Ontario’s Superior Court of Justice has found that section 12 of the National Security and Intelligence Committee of Parliamentarians Act is ultra vires. Section 12 seeks to prevent NSICOP members from using their parliamentary privilege of free speech to disclose information they learn as part of their work on NSICOP. Since the parliamentary privilege of free speech would normally protect proceedings in Parliament from the courts, section 12 was meant to ensure that NSICOP members would still be bound by the Security of Information Act during parliamentary proceedings and subject to prosecution if they violated the provisions of said act as part of parliamentary proceedings. Professor Ryan Alford challenged the constitutionality of section 12, arguing that an ordinary statute could not restrict parliamentary privilege in this manner. Fregeau J. accepted Alford’s argument, finding that section 12 of the NSICOP Act was beyond Parliament’s constitutional competence.
I was skeptical that Alford’s argument would carry the day. The houses of Parliament can regulate their own affairs and delimit the privileges of their members. While I can see why doing so through a regular statute is questionable, and I share Alford’s underlying conviction that section 12 undermines Parliament’s constitutional responsibility to hold the executive to account, I’m not yet convinced that Parliament can’t limit the privileges of individual members in this way. I suspect that the federal government will appeal this case, so it’ll be interesting to see where it ultimately lands.
If the Superior Court’s reasoning is upheld, however, it should have an important impact on NSICOP and how we understand the separation of powers in Canada.
Section 12 of the NSICOP Act goes to the core of why NSICOP is what it is. NSICOP is not a committee of parliament. It’s an executive body made up of parliamentarians who are appointed as NSICOP members by the Governor-in-Council. NSICOP was apparently established as an executive body rather than a parliamentary committee to build trust between the Committee and the intelligence community. The idea here was that the intelligence committee had to get used to being overseen by parliamentarians and needed assurance that this Committee would not leak or misuse classified information it was given. Section 12 played a critical role in this construct, since it was meant to ensure that NSICOP members could not use their parliamentary privilege to disclose classified information contrary to the Security of Information Act.
If section 12 is ultra vires, the logic of having NSICOP as an executive body to limit what members can say in Parliament no longer holds. Simply put, NSICOP members have regained their privilege to disclose classified information during parliamentary proceedings without the being prosecuted under the Security of Information Act. The argument that NSICOP has to be an executive body to prevent this from happening may now be null and void. While there may be other reasons to keep NSICOP as an executive body, there are also a number of reasons why it should be a statutory committee of Parliament instead. Assuming that section 12 is ultra vires, the arguments that NSICOP must be an executive body to protect classified information and appease the fears of the intelligence community have been dealt a serious blow.
Given all the other reasons why Parliament should have a veritable national security committee, the erasure of section 12 should prompt the government to remake NSICOP as a parliamentary body.
In terms of the separation of powers, Fegeau J’s judgment reinforces the idea that the branches of the state have inherent constitutional powers. He makes a compelling case that parliamentary privilege is an inherent part of the Canadian constitution, given section 18 of the Constitution Act 1867 and the legislature’s constitutional functions and the requirement for each branch of the state to respect the sphere and dignity of the others.
If this is the case, it raises the question whether the executive has inherent constitution powers by virtue of part III of the Constitution Act 1867, notably via sections 9 and 15. I’ve previously argued that section 15 can be understood to include inherent executive powers, but suffice it to say, this idea is untested and seen as incompatible with legislature’s supremacy over the executive in the Westminster tradition. Fegeau J’s ruling makes me think the concept of inherent executive power isn’t that far fetched.