National Security and Parliament’s Role – CCLA Intervening in Ontario Case

Should our elected representatives on a committee to oversee our national security agencies have the ability to “blow the whistle” in parliament if they find glaring problems or illegality? How can strong accountability to the public be balanced with the secrecy that may often be integral to effective national security operations? Did the Act that created the National Security and Intelligence Committee of Parliamentarians (NSICOP) get it right? 

These questions are at the core of a rather technical case in which CCLA is intervening. Ryan Alford v. Canada is a case that raises questions about parliamentary privilege and Canada’s national security regime. 

The application in Ontario’s Superior Court was initiated by Prof. Ryan Alford, a law professor at Lakehead University’s Faculty of Law. It argues that the Act that established Canada’s National Security and Intelligence Committee of Parliamentarians (NSICOP) improperly removed parliamentary privilege from members of the NSICOP and that this cannot be done without a constitutional amendment. The effect of removing parliamentary privilege is to effectively reduce the committee’s ability to share information publicly, even if they believe there is an overriding need for the public to know about a problem they identify. 

The NSICOP Act requires that members of the committee, who are given access to sensitive national security and intelligence information, keep it confidential. They may be subject to prosecution under the Security of Information Act if information obtained while exercising their role on the committee is disclosed. Under normal circumstances, statements made by members of Parliament in the House of Commons or Senate would not be subject to prosecution because they are protected by parliamentary privilege which immunizes Senators and MPs for what is said in Parliament. Section 12 of the NSICOP Act eliminates this privilege in certain circumstances.  

The case considers whether this violates the constitution. The Ontario Superior Court of Justice found that it did in a decision rendered in May of 2022. The CCLA had intervened to point to how other jurisdictions manage the issue of privilege and national security and how to reconcile parliamentary privilege with the Canadian Charter of Rights and Freedoms. The government of Canada has appealed to the Ontario Court of Appeal and CCLA is once again intervening in the case.  

CCLA is grateful for the excellent pro bono assistance of Gannon Beaulne and Alysha Pannu of Bennett Jones. The appeal is being heard on October 3, 2023. 

CCLA’s factum in the Ontario Superior Court is available here. 

CCLA’s factum in the Ontario Court of Appeal is available here.

By: Cara Zwibel and Brenda McPhail