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National Security - National Security and Intelligence Committee of Parliamentarians Act (NSICPA) (2). Alford v. Canada (Attorney General)
In Alford v. Canada (Attorney General) (SCC, 2026) the Supreme Court of Canada dismissed an appeal, this brought against the allowing of the Crown's Ontario CA ruling that "held that s. 12 of the NSICOP [SS: 'National Security and Intelligence Committee of Parliamentarians Act'] Act is intra vires Parliament’s legislative authority under s. 18 of the Constitution Act, 1867.".
Here the court considers whether NSICOPA s.12 [SS: 'parliamentary privilege'] is consistent with Constitution Act s.42(1)(d) ['Amendment by general procedure'] regarding the Supreme Court of Canada:(2) Amendments in Relation to the Supreme Court of Canada (Section 42(1)(d))
[93] Turning to the appellant’s submissions in relation to s. 42(1)(d) of the Constitution Act, 1982, I find them to be without merit. Section 12 does not affect the role of this Court as the final court of appeal for Canada, nor does it undermine the Court’s independence or otherwise alter its relationship with the other branches of government.
[94] The appellant relies on the notion that ss. 41 and 42 of the Constitution Act, 1982 together fulfill a protective role regarding the Court and raises a functional argument against s. 12 of the NSICOP Act. He contends that the Court’s role — and the perception of its independence — would be compromised because its jurisdiction would be expanded to include presiding over “political disputes” (A.F., at para. 67) between the executive and legislative branches. I would reject this characterization of the effect of s. 12. The provision does not undermine the role of courts in adjudicating prosecutions relating to a breach of s. 11 nor does it affect this Court’s role on appellate review.
[95] Section 42(1)(d) of the Constitution Act, 1982 captures changes to the structure or function of the Supreme Court other than those amending “the composition . . . of the Court”, which are addressed by s. 41(d). In the Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, while the majority and Moldaver J., in dissent, disagreed over the precise scope of s. 42(1)(d), it is clear that it encompasses at least the Court’s role as a general court of appeal for Canada as well as its independence (para. 100, per McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ., and para. 115, per Moldaver J., dissenting).
[96] The appellant’s view rests on an assumption that because a s. 11 breach may give rise to prosecution in respect of a statement made by a member of the legislative branch in Parliament, such a prosecution would necessarily take on the character of a political dispute. But this is not how it would be adjudicated: the question for the court would only be whether the Crown had met its burden to prove all of the elements of the offences charged beyond a reasonable doubt. Courts seized with the adjudication of prosecutions of parliamentarians relating to a breach of s. 11 of the NSICOP Act would deal with them as they would any other criminal prosecution. The Crown would be held to the same burden and standard of proof, and the questions before the court would be legal and factual questions within the day-to-day ken of criminal courts across the country.
[97] The same would be true of this Court presiding over questions of national importance or appeals as of right arising from a prosecution relating to a s. 11 breach. In other cases where the Court has been called upon to address a dispute between two branches of government, it has not shied away from that task, albeit undertaking it with a measure of “special prudence” (British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506, at para. 64). As the Court held in Provincial Court Judges’ Association of British Columbia, cases implicating the separation of powers raise a concern that the courts will overstep their judicial role and unduly interfere with the constitutionally assigned role of another branch of government (para. 64; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 29). This does not prohibit the Court from adjudicating these types of disputes, as it has done on many occasions, but instead calls for a measure of caution with which the Court has proceeded each time it has resolved a question of this kind.
[98] The NSICOP Act presents no unique risk that a decision of this Court could alter the separation of powers, as the appellant contends, nor does it threaten the perception of judicial independence or institutional legitimacy of the Court. Were this Court tasked with acting as final arbiter over a question arising from a s. 11 breach, it would fulfill its constitutional duty with the same respect for the separation of powers as it has in other cases. . Alford v. Canada (Attorney General)
In Alford v. Canada (Attorney General) (SCC, 2026) the Supreme Court of Canada dismissed an appeal, this brought against the allowing of the Crown's Ontario CA ruling that "held that s. 12 of the NSICOP [SS: 'National Security and Intelligence Committee of Parliamentarians Act'] Act is intra vires Parliament’s legislative authority under s. 18 of the Constitution Act, 1867.".
