by definition! - the exclusive concern of the two houses of Parliament. Instead, it was argued that in fact any such amendments could only be effected under the general amending formula, requiring the consent of at least seven provinces representing at least 50 percent of the population. Stunningly, the trial court agreed, and declared the relevant provisions of NSCIOP Act unconstitutional.

One of the complicating features of the case - and what likely threw the trial judge far off course - was the Supreme Court’s 1993 decision in New Brunswick Broadcasting holding that the parliamentary privileges of provincial legislative assemblies were part of the Constitution of Canada under section 52 of the Constitution Act, 1982 (constitutionalized via the preamble to the Constitution Act, 1867, which holds that Canada’s constitution is “similar in principle to that of the United Kingdom” - a questionable decision its own right, given the UK constitution is not one comprised of supreme, entrenched law). The caselaw thus effectively entrenches parliamentary privilege in a way that posits it as equivalent to the written, entrenched provisions of the constitution.

Yet even within this context the trial court decision got multiple things badly, terribly wrong. It fundamentally misunderstands and misconceptualizes the nature of parliamentary privilege. The freedom of expression of individual members of Parliament, while an integral part of parliamentary privilege, is not a right for the benefit of the members. Parliamentary privilege has collective and individual elements, but the overall purpose of parliamentary privilege is collective, that is, to ensure the functioning of the houses of Parliament, their ability to govern themselves as they see fit, and exercise their representative and accountability roles. The individual privileges of the members operate only in service of that collective function. Moreover, those individual privileges, contrary to how they are often portrayed, have never been absolute (for example, the houses of Parliament have always created and enforced rules about who can speak and when, as well as enforcing content-based restrictions on ‘unparliamentary language’ or on dress codes, the use of political props, etc.).

The presumption that Parliament, in exercising its collective power to govern itself and set its own rules, is not free to place limits on the individual privileges of members of the two houses, flips the entire concept of parliamentary privilege on its head. The protective function of parliamentary privilege was, historically, to prevent outside interference on Parliament’s operation from the monarch. In contemporary politics, it serves to protect decisions on its internal operation from judicial review. Nothing about parliamentary privilege serves to protect members from Parliament itself!

The trial court also misapplies the amending formula when it suggests an amendment is required under the general amending procedure. Properly understood, nothing about the jurisprudence, including the ‘constitutionalization’ of parliamentary privilege, mitigates or removes section 18’s status as an entrenched instrument empowering Parliament to define privileges as it sees fit. Nor did the introduction of the amending formula in 1982 purport to alter section 18’s application.

In fact, the claim that recourse to the general amending procedure is required - the idea that the provinces must consent to changes to the individual privileges of members of the federal houses of Parliament - is itself contrary to parliamentary privilege (not to mention any coherent ‘principle’ of federalism)!

Thankfully, the Court of Appeal unanimously, and in a commendably straightforward manner, restored coherence and sanity to the Constitution. It respected not only the primacy of the text by recognizing that section 18 affirms Parliament’s authority in this context, but also to the concept of parliamentary privilege itself.