The Supreme Court of Canada will weigh the constitutionality of legislation that limits members of a spy watchdog from using their parliamentary immunity to speak out.
The top court’s decision Thursday to hear the case reopens a thorny legal question about the National Security and Intelligence Committee of Parliamentarians, known as NSICOP.
The committee, composed of MPs and senators from various parties, has access to highly classified information.
Ordinarily, MPs and senators can claim parliamentary immunity from prosecution for statements made in Parliament.
Members of NSICOP, however, can face up to 14 years in prison for the improper disclosure of information protected through the legislation underpinning the committee.
David McGuinty, MP and chair of the National Security and Intelligence Committee of Parliamentarians, says he and members of the committee who compiled the report could be prosecuted if they release the names of parliamentarians alleged to have conspired with foreign governments.
In an application to the top court, Lakehead University law professor Ryan Alford said the case raises issues of public importance about the protections afforded to MPs and senators exercising their freedom of speech and debate.
Federal lawyers said in an opposing submission there was no need for the Supreme Court to consider the matter.
The top court, following its usual practice, gave no reasons for agreeing to hear the case. No date has yet been set for a hearing.
Alford said Thursday he is looking forward to the proceedings, adding he is confident the Supreme Court will “come up with something very nuanced and carefully considered.”
NSICOP made headlines in June upon releasing a public version of a classified report that said some parliamentarians were “semi-witting or witting” participants in the efforts of foreign states to interfere in Canadian politics.
The findings prompted a flurry of concern that members knowingly involved in interference might still be active in politics. The report also sparked debate about possible circulation of additional, sensitive details to non-committee members.
Green Party Leader Elizabeth May and NDP Leader Jagmeet Singh, who have top secret-level security clearances, were permitted to see the committee’s full report on foreign meddling.
May and Singh chose their words carefully when they spoke publicly about the classified version of the document.
NSICOP members must scrupulously guard the full details, even when speaking in the House of Commons or Senate.
Alford’s legal challenge began when he successfully argued in Ontario Superior Court that Parliament could not restrict parliamentary privilege without a constitutional amendment.
However, the Ontario Court of Appeal overturned the decision in April of this year.
A three-member panel of the Court of Appeal said Parliament can limit the right to freedom of speech and debate in the manner laid out in the legislation governing NSICOP, without a constitutional change.
In his application seeking a hearing at the Supreme Court, Alford said that since the establishment of responsible government in the United Kingdom, no government in any Westminster system has contemplated sending a member of Parliament to jail for what was said in debate in the legislature.
In their submission to the Supreme Court, federal lawyers said the Constitution Act of 1867 provides Parliament with the express legislative power to define the privileges of the House of Commons, the Senate and their members.
The relevant section of the legislation governing the committee “is a clear example of Parliament’s intention to exclude reliance on parliamentary privilege in the circumstances identified in the provision,” the federal submission said.
“It is for Parliament, not the courts, to determine the occasion and manner of the exercise of a privilege, such as the freedom of speech and debate.”