Colby Cosh: Supreme Court upholds Liberals’ right to protect embarrassing secrets

Supreme Court Justice Suzanne Côté Photo by Adrian Wyld/The Canadian Press

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Last week the Supreme Court of Canada brought forth its ruling in Alford v. Canada, a case that represents a lone law professor’s quixotic attempt to defend the ancient inherited privileges of the Canadian Parliament. Lakehead University’s Ryan Alford was challenging the Liberals’ “NSICOP” system for parliamentary oversight of state secrets.

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The NSICOP law, passed in 2017, creates a “committee of parliamentarians” that is not a committee of Parliament, but a creature of the executive branch (specifically the Prime Minister’s Office). MPs and senators who join the committee surrender the historic absolute privilege of free speech in their chamber, and can be prosecuted and imprisoned for revealing official secrets — as defined by government agencies — therein.

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Prof. Alford’s concern was that this is a rupture with fundamental aspects of the Constitution, a rupture so anomalous and serious that it amounts to an unconstitutional amendment created by ordinary statute. Moreover, in Alford’s view, it tilts the constitutional balance away from Parliament toward not only the ministry, but toward the courts themselves, who may find themselves sitting in judgment on acts of pure speech that for centuries were shielded by parliamentary privilege.

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The clever (and not wholly unreasonable) counterargument made by the government was that the courts should defer to Parliament on its own definition of its privileges, even when it decided to limit them in an unfamiliar, novel and anomalous way. (Every other country with a Westminsterian parliament has found some way to marry oversight of state secrets with the continued existence of strong parliamentary privilege, as has the United States.)

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The Supreme Court — and stop me if this shocks you to the core of your being — ruled 8-1 that it was OK for courts to acquire this new power. The core of the majority’s argument was that the new exception to parliamentary privilege is “narrow” and “circumscribed,” and therefore kosher. MPs and senators are subject to prosecution only if they join the committee, only if they reveal information obtained solely through their membership on the committee and only if some department of government is “taking measures to protect” that information. It’s just the tiniest little ding in the chrome of parliamentary privilege; why worry?

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Well, one searches in vain, I am afraid, for any articulable principle in the majority judgment beyond the repetition of the word “narrow.” But let’s acknowledge that the dilemma presented to the court by Prof. Alford was real. The court had the genuinely tricky choice between interfering with Parliament’s re-definition of its own privileges, and thus stepping on parliamentary supremacy, or allowing Parliament to surrender privileges that were axiomatic to Confederation, that were reasserted at the time of constitutional patriation and that have always been said to be at the heart of the Constitution.

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Anyone wondering how such a tricky issue ought to be negotiated would do well to read Justice Suzanne Côté’s dissenting opinion. (The majority opinion was written by Justice Malcolm Rowe, who is often Justice Côté’s partner in dissents.) Côte’s opinion amounts to a splutter of disbelief at the majority’s characterization of the NSICOP exceptions to parliamentary privilege as “narrow.” The right to both define and act on these exceptions will, after all, belong entirely to the government rather than Parliament now. Having surrendered its free-speech privileges in principle, Parliament is bound to find that the harm to its functioning is exactly as narrow and minimal as the prime minister decides it shall be. Côté writes: