The Supreme Court preserves parliamentary privilege, and constitutional coherence

Justice Rowe's reasons are a masterclass of precision and clarity

It was with some relief that I read the Supreme Court’s decision in Alford v. Canada, a case that challenged Parliament’s authority to define (and indeed, limit) the privileges of parliamentarians. The case concerned the National Security and Intelligence Committee of Parliamentarians Act, which would subject parliamentarians serving on the committee (NSICOP) to the threat of criminal penalty for disclosure of any information they obtained in their service on the committee, even if that disclosure happened from the floor of the House or Senate.

In one sense, the Act is novel, in that it narrowly limits what is generally regarded as an absolute protection of free speech for parliamentarians in the Westminster-based system (although the houses of Parliament do limit free speech as a matter of course; members can even be booted from the chamber for speaking out of turn or using ‘unparliamentary language’ — the novelty here is exposing parliamentarians to criminal or ‘external’ liability in court). Thus, for example, parliamentarians are exempt from defamation laws (when speaking from the floor of the House or Senate or during committee proceedings) in order to ensure a freedom to speak and debate without external limits.

Yet a plain reading of the section 18 of the Constitution Act, 1867 makes it clear that Parliament has the authority to define privilege in precisely this matter, as the majority confirmed. Indeed, in an important sense the underlying premises of the litigation were inherently contradictory. Parliamentary privilege as a concept serves to protect the ability of the houses of Parliament to conduct their affairs as they wish. While members enjoy a set of individual privileges to further this aim, it is the collective dimensions of parliamentary privilege — protecting Parliament’s function as a body from interference by the Crown or, indeed, by the King’s courts — that is the overriding principle. Parliamentary privilege does not, and conceptually cannot, protect parliamentarians from Parliament itself, including decisions to limit individual privilege’s in law as enforced by courts.

From the litigant’s perspective, however, by abridging parliamentarians’ free speech, Parliament was unconstitutionally amending the constitution (after all, parliamentary privilege was found to be a part of the Constitution of Canada in the 1993 New Brunswick Broadcasting case). If it is possible to limit the absolute free speech of parliamentarians, it can only be done under the amending formula — and indeed, the trial court found that such a change necessitated recourse to the general amending procedure (requiring approval of seven provinces representing at least 50 percent of the population). This was premised on the idea that the Act altered “the powers of the Senate,” changes to which require the general amending procedure.

But this, too, is counter to the very idea of parliamentary privilege. How could Parliament’s authority to conduct its work as it sees fit be subject to the approval of the legislative assemblies of the provinces? Thankfully, in his reasons Justice Rowe explains that “The phrase “powers of the Senate” in s. 42(1)(b) does not refer to the parliamentary privileges of the Senate but rather to the legislative powers of the Senate as the upper house of Canada’s bicameral Parliament.” [at para. 88]

Justice Rowe’s reasons are a masterclass of precision and clarity, and are well worth reading in their entirety. He manages to provide an accurate explanation of parliamentary privilege, delves sufficiently into the history of both the concept and section 18 of the Constitution Act, 1867.

Importantly, while providing this clarity and upholding the coherence of the Constitution, Rowe neither avoids nor glosses over some challenging underlying questions. For example, if Parliament has the authority to define privileges, could it abolish them entirely?

Here Rowe speaks to the relationship between parliamentary privilege and the rest of the Constitution’s ‘architecture’. I don’t always love the architecture concept. I have written elsewhere that it can be amorphous, and it relies on judges’ capacity to accurately define the different processes, institutions, values, and powers animating the Constitution, and their relationship to each other. Because the Constitution is the result of political agreements, compromises, and was developed over centuries, the idea of treating it as a pristine legal edifice with no ‘gaps’ or ‘inconsistencies’ is problematic (stay tuned for an entire book on this from myself and my friend Phil Lagassé).

Yet here Rowe is both accurate and precise when he explains that what is amendable under section 18 must be limited to parliamentary privilege itself, but “must also be informed by Parliament’s essential character.” [at para. 65]. Were Parliament to attempt to make changes to ‘parliamentary privilege’ that were so broad they would fundamentally change features of Parliament that are protected elsewhere in the Constitution, then it would be acting beyond the bounds of section 18 and implicating constitutional features outside its scope and implicating the broader amending formula. As Rowe notes: “s. 18 must also be read harmoniously with the Constitution as a whole, including other parts that expressly relate to the functioning of Parliament. An example is the right to use either English or French in debates and other proceedings of Parliament, guaranteed by both s. 17(1) of the Charter and s. 133 of the Constitution Act, 1867. Other examples of provisions expressly directed at the internal operation of Parliament are ss. 53 and 54 of the Constitution Act, 1867, which relate to the financial procedures in the House of Commons.”

This is in Rowe’s view analogous to the limits imposed on Parliament’s unilateral amending authority under section 44 of the amending formula, which “gives Parliament the authority to amend provisions of the Constitution that relate to the federal government so long as the resulting amendment does not affect provincial interests or alter the fundamental structure of the Constitution.” [at para. 66] (And I was pleased to see Rowe cite Warren Newman’s chapter in my book, Constitutional Amendment in Canada (University of Toronto Press, 2016) on this point!)

Rowe explains that deference is called for when Parliament decides to define or limit privileges, but there are limits on section 18 set by (and features explicitly and implicitly protected by) the Constitution, and thus “s. 18 could not properly be relied upon as the source of authority to effectively abolish parliamentary privilege as a whole. Nor could it be used to fundamentally impair the ability of the Houses of Parliament to carry out their essential functions as deliberative law-making assemblies in which the executive is held to account.” [at para. 70]

Rowe thus outlines the three constrains on section 18 as the following: “First, Parliament cannot grant itself privileges, immunities, or powers that exceed those of the British House of Commons at the time of the grant. Second, s. 18 cannot be used in a manner that would fundamentally undermine Parliament’s function as a legislature in Canada’s Westminster-style parliamentary democracy, as this would run counter to its purpose. And third, s. 18 must of course be used consistently with other provisions of the Constitution that expressly relate to the functioning of Parliament.” [para. 72]

This is apt. And while there might conceivably be some challenging hypotheticals (what if Parliament decided to subject parliamentarians to the same defamation law the rest of us are subject to? Would that impair Parliament’s functioning as a deliberative body to an extent that runs afoul of this ‘architectural’ understanding?), it is an appropriate standard by which to approach the issue, and consistent with past jurisprudence around constitutional amendment.

The only dissent comes from Justice Côté. I have not done a quantitative analysis, but Côté has clearly emerged as the Court’s “Great Dissenter”. Without any disrespect intended, I honestly wouldn’t be surprised to see Justice Côté dissent on the question of whether the Earth revolves around the sun. Interestingly, she agrees with Rowe’s approach to the central issues and to section 18 specifically. But she sees the Act itself as exceeding those bounds. I will have more to write about this dissent in a future post. For now, I am pleased to see such a cogent approach to the issues by Justice Rowe and the rest of the Court.