Ottwa : The Supreme Court of Canada released two split decisions on Friday, dismissing appeals challenging the constitutionality of two laws: one that limits federal lawmakers’ ability to rely on parliamentary privilege, and one that suspends changes to Quebec’s electoral map until after the province’s general election.
In Alford v. Canada (Attorney General), the high court’s decision was split 7-1. Supreme Court of Canada Justice Malcolm Rowe wrote the opinion for the majority. Justice Suzanne Côté dissented.
The high court first dismissed the appeal in Quebec (Attorney General) v. Lalande last week via oral judgment, but only released its reasons on Friday. Justice Nicholas Kasirer wrote the opinion for the majority. Justices Rowe and Côté dissented.
Alford v. Canada (Attorney General);
In this case, the high court was tasked with clarifying s. 18 of the Constitution Act, 1867, which states that the “privileges, immunities, and powers” of the Senate and the House of Commons will be defined by Parliament. The appeal asks: what is the precise scope of Parliament’s power to define its own privileges under s. 18?
Ryan Alford, a professor of law at Lakehead University, brought the case. In 2017, Parliament passed the National Security and Intelligence Committee of Parliamentarians Act, which established a committee of senators and members of Parliament. The mandate of the committee is to oversee Canada’s national security and intelligence activities.
Under s. 11 of the act, committee members are barred from disclosing any protected information they obtain by participating in the committee. Alford challenged s. 12 of the act, which states that current and former committee members cannot claim immunity based on parliamentary privilege if they are accused of violating s. 11.
Parliamentary privilege encompasses the protections that parliamentarians rely on – such as the ability to speak freely in Parliament without legal consequences – to perform their duties.
Alford argued that s. 12 was unconstitutional because it limits Parliament’s privilege of freedom of speech and authority to set and enforce its own rules of conduct. Because s. 18 of the Constitution Act, 1867 gives Parliament the authority to define its own privileges, Alford argued that the only way to limit the committee members’ ability to rely on parliamentary privilege was to amend the Constitution Act – not via ordinary legislation like the NSICOP Act.
Alford is neither a member of the committee nor a parliamentarian, but the Ontario Court of Appeal granted him public interest standing to proceed with his challenge. The Ontario Superior Court of Justice agreed with the professor’s argument that Parliament did not have the authority to legislate s. 12 of the NSICOP Act, and that amending the constitution is necessary to limit parliamentary privilege.
However, the OCA disagreed, ruling that s. 12 falls within Parliament’s authority to define its own privileges. Alford appealed to the SCC.
Writing for the majority, Rowe sided with the OCA. The justice acknowledged that while Canada’s constitution recognizes the importance of parliamentary privilege, it does not “expressly define its content.” Instead, it gives legislatures the authority to determine what that privilege looks like, based on what they believe is necessary.
However, this authority is subject to three constraints. First, Parliament cannot grant itself privileges, immunities, or powers that exceed those held by the British House of Commons at the time of the grant. Second, s. 18 of the Constitution Act, 1867, cannot be used in a way “that would fundamentally undermine Parliament’s function as a legislature in Canada’s Westminster-style parliamentary democracy,” Rowe said.
Third, s. 18 must be used consistently with other constitutional provisions explicitly related to Parliament’s functioning.
“A valid exercise of [s. 18] cannot be inconsistent with the purpose for which it was granted, and thus cannot fundamentally alter or undermine Parliament’s role within our constitutional order,” Rowe wrote.
He concluded that s. 12 of the NSICOP Act “does not have these effects but, rather, represents a narrow limitation of parliamentary privilege.” The justice noted that s. 12 applies only to members who voluntarily participate in the NSICOP Act committee and to confidential information they obtain in that role; the provision does not affect Parliament’s broader freedom of speech rights or prevent Parliament from controlling its own proceedings.
The provision, therefore, “falls within the authority conferred upon Parliament by s. 18 of the Constitution Act, 1867,” the justice said.
In her dissent, Côté argued that s. 12 of the NSICOP Act “is far from being narrow.” She would have allowed Alford’s appeal.