Here the court considers whether NSICOPA s.12 is consistent with Constitution Act s.42(1)(b) ['Amendment by general procedure'] regarding Senate powers:E. Section 12 Does Not Run Afoul of Section 42(1)(b) or (d) of the Constitution Act, 1982
[85] The appellant argues that s. 12 changes the “powers of the Senate” as described in s. 42(1)(b) of the Constitution Act, 1982 and the role of this Court in adjudicating disputes arising from prosecutions of parliamentarians as contemplated by the NSICOP Act, in contravention of s. 42(1)(d). Such changes could only be implemented by means of a constitutional amendment under the general amending procedure set out in s. 38(1) of the Constitution Act, 1982.
[86] In my view, the appellant’s submissions rest on a misinterpretation of the phrase “powers of the Senate”, which does not relate to parliamentary privilege; nor does s. 12 reshape this Court’s constitutional role.
(1) Amendments in Relation to the “Powers of the Senate” (Section 42(1)(b))
[87] The appellant argues, and the application judge accepted, that the limitation on the privilege of freedom of speech in Parliament operated by s. 12 of the NSICOP Act, as it applied to senators, was a modification to the “powers of the Senate” within the meaning of s. 42(1)(b) of the Constitution Act, 1982. In accordance with the terms of s. 42(1), such a change would have required a constitutional amendment pursuant to the general amending formula set out in s. 38(1) and could not therefore have been achieved by ordinary legislation. In my respectful view, s. 42(1)(b) cannot be so construed.
[88] The phrase “powers of the Senate” in s. 42(1)(b) does not refer to the parliamentary privileges of the Senate but rather to the legislative powers of the Senate as the upper house of Canada’s bicameral Parliament. In my view, the type of constitutional amendments which are contemplated by this paragraph is comparable to those introduced, in the United Kingdom, by the Parliament Act, 1911, 1 & 2 Geo. 5, c. 13, and the Parliament Act, 1949, 1949, c. 103, which enabled legislation to be enacted without the consent of the House of Lords in certain circumstances. These statutes limited the legislative power of the upper house by giving the other constituent parts of Parliament, i.e., the Sovereign and the elected House of Commons, the authority to overcome the Lords’ veto after a set period of time has elapsed. Per s. 42(1)(b), such a change to the rules of bicameralism in Canada would require a constitutional amendment passed with the consent of the required number of provinces.
[89] This is so because curtailing the Senate’s legislative powers would engage provincial interests. Section 42(1)(b) must be read within the context of s. 42 as a whole, whose clear purpose is to entrench certain matters in which provinces have a significant interest beyond the reach of Parliament’s unilateral legislative authority.
[90] This Court in the Upper House Reference explained that a primary purpose of the Senate as it was designed at Confederation was to afford protection to the various regional and provincial interests in Canada in relation to the enactment of federal legislation (p. 67). The Court held that while s. 91(1) of the Constitution Act, 1867 (the predecessor to s. 44 of the Constitution Act, 1982) would permit the Parliament of Canada to make changes to the Senate, it would not be open to it to unilaterally alter the “fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process” (p. 78). The Court identified four such features in which the provinces have an interest: the legislative powers of the Senate (at p. 72), the method of selection of its members (at p. 77), the residence requirements of senators (at p. 76), and the number of senators appointed from each region (p. 76; see also Projet de loi fédéral relatif au sénat, Re, 2013 QCCA 1807, 370 D.L.R. (4th) 711, at paras. 39-40).
