It may not be wise, but Parliament can limit its ability to hold government to account

In the recent decision of Alford v AG Canada 2022 ONSC 2911, the Ontario Superior Court of Justice ruled that the privileges of the federal Parliament could not be limited by legislation passed by Parliament alone, but rather any diminishing or limiting of parliamentary privileges would require a constitutional amendment, including a degree of support by provincial legislatures.     Oddly, the decision would allow the expansion of privileges for the House of Commons and Senate by federal legislation, so long as the expansion did not exceed the privileged of the UK House of Commons at the time of the legislation.

Before outlining my concerns with the decision, first the background.

Like many countries there is a tension in Canada between the need for a government to protect information the disclosure of which could cause damage to national security and Parliament’s ability to hold the government to account.  This accountability function includes issues that have a national security component.   In the case of non-parliamentarians, governments can control access to the information, and back up protection from disclosure with criminal law sanctions.  However, with respect to Parliament, the government is accountable to the House of Commons (and to a lesser extent the Senate) for all aspects of its business, including national security, and can be compelled to produce information to the House or be faced with contempt proceedings and potential loss of confidence.  In addition, any disclosure of information within a parliamentary proceeding would be fully protected by parliamentary privilege such that a person disclosing information in the proceeding would not be able to be criminally sanctioned for such disclosure.  There are various mechanisms used in different countries in order to protect both the security of information and to allow for the necessary parliamentary oversight.  Some are based on parliamentary processes and sanctions, some are legislated, and some are a mixture of both.

To address the issue in Canada, Parliament enacted the National Security and Intelligence Committee of Parliamentarians Act.  The Act set up a committee of parliamentarians with which the government would share secure information.  The committee was not a committee of either House.  Any report or concern would be provided to the Prime Minster who would be able to determine what, if anything would then be tabled in the House.  For the purposes of the Alford case three aspects of the legislated regime are of note. First the committee was not a committee of either House.  Second, the members of the committee had to swear the necessary oaths of secrecy.  Third, and most importantly, section 12 of the Act allowed members to be prosecuted for any disclosure of secret information and disentitled the members from relying on parliamentary privilege for any disclosure that would otherwise be protected by privilege.  In short, members could not discuss the work or information in parliament without the risk of prosecution, and they would not be able to claim the protection of privilege.

Alford, a law professor, brought an application in the Ontario Superior Court of Justice, as a public interest litigant, arguing that the provision limiting parliamentary privilege was beyond the legislative competence of Parliament, and that since parliamentary privileges formed part of the constitution, any legislated limits on privilege would need to comply with the amending provisions of the Constitution Act, 1982.  The court agreed, declared that the provision limiting privilege was unconstitutional and that in order to impose the limit the amending provisions of the constitution requiring substantial provincial agreement must be followed.

The reasoning of the court is relatively straight-forward.  The preamble of the Constitution Act, 1867 provides that the constitution of Canada is similar in principle to that of the United Kingdom.  This means that Canada’s government is a Westminster system, that includes a Parliament that enjoys the privileges enjoyed by members of the UK Parliament.  In addition, the Canadian Parliament can enact a statute that sets out its privileges.  It has done so in section 4 of the Parliament of Canada Act claims all the privileges of the UK House of Commons for the Canadian Parliament.  The combination of these provisions, along with jurisprudence of the Supreme Court, has confirmed that the privileges of Parliament form part of the constitution.  The court in Alford then examined the question of whether the provision that allows Parliament to define its privileges allows Parliament to limit privileges, or whether there are other amending provisions that would allow Parliament to do so.   The court concluded that the privileges in question were constitutional and fixed, that the provisions of the Constitution Act, 1867 only dealt with the expansion, not the limiting, of parliamentary privileges. Further, the court concluded that since the privileges formed part of the constitutional architecture, use of the general amending formula, requiring Parliament’s support as well as substantial provincial support, was necessary to limit the privileges.

I would suggest that the court was wrong on all counts, and that although I profoundly disagree with the approach of the legislation, the law was within the power of Parliament alone to enact.  Any other conclusion would allow both the courts and the provincial legislatures unwarranted and unconstitutional capacity to interfere with the privileges of the House of Commons and the Senate of Canada.

