National security committee violates MPs’ parliamentary privilege: Ontario court

Canada’s fledgling national security committee is facing another challenge after an Ontario court ruled its secrecy provisions violate MPs’ parliamentary privilege.

The National Security and Intelligence Committee of Parliamentarians (NSICOP) was created by the Liberal government in 2017, giving security-cleared MPs and senators a measure of review and oversight into Canada’s security and intelligence agencies.

Canada was a laggard in providing public oversight to the necessarily secretive world of espionage and intelligence gathering. NSICOP was meant to fill that gap.

But the committee’s secrecy provisions were such that MPs and senators would not be covered by parliamentary privilege – a foundational concept in the Westminster system, which gives politicians immunity in parliamentary debates.

In May, an Ontario Superior Court ruled limiting parliamentarians’ privilege would require a constitutional amendment.

“The restriction on parliamentary privilege effected by … the (NSICOP) Act is beyond Parliaments constitutional competence to define … and exceeds Parliament’s authority to amend the Constitution of Canada pursuant to (section) 44 of the Constitution Act, 1982,” Justice John Fregeau wrote in a decision dated May 13.

“Section 12(1) of the Act is therefore declared invalid.”

A spokesperson for the Privy Council Office said they’ve received the decision and are “reviewing it closely,” but did not respond to Global’s specific questions, including whether or not the government will appeal the decision.

Lisa-Marie Inman, NSICOP’s executive director, said the committee would not comment on the matter, as an appeal is still possible.

“That notwithstanding, however, the committee always functions within the legislative structure to which it is subject,” Inman wrote in a statement.

The case was brought forward by Lakehead University law professor Ryan Alford in 2017.

In an interview, Alford said the fact that Canada had no tradition of parliamentary oversight into intelligence issues may have led the government to be more “aggressive” in NSICOP’s formation.

“I think that what this ruling clarifies is that you can’t have a situation where there is any form of parliamentary oversight where you can threaten a member of Parliament with prosecution for what’s said in the precincts of Parliament or in the course of parliamentary business,” Alford told Global News.

“So the question is do we accept the notion that the intelligence community will have no parliamentary oversight, or do we bite the bullet and say, well, if there is something so horrifying that a member of Parliament feels duty-bound … to discuss it, the question is, should the intelligence community have a veto over that?”

Alford said he believes the committee can continue to function as intended, but without the restriction on parliamentarians’ privilege set out in the original legislation.

NSICOP has produced some landmark reports into the operations of Canada’s sprawling security and intelligence apparatus, including into foreign espionage and influence and the country’s cyber defences. The committee has made efforts to build relationships with the country’s spy agencies, which have not been historically accustomed to the level of public scrutiny they now face.

But the committee has had some bumps on the road, as well. One of its original members, former Conservative MP Tony Clement, stepped down after revealing he was being extorted after texting sexually explicit images to who he believed to be a consenting adult.

More recently, the Conservative Party boycotted the committee over the Liberal government’s refusal to publicly release documents related to the firing of two employees at a Winnipeg infectious diseases lab.

Global News reported in March that spy agencies have also held back information from the committee, leading NSICOP to warn its work could be “compromised” if the situation continues.