[91] In 1982, the framers explicitly subscribed to the Court’s view that any change to these essential features of the Senate as a regionally representative legislative body would require provincial consent. Indeed, these are all matters which are now listed in the paragraphs of s. 42(1) of the Constitution Act, 1982.
[92] The narrow limitation on parliamentary privilege imposed by s. 12 of the NSICOP Act does not alter the role of the Senate in the exercise of federal legislative power nor does it affect provincial interests in any way. This is therefore not the kind of change that is captured by s. 42(1)(b) of the Constitution Act, 1982. . Alford v. Canada (Attorney General)
In Alford v. Canada (Attorney General) (SCC, 2026) the Supreme Court of Canada dismissed an appeal, this brought against the allowing of the Crown's Ontario CA ruling that "held that s. 12 of the NSICOP [SS: 'National Security and Intelligence Committee of Parliamentarians Act'] Act is intra vires Parliament’s legislative authority under s. 18 of the Constitution Act, 1867".
Here the court considers "whether s. 12 ['Parliamentary privilege'] of the NSICOP Act is within Parliament’s legislative authority under s. 18 ['Privileges, etc., of Houses'] of the Constitution Act, 1867":D. Section 12 of the NSICOP Act Is Within Parliament’s Authority Under Section 18 of the Constitution Act, 1867
[74] To determine whether s. 12 of the NSICOP Act falls within the scope of the legislative authority conferred by s. 18 of the Constitution Act, 1867, I begin by considering the effect of s. 12. It reads in relevant part:12 (1) Despite any other law, no member or former member of the Committee may claim immunity based on parliamentary privilege in a proceeding against them in relation to a contravention of subsection 11(1) or of a provision of the Foreign Interference and Security of Information Act or in relation to any other proceeding arising from any disclosure of information that is prohibited under that subsection. [75] As the Court of Appeal noted (at paras. 13-30), s. 12 of the NSICOP Act does not function in isolation. It operates in conjunction with s. 11 of the Act, which is the source of the prohibition on disclosure of national security information in respect of which a Committee member may be the subject of a prosecution or other proceeding. Section 11 of the Act prohibits the disclosure of any information that a Committee member obtains by virtue of their membership on the Committee and that a government department “is taking measures to protect”.
[76] In my view, it cannot be said that s. 12 of the NSICOP Act constitutes an “abrogation” or “elimination” of freedom of speech in Parliament, as the appellant contends. It has a circumscribed effect: it applies only to the disclosure of specific national security information that was obtained by members of the Committee through their participation on the Committee. First, any information members of the Committee obtain by virtue of their membership is only that which is related to the Committee’s oversight of Canada’s national security apparatus. Indeed, to the extent that the Committee exercises statutory powers under the Act to obtain and review information, this must be tied to the purpose for granting that power. This is confirmed by the wording of s. 13(1), which grants the Committee a right to access “any information that is under the control of a department and that is related to the fulfilment of the Committee’s mandate”. There is a necessary relationship between the Committee’s mandate and the information that may be obtained or accessed in the course of carrying out that mandate.
[77] Second, Committee members are only subject to the non-disclosure obligation under s. 11 if the information in question satisfies both conditions under s. 11. Therefore, s. 12’s limitation of parliamentary privilege would not apply to a Committee member who discloses in Parliament protected information that they obtained outside of their participation in the Committee. Conversely, if a Committee member obtained information as part of their membership, but the government had not taken any measures to protect it, its disclosure would not be prohibited by s. 11.
[78] Finally, the effect of s. 12 on parliamentary privilege is limited to the immunity held by those who choose to sit on the Committee. It does not in any way limit privilege for other parliamentarians. Nor does it affect free speech in Parliament more broadly, with respect to anything other than protected information made available to Committee members by virtue of the NSICOP Act and which they would not have been aware of otherwise.
[79] By imposing this narrow limit on its own privileges, Parliament chose to enlarge the jurisdiction of the courts by permitting them to adjudicate criminal proceedings arising from conduct that is ordinarily shielded by parliamentary privilege. As noted above, Parliament may “provide for the courts to encroach on matters falling within its exclusive cognisance” (Chaytor, at para. 67). Through s. 12 of the NSICOP Act, Parliament did exactly that.
