Parliament has the Capacity to Limit its Privileges without Constitutional Amendment

The Ontario Court of Appeal, in the case of Alford v Canada (Attorney General) 2024 ONCA 306 recently confirmed the ability of Parliament to limit its privileges by legislation without necessitating a constitutional amendment.  The decision overturned a lower court ruling that found that since privileges were constitutional in nature, any changes required Parliament to go through the amending formula of the Constitution Act 1982 (2022 ONSC 2911 and blogpost https://lexparl.com/2022/06/ ).

Like many western democracies, Canada was faced with developing a mechanism for Parliament to hold government to account for all matters, including national security, and also protecting against potential disclosure of serious national security information that could harm the security of the country or its citizens.  The solution settled on was the creation of a National Security and Intelligence Committee of Parliamentarians.   The Committee was not a committee of either House nor a joint committee.   It was established outside of Parliament as a way for the government to share sensitive information with parliamentarians, and to allow for reports to be prepared by the committee, vetted for potential damaging information, then tabled in Parliament.  One aspect of the Act that created the committee provided that parliamentarians were sworn to secrecy and that if they divulged certain information received as a member of the committee they could be prosecuted.  This included divulging the information in Parliament.  In short, members could not use the protection of parliamentary privilege as a defence.  By way of the provision, Parliament had limited an aspect of its privilege of freedom of speech, in a targeted way (only divulgation of specific information relating to names, intelligence sources, and “special operational information” could result in direct prosecution).

Mr. Alford argued that the freedom of speech in Parliament was a fundamental constitutional principle underlying the entire Westminster system of government and that Parliament could only restrict its application through a formal constitutional amendment.  Although he was successful at the trial level, the Court of Appeal rejected his argument.

There were two bases for the Court of Appeal’s decision.  The first, and most succinct was that the Constitution Act, 1867 specifically allows for such legislated limits on privilege.  Section 18 of the Constitution Act, 1867 provides:

18 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 court found that, “[t]he language of s.18 plainly and unequivocally gives to Parliament the plenary and continuing legislative power to define parliamentary privileges, immunities and powers by way of duly enacted legislation…s.18 places no limit on how Parliament can “define” its privileges.” [para 43] The court went on to state that “s.18 applies to all parliamentary privileges” including those inherent in the role of Parliament, such as the fundamental principle of free speech.

The second, related reason articulated by the court was that one of the “fundamental organizing principles of the Canadian Constitution” is the independence of Parliament from the government and the courts.  Within this context it is “fundamental that Parliament control its own procedures”. [para 47]  Section 18 of the Constitution Act, 1867  is recognition of the independence of Parliament and its sole constitutional ability to determine how, when and if to limit or exercise its privileges.

While not necessary to its reasoning, the court addresses the particular circumstances facing Parliament.  The court writes:

“It is important to bear in mind that this is not a case in which the executive or a third party seeks to limit the scope of an asserted parliamentary privilege…Rather this is a situation in which Parliament has chosen, through legislation, to limit its own privileges, powers and immunities to enhance Parliament’s ability to oversee certain government activities.  Interpreting s.18 so as to permit legislation like [the sections at issue] is consistent with the fundamental principles underlying Canadian democracy.” [para 48]

In reaching this conclusion, the court was not unaware of the limited nature of the Act, and that in most aspects the ability of either House of Parliament to carry out their constitutional function of holding the government to account, even for national security, is not impaired to any extent.  As noted, the legislation restricting disclosure only applies to those Members and Senators that are on the Committee of Parliamentarians (as a government not parliamentary body).  And it only applies to very particular information, the making public of which would affect specific individuals, information gathering or ongoing operations.   There are no other restrictions.

It is first worth noting that the legislation in no way limits the Houses themselves.  Given the limited nature of the specific information that cannot be disclosed, there is little restriction on the overall capacity of the Houses to hold the government to account.  Most of the “policy” aspects of national security as well as how the government manages security matters (internal government operations, spending etc.) would still be fully open to the House to discuss and debate.  The Committee process allows for consideration of reports (potentially redacted in some respects), based on fuller facts but in a manner that avoids national security “leaks”.   While the Committee members are parliamentarians, the process is not that different from the preparation and consideration of an Auditor General’s report.  These outline problems and issues, and outline fact patterns with some example, but without granular details of individual transactions.

In any event, the legislation does not indicate that the use of the Committee of Parliamentarians is the only way that the government can be held to account by the House for national security, in any of its manifestations.  It in no way limits the Houses’ ability to establish its own committee(s) to make such inquiries, and to request any information they want.  The Act does not limit the scope of any such parliamentary inquiry, nor does it allow the government to withhold any information from such a committee.  [para 56] The court indicates that the House could make any order it believes necessary in such circumstances, and that any such order would not only be enforceable through parliamentary means (and sanctions) but that compliance with such orders would likely provide a defence to any government official making the disclosure since, in addition to privilege protecting the official, the provision of the information to Parliament would be “required by …law”. [para 23]

If the government were to abuse the process set out in the legislation and not provide the information that would allow the Committee to its required access to all information necessary for it to report to Parliament in a manner that allows the House to hold the government to account, Parliament remains able to get what it needs through its long established processes and procedures set out above.  And if the government continues to stall, it is always open to Parliament to repeal the legislation, thus exposing the government’s desire to avoid parliamentary scrutiny.

As the court concludes, the legislated limitation on free speech “stops short of anything approaching a constitutional renovation, or an embargo on parliamentary oversight of matters pertaining to national security.”