S. 12 “would allow, for the first time in centuries, the prosecution and imprisonment of parliamentarians for what they say in Parliament, with their speech used as evidence against them in court,” she wrote. “This is not a narrow limit. It is unprecedented in Canadian history and undermines our constitutional architecture.”
However, Alford told Canadian Lawyer he is pleased with the high court’s decision.
“It reads as a loss insofar as the particular challenge was dismissed,” he said. “But it’s a recognition by the Supreme Court of Canada that there are constitutional limitations on legislation that would limit parliamentary privilege, and there was no jurisprudence from any court prior to my challenge that discussed that.”
He noted that the OCA’s decision had not acknowledged such limitations. If the SCC had not addressed that issue, “that would be a very severe affront to the rule of law if it were not addressed,” Alford said. The professor added that the decision was significant in light of a BC Supreme Court decision this week that recognized the bar’s independence as an “unwritten constitutional principle.”
“We have to think about the constitutional limitations of sections of the constitution that are not found in its written documents,” he said. “And the Supreme Court [of Canada] has proven itself willing to address that.”
A spokesperson for the federal government did not immediately provide a comment on the decision.
Quebec (Attorney General) v. Lalande:
This case considers whether Bill 59, a Quebec law that requires the province’s electoral commission to suspend reviews of the province’s electoral map until after its next general election in October, violates the Canadian Charter of Rights and Freedoms. In December, the Quebec Court of Appeal ruled that the legislation was unconstitutional and therefore of no force or effect.
The Quebec Attorney General appealed, giving the SCC the task of determining whether Bill 59’s constitutional infringement was saved by s. 1 of the Charter, which permits limitations on Charter rights if those limits can be reasonably justified.
At a hearing last week, seven justices agreed that the answer to that question was no. They dismissed the attorney general’s appeal but did not provide reasons until Friday.
Quebec lawmakers introduced Bill 59 after discovering that a proposed redistricting of the province’s ridings would result in two ridings disappearing on the Gaspé Peninsula and in Montreal’s east end, and create two new ridings in the growing Laurentians and Centre-du-Québec regions. However, voters challenged the legislation, arguing that it violated their right to vote by requiring a general election under an electoral map that fails to ensure effective representation.
Writing for the majority, Kasirer said the attorney general did not provide convincing evidence that the Quebec Court of Appeal made any errors in its ruling.
To determine whether a Charter violation is justified under s. 1, courts must apply the test set out in SCC’s 1986 landmark decision in R. v. Oakes. One of the criteria set out in the test is that the infringement is “minimally impairing.”
The Quebec Attorney General argued that Bill 59 was meant to protect the regions that the redrawing of the electoral map would eliminate; the population in these regions, the attorney general said, were declining, and the province needed time to reflect on how to ensure that all voters were effectively represented.
Kasirer wrote that the Quebec Court of Appeal correctly found that Bill 59 did not minimally infringe voters’ rights under s. 3 of the Charter. The justice said he shared the appellate court’s view “that the legislature had at least one alternative option, less impairing within the meaning of Oakes, that would have enabled the pressing and substantial objective to be achieved while minimizing the dilution of the right to vote of half a million electors and the legislative interruption of the independent process undertaken by the Commission de la représentation électorale.
“As the Court of Appeal explained, it was possible, among other things, for the legislature to enact a law temporarily protecting the electoral divisions in Gaspésie while leaving the [commission responsible for reviewing Quebec’s electoral map] to complete its work for the rest of Quebec,” Kasirer added.
In their dissent, Rowe and Côté said that assuming Bill 59 violated s. 3 of the Charter, it was justified under s. 1. They would have allowed the attorney general’s appeal.
In a statement, Daniel Goupil of PFD Avocats, one of the lawyers representing the plaintiffs, said, “We are proud to observe that electoral parity is maintained in Canadian electoral jurisprudence and that political majority or even unanimity can’t resist a charter test in respect of the right to vote entrenched in the Canadian Charter of Rights and Freedoms.”
The Quebec Attorney General’s office did not immediately respond to a request for comment.