[80] The respondent submits that this limit on the privilege of freedom of speech represents a trade-off for additional parliamentary oversight of national security matters that is consistent with the purpose of s. 18 — to define Parliament’s powers, immunities and privileges as Parliament sees necessary to carry out its role (R.F., at paras. 11-15).
[81] Without commenting on the advisability of this trade-off, it is relevant to take stock of the fact that the NSICOP Act operates in the national security context. In this context, requiring secrecy from Committee members has a clear connection to the policy objective behind the NSICOP Act — oversight of Canada’s national security apparatus (see C. Forcese, Fundamentals of National Security Accountability in Canada (2023), at p. 58).
[82] By s. 8 of the Act, Parliament mandated the Committee to review the legal and administrative framework for national security and intelligence, government activities related to national security, as well as any matter relating to national security referred to it by a minister of the Crown.
[83] This mandate requires access to sensitive information related to national security. This type of access is frequently if not always accompanied by prohibitions against disclosure that are enforced with criminal sanctions (see, e.g., Foreign Interference and Security of Information Act, R.S.C. 1985, c. O-5, ss. 13 to 15). It is to be expected, then, that parliamentarians would be required to undertake not to disclose the information in the same manner as others bound to secrecy.
[84] I conclude that s. 12 of the NSICOP Act was within Parliament’s authority to enact pursuant to s. 18 of the Constitution Act, 1867. In addition, as I explain below, the privilege of freedom of speech in Parliament is not a matter that was entrenched by s. 42(1)(b) of the Constitution Act, 1982, nor does the combined effect of ss. 11 and 12 of the NSICOP Act change the constitutionally entrenched role of this Court under s. 42(1)(d). . Alford v. Canada (Attorney General)
In Alford v. Canada (Attorney General) (SCC, 2026) the Supreme Court of Canada dismissed an appeal, this brought against the allowing of the Crown's Ontario CA ruling that "held that s. 12 of the NSICOP [SS: 'National Security and Intelligence Committee of Parliamentarians Act'] Act is intra vires Parliament’s legislative authority under s. 18 of the Constitution Act, 1867.".
Here the court summarizes this rare 'parliamentary privilege' case:[1] Parliamentary privilege is an important component of the constitutional law of Canada. It is an essential feature of any Westminster-style legislative body, such as those that were established or continued by the Constitution Act, 1867. The Constitution of Canada recognises, both implicitly and explicitly, the need for parliamentary privilege in a parliamentary democracy similar in principle to that of the United Kingdom. However, it does not expressly define its content.
[2] Rather, the Constitution affirms the authority of legislatures themselves to do so, based on what they regard as necessary and appropriate in order to fulfill their roles within the confines of our constitutional order. At the federal level, the authority to define the content of parliamentary privilege is granted to Parliament by the express terms of s. 18 of the Constitution Act, 1867.
[3] Parliament exercised this authority in its very first session in 1868, through the enactment of the predecessor provision to the current s. 4 of the Parliament of Canada Act, R.S.C. 1985, c. P-1. Since then, Parliament has largely defined the privileges of the Senate, the House of Commons, and their members by reference to those held by the House of Commons of the United Kingdom at the time of Confederation. Freedom of speech in parliamentary proceedings has long been among these privileges.
[4] In 2017, Parliament enacted the National Security and Intelligence Committee of Parliamentarians Act, S.C. 2017, c. 15 (“NSICOP Act”) for the purpose of setting up a statutory committee of parliamentarians to oversee Canada’s national security and intelligence apparatus (“Committee”). Section 12 of this Act contains a provision that prohibits parliamentarians who sat on the Committee from claiming immunity based on parliamentary privilege in a proceeding against them related to the disclosure of national security information obtained through their Committee membership.
