Alford v Canada is a constitutional challenge to s. 12 of the National Security and Intelligence Committee of Parliamentarians Act (“NSICPA”), which limits the application of parliamentary privilege related to offences under the NSICPA.

The NSICPA was passed in 2017, creating a committee of parliamentarians who would review national security issues. The law also made it an offence for committee members to reveal secret information they would receive to carry out their duties, and stipulated that parliamentary privilege cannot be used as a defence if charged. Ryan Alford, a law professor at Lakehead University, challenged the law on the basis that it was not within Parliament’s jurisdiction to limit the constitutionally protected right to freedom of speech and debate in Parliament without making an amendment to the Constitution.

His challenge was initially successful, but that decision was overturned on appeal by the Ontario Court of Appeal. The Court held that Parliament has the power to define parliamentary privileges however it sees fit, with the only limitation being that those powers can’t exceed the privileges that the Parliament of the United Kingdom enjoyed at the time of confederation. Professor Alford has appealed the case to the Supreme Court of Canada.

BCCLA intervened at the Court of Appeal to argue that accountability and transparency are at the core of the constitutional protection of parliamentary privilege, and that these purposes should inform the Court’s decision in this case, especially given the context of national security review and oversight. Members of Parliament should not face potential imprisonment for acting as whistleblowers if they expose serious wrongdoing by national security organizations. 

We are intervening again as the case moves on to the Supreme Court. We are advancing similar arguments, adding that the Court of Appeal failed to adequately address these important considerations. We will be arguing that in addition to an upper limit on parliamentary privilege, there must also be a lower limit. Parliament cannot curtail freedom of speech to the point where accountability and transparency are undermined. It is critical in these troubled times that Parliament not abdicate its role in providing checks and balances for the Executive branch.