First, an examination of parliamentary privilege reveals that they belong to the House of Commons and the Senate to define and assert.  Although the courts can determine whether the scope of any claimed privilege exceeds what is necessary for a legislative assembly to carry out its constitutional functions, the courts have no capacity to determine what the legislature can determine for itself what it needs in the first place.  The issue for the courts is scope not content.  This suggests that the issue of what privileges are necessary is a question that is first to be determined and asserted by House and the Senate themselves.  Whether they choose to do so singularly by standing orders, or jointly by legislating (with Royal Assent) is for them to decide.  The only issue for the courts, as a matter of scope, is to determine if they have gone too far, not whether they have gone far enough.

As noted in the case, there are two constitutional bases for privileges for the Parliament of Canada.  The first is the preamble of the Constitution Act, 1867  that provides that Canada is to have a constitution “similar in principle to that of the United Kingdom.”  From this is derived the concept that the privileges enjoyed by Parliament and legislatures are similar to those in the UK.   In the context of the Alford case, one must ask whether included in the privileges of the UK House of Commons and House of Lords there is a capacity to legislate, with the Queen’s assent, limits on their privileges.  The answer to this question is clearly yes.  Although there had been numerous claims of privilege prior to the 17th century, the primary statement of privilege is itself found in a statute, the Bill of Rights, 1688, which includes language relating to freedom of speech and protection from prosecution for what is said in Parliament.  While there is some debate as to whether a legislative assembly can waive these privileges, all cases that have examined the question have determined that because the privileges are found in a statute the statute can always be amended.  In addition to the freedom of speech and proceedings, there are or were other privileges enjoyed by Parliament, including certain immunity from lawsuits.  Although the particular privileges involved are not relevant to the Alford case, what is relevant is that they have been limited by statute in the UK; see for example, Parliamentary Privilege Act, 1737;  Parliamentary Privilege Act, 1770; amendments to the Defamation Act, 1996; and, the Enterprise Act, 2002.  Most recently, there has been consideration of legislation that would remove protection from members who divulged the content of super-injunctions or other confidential court proceedings (see Green Paper, Parliamentary Privilege, presented to Parliament by the government House Leader (UK) 2012).  There is no doubt that in the UK Parliament has always been able to legislate to limit is own privileges and that this legal fact was known to the drafters of the Constitution Act, 1867.

Second, in light of the foregoing understanding of privilege, it is difficult to accept the court’s limited reading of Parliament’s power pursuant to s.18 of the Constitution Act, 1867.  Section 18 provides:

The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

The reading of this provision by the court was extremely narrow, and inconsistent with both rules of statutory interpretation, that provide for a liberal and expansive interpretation of statutes, and constitutional interpretation principles including readings consistent with other aspects of the constitution.

From a statutory interpretation perspective, it is clear that this provision is permissive but with a limit.  Parliament can enact legislation but only up to the point that the privileges do not exceed those of the UK House.  There is no lower limit, nor any restriction on legislating within that outer extent, including limiting privileges.  This is not only a better statutory interpretation reading but is also consistent with notion of “scope” of privilege whereby the courts have consistently held that they can only determine the scope of privilege, not its exercise or specific content within that scope.

There can be little doubt that the content of s.12 is purely internal to Parliament.  What Parliament did by statute could also have been achieved by the internal rules of each House.  If such a process had been used, there is no doubt that the “rule” would be beyond the jurisdiction of the courts to review, and well beyond the authority of any provincial legislature to opine on or veto.

In addition to the privileges over speech and proceedings anchored in the Bill of Rights, 1689, the privileges, Standing Orders and conventions of each House include rules relating to the conduct of proceedings, discipline of members and conduct of debate.  For example, members may not comment on ongoing court proceedings (sub judice rule), the work of the other House, the governor-general or lieutenant governors.  In addition, there are rules relating the holding of in camera meetings without out publicity and the capacity to find Members in contempt and sanction them for divulging information heard in these closed meetings. All these powers could be configured so as to reach the same result as s.12 of the National Security and Intelligence Committee of Parliamentarians Act, and as Standing Orders and decisions of a House they would be beyond the reach of the court to review.  How putting them in a statute would change the constitutional authority of the Houses is hard to figure.  As noted by the Supreme Court of Canada in Vaid v Canada 2005 SCC 30, merely stating a privilege in a statute does not change the nature of the subject matter as being privileged.  A similar reasoning can be applied in this case. If legislative assemblies can do something by internal regulation, how can a constitutional provision be read so that it cannot do so by statute?