[5] The appellant, Professor Ryan Alford, challenges the constitutional validity of this provision, on the basis that it impermissibly limits the privilege of freedom of speech in Parliament and the authority of its Houses to set and enforce their own internal rules of conduct. In so doing, he calls into question the scope of Parliament’s legislative power to define its own privileges under s. 18 of the Constitution Act, 1867. He reasons that, because parliamentary privilege has constitutional status, it can only be limited by amending the Constitution of Canada in accordance with the procedures set out in Part V of the Constitution Act, 1982, and not by ordinary legislation.
[6] The respondent Attorney General of Canada submits that s. 12 of the NSICOP Act is a redefinition of parliamentary privilege that is within Parliament’s authority to enact pursuant to the unambiguous terms of s. 18 of the Constitution Act, 1867. The respondent relies on the text and context of s. 18 to argue that Parliament possesses broad authority to add to and to limit its privileges as it sees fit from time to time, subject only to the outer boundaries of our constitutional arrangements. He submits that the narrow limitation of privilege imposed by s. 12 of the NSICOP Act comes nowhere close to those boundaries.
[7] My analysis proceeds in three parts: first, I describe the nature of parliamentary privilege in Canadian constitutional law; second, I turn to the interpretation of s. 18 of the Constitution Act, 1867, in light of its text, historical and constitutional context, and purpose. Finally, I consider whether s. 12 of the NSICOP Act falls within the scope of s. 18 of the Constitution Act, 1867.
[8] Applying the foregoing, in my view, s. 12 of the NSICOP Act was validly enacted under the legislative authority conferred on Parliament by s. 18 of the Constitution Act, 1867. Accordingly, I would dismiss the appeal.
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VII. Conclusion and Disposition
[99] Section 18 of the Constitution Act, 1867 gives Parliament the authority to define its privileges, subject only to the limits of its text and purpose, as understood within the broader context of the Constitution. In my view, for the reasons set out above, this authority includes limiting these privileges. When Parliament does so, it exercises a legislative authority conferred by the Constitution; it does not amend the Constitution itself.
[100] Still, a valid exercise of this power 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. As I have described, s. 12 of the NSICOP Act does not have these effects but, rather, represents a narrow limitation of parliamentary privilege. Accordingly, it falls within the authority conferred upon Parliament by s. 18 of the Constitution Act, 1867. . Alford v. Canada (Attorney General)
In Alford v. Canada (Attorney General) (SCC, 2026) the Supreme Court of Canada dismissed an appeal, this brought against the allowing of the Crown's Ontario CA ruling that "held that s. 12 of the NSICOP [SS: 'National Security and Intelligence Committee of Parliamentarians Act'] Act is intra vires Parliament’s legislative authority under s. 18 of the Constitution Act, 1867.".
Here the courts considers aspects of the NSICOPA:[9] The NSICOP Act was brought into force in 2017. It establishes an eponymous committee composed of members of Parliament and senators appointed by the Governor in Council, whose mandate is to oversee Canada’s national security and intelligence apparatus. It is noteworthy that this is not a parliamentary committee, but a statutory committee within the executive branch.
[10] Given the mandate of the Committee, members are expected to review sensitive national security information. Several provisions of the NSICOP Act are devoted to maintaining the secrecy of this information. These include requiring members to obtain and maintain the appropriate security clearance (s. 10(a)) and swear an oath or solemn affirmation that includes an undertaking not to disclose any information obtained in confidence by a member (s. 10(b) and Sch.); holding meetings where sensitive information is discussed in private (s. 18); and in the case of ss. 11 and 12, allowing for criminal prosecutions relating to the disclosure of protected information.
[11] Section 11 of the Act contains the prohibition against the disclosure of protected information obtained by Committee members through their participation on the Committee. Section 12 of the Act states that no member or former member of the Committee may claim immunity in a proceeding related to a violation of s. 11 based on parliamentary privilege.
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