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Executive power and the limits of Parliamentary privilege

Why restricting the latter was found to be unconstitutional.

Parliament at dusk
Photo by Robbie Palmer on Unsplash

Limiting the parliamentary privilege of the MPs and senators who make up the National Security and Intelligence Committee, is beyond Parliament's competence, it seems.  Justice John Fregeau of the Ontario Superior Court declared Section 12 of the Act which created NSICOP ultra vires following a challenge by Lakehead University law professor Ryan Alford. The provision prohibits parliamentarians from invoking privilege as a defence if prosecuted for disclosing state secrets.

NSICOP has been under scrutiny for the past year, as Conservative MPs briefly boycotted the committee over the issue of the release of unredacted documents related to the dismissal of two scientists at the National Microbiology Lab in Winnipeg. While the government released the unredacted documents to NSICOP, Conservatives argued that the Prime Minister's Office held too much sway over the committee, thereby avoiding accountability.

"It has a really broad precedential effect," says Alford of the decision. "It's the first time in history that there's been a recognition that an unwritten constitutional principle provides a basis for striking down legislation. That's very broad. The notion that federal legislation can be struck down because it doesn't comply with a portion of the Constitution that is neither the Charter, or the federalism sections of the 1867 Act, is very novel."

Alford notes that previous references on the Supreme Court and Senate reform involved legislation that had not been put into effect, whereas this was enacted legislation.

Emmett Macfarlane, a political science professor at Waterloo University who studies constitutional law and the Supreme Court, finds the ruling weak when establishing why Parliament is precluded from limiting privilege in this manner.

"The plain text of Section 18 of the 1867 [Constitution] and purpose seem to me to clearly allow Parliament to limit privilege as it sees fit," Macfarlane says. "On the question of whether or not a formal constitutional amendment is required to do so, it seems clear to me that this is what Section 44—Parliament's authority to enact changes affecting the House and the Senate—is for."

Macfarlane says that it becomes meaningless if Section 44 doesn't apply in this context. It is intended to preserve for Parliament some capacity to make constitutional changes affecting parliamentary institutions or the executive.

"It's not enough to simply cite the Senate Reform reference for evidence that the general amending formula should apply here," Macfarlane says. "The judge put no effort into evaluating the differences between Senate reform that the court found implicates the interests of provinces, versus this—a purely federal matter, and the privilege of Parliamentarians. I don't see the way provincial interests are at all implicated."

Alford disputes this reading, citing that Section 44 is subject to the exceptions stated in Section 42, one of which is the powers of the Senate, which has the power to control its own privileges, which some senators raised during debate.

"To say that you don't have that power anymore, that [it] now resides in the executive, and they can initiate criminal proceedings based on saying something in the Senate, it's pretty clear that this implicates the powers of the Senate," says Alford.

Alford also points out that the legislation did not explicitly invoke Section 44 to limit the privileges.

"If you take a look at every single time that there's been legislation passed that is a constitutional amendment, the legislation is styled 'Amendment of the Constitution Act 1867'," Alford notes. "They've done this a number of times. Right in the title of the legislation, they make it clear that's what they're doing it. This is an implicit amendment, but nobody can argue that it's implicit because the argument was that it didn't amend the Constitution."

According to Macfarlane, it's an "absurdly broad" reading of Senate powers to say they include privilege within that ambit.

"The Supreme Court itself has found that privilege is part of the constitution, but it pointed to the preamble of the 1867 Act—it did not point the powers of the Senate as evidence of the entrenchment of parliamentary privilege as a constitutional principle," Macfarlane says, adding that this is about the legislative powers of the Senate and their powers in relation to the House of Commons.

"This decision is one of the most plainly incorrect decisions that I've seen in recent years at any level in the judiciary," Macfarlane adds.

NSICOP is structured as a committee of parliamentarians that reports to the executive rather than a parliamentary committee. The distinction is important precisely because the government was attempting to limit parliamentary privilege as part of the swearing MPs and senators into the committee under the Canada Evidence Act.

Philippe Lagassé, the Barton Chair in International Affairs at Carleton University, studies how Westminster parliaments structure their security and intelligence committees. He also has concerns about the ruling limiting Parliament's ability to restrict privilege.

"If this ruling does hold up, then any reason to have NSICOP as what it is today disappears," Lagassé says. "The whole argument for why it couldn't be a legislative body was that for whatever reason, you needed this safeguard, and in the absence of the safeguard, they would just be able to say anything, and now that is the case again."

Cara Zwibel, director of the fundamental freedoms program at the Canadian Civil Liberties Association, says the Ontario Superior Court ruling confirms that Parliament acted in a way that abrogated privilege, which is a constitutional matter that can't be changed by way of a regular statute.

"Our intervention in the case was in part to show that other Commonwealth countries have managed to deal with the national security issue without getting rid of parliamentary privilege, so that message also came through to the Court," Zwibel says.

Lagassé says there are practical considerations to the NSICOP structure beyond simply limiting privilege. Parliamentarians must be privy to information that can be stored securely in an environment where computer systems are compatible with higher classification levels, and staff is trained with security clearance to support the committee.

There are currently no secured areas like this on Parliament Hill (and in the Centre Block, pre-renovation, certain washrooms needed to be blocked off during caucus meetings as sound carried through the vents). 

Lagassé suggests that now is the time to consider accommodating the need for such places. "It couldn't be a standing committee—it would have to be a statutory committee like they have in the UK or Australia, where they have these support systems adding in, and it needs to be thought of now, while they're renovating," Lagassé says.

Lagassé notes that Australia has provisions that limit privilege in their committee. In the UK, the prime minister can redact information from their reports before being tabled in Parliament.

"It was very novel [in Canada] to locate this within the executive branch, but with a set-up that somewhat constitutes a bait-and-switch because it looks like a parliamentary committee without having the inherent powers of a parliamentary committee," Alford says.

Skeptics will say that it was designed this way to suppress controversies, which risks seducing people to embrace borderline "conspiratorial takes," says Alfrod. "Just to avoid that concern, why don't we go with what every other Westminster democracy has done with intelligence oversight?"

What's odd about NSICOP, he adds, is the notion that we can't trust members of Parliament with sensitive information when really it's the executive that is responsible to MPs under our system.

On the other hand, says Lagassé, it's essential to get parliamentarians used to dealing with classified information.

"You have lots of instances where legislators throughout the world who aren't experienced don't do a good job of that," Lagassé notes. "That is a problem. It's a question of how do you get them there, and I think the underlying thing with NSICOP is that I've never understood why we say that it wouldn't be able to work in a parliamentary setting, given that the only distinction is just that they are wearing a slightly different hat."

To that end, NSICOP has shown that parliamentarians can deal with classified information. The question now is how to turn this into a legislative setting.

The federal government has not yet stated whether it will appeal the decision.