The result of the decision, that a consitutional amendment to self-limit a privilege requires resolutions of other jurisdictions, is also seriously flawed.  Assuming for the sake of argument that parliamentary privileges are equivalent to constitutional provisions that require a constitutional amendment to change (leaving aside the limited meaning of s.18 of the Constitution Act, 1867) the court had to consider what amending formula would apply. It had two choices.  The federal government’s counsel argued for section 44 of the Constitution Act, 1982 which provides:

Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

Notwithstanding that section 44 is only subject to sections 41 and 42 the court provides little analysis of how either of these sections particular sections were engaged.

The court rejected the formula set out in section 44 in favour of one that would require significant involvement and concurrence of several provincial legislatures.  To support its conclusion, the court references the Supreme Court of Canada decision in Re Senate Reform which considered the constitutionality of government proposals that would have effectively changed the nature of the Senate from an appointed chamber to and elected one.  The court in Alford does so without considering that the Supreme Court decided the Senate Reform Reference on the basis that the proposed reforms would fundamentally change the constitutional architecture in a way that engaged provincial interests.  One of the underlying reasons for the establishment of the Senate was to protect provincial and regional rights against a House based on popular representation that empowered more populous provinces.  Such a fundamental shift in the architecture of Parliament, the court concluded, required the use of an amending formula that engaged the provinces, not one that was only focused on the internal workings of Parliament.  The statute at issue in the Alford case is a far cry from fundamentally changing the architecture of the constitution in a manner that implicates the provinces.

In fact, the result of the Alford decision is one that would unduly allow the provinces to involve themselves in the inner workings of the federal Parliament.  This is not only antithetical to the independence of Parliament from outside interference, it strains and upsets the principle of the division of powers between the provincial and federal levels of government.   The division of powers under the Canadian constitution provides for the division of legislative powers between each level of government such that each level of government enjoys exclusive jurisdiction over enumerated matters.  The result of this division of powers is that neither level of government has the ability to pass legislation, or pass resolutions, that would have the effect of interfering in the business that the constitution assigns to the other level of government.   The doctrine underlying the division of powers is also reflected and respected in the amending formulae in the Constitution Act, 1982.  This can be seen in section 44, discussed above, and in section 45 which gives provinces the ability to exclusively “ make laws amending the constitution of the provinces,”  and section 43 that allows for a process for constitutional amendments that affect only some provinces, which only involves those provinces and the federal government.  None of these sections would be applicable to constitutional matters of a national nature or that affect the federal government and all provinces. Nor is this a matter that affect rights under the Canadian Charter of Rights and Freedoms, that would apply to the legislative competence of all levels of government.  The parallels between sections 44 and 45 enhance the division of powers and would suggest that when a matter only affects the internal workings of legislative branch at one level of government, that level of government has the exclusive constitutional ability to legislate with respect to those institutions. Further, each jurisdiction may legislate in a way that may affect the constitutional functioning of its own legislative assembly, without any involvement and potential interference from other levels of government. Like the Parliament of Canada Act¸ at the federal level all provinces have enacted similar Acts respecting their own legislative assemblies.

The privileges of the House of Commons and the Senate have been described as falling within the “exclusive cognizance” of each House and beyond the jurisdiction of the courts to interpret, apply or, when exercised by a House, judicially reviewed.  Privileges have also been described as “one of the ways” that the independence of Parliament from the Crown and the Courts is “vouchsafed”.   If consideration of whether and when privilege will apply, or disapply, to members is not a matter that exclusively rest with the federal Parliament, either legislatively or within the subject matter of section 44 of the Constitution Act, 1982, it is almost impossible to imagine what would.

It may not be wise or advisable for Parliament to limit the privileges of Parliament and its members by limiting their freedom of speech, putting its members at risk of prosecution, and curtailing their ability to hold the government to account by shielding certain government activities from parliamentary and public scrutiny.  However, it has, and must have the ability to do so, without interference from the courts or the provinces.    The combination of section 18 of the Constitution Act, 1867 and section 44 of the Constitution Act, 1982 makes this abundantly clear.