What is the National Security and Intelligence Committee of Parliamentarians Act?
In 2017, the National Security and Intelligence Committee of Parliamentarians (‘NSICOP’) was created “to ensure that Canadian law enforcement and intelligence operations and their corresponding agencies are compliant, efficient and effective.”[1]Therefore, the National Security and Intelligence Committee of Parliamentarians Act (‘the Act’) was created to protect any intelligence oversight and make agencies, such as CSIS, accountable for their actions including any abuses.[2]However, in doing so, parliamentary privilege was taken from the members of NSICOP through s 12 of the Act.[3]
Section 12 Of The Act Is Deemed Unconstitutional By Professor Alford
On June 12, 2017, many intellectuals presented arguments about the constitutional validity of the Act at the proceedings of the standing senate committee on national security and defence.[4]One speaker, Professor Alford, an associate professor at Bora Laskin Faculty of Law at Lakehead University, stated that the Act is “a serious threat to parliamentary sovereignty to say that these people, who are essentially now just on an advisory committee to the Prime Minister, are prevented from acting in their capacity as parliamentarians in a way which is constitutionally deficient.”[5]More importantly, Professor Alford believes that s 12 is unconstitutional because it “prevents Parliamentary privilege from being invoked if a member of the National Security and Intelligence Committee of Parliamentarians is prosecuted for disclosing protected information.”[6]Although the Senate was challenged with arguments presenting foreseen problems, the Act came into force on October 6, 2017.[7]
The Decision of the Ontario Superior Court of Justice
In 2018, Professor Alford, brought an application to the Ontario Superior Court of Justice (‘ONSC’), arguing that the removal of parliamentary privilege, which is “a fundamental alteration of the powers of the Senate and House of Commons,”[8]is unconstitutional.[9]
Nevertheless, the Court believed that Professor Alford could not move forward with a constitutional challenge nor could he be given any Standing to his application.[10]Justice W.D. Newton determined that Professor Alford was not considered a person “directly affected by the issue”[11]and lacked “a concrete factual context”[12]even with his credentials as an academic and his expertise in constitutional law.[13]
The Decision of the Ontario Court of Appeal
Professor Alford appealed the decision at the Ontario Court of Appeal (‘ONCA’) where the Court determined that Professor Alford does, in fact, have a public interest Standing.[14]The Court expressed the importance of the issue raised by Alford, that he is an individual who has an interest in the matter, that “he is highly competent and able to represent the constitutional issues at stake,”[15]and, therefore, his interest in the matter goes beyond academia but the publics interests and Canadian democracy as well.[16]
Will Professor Alford Succeed in his Constitutional Challenge?
Although neither ONSC nor ONCA discussed the application of Professor Alford on its merits of its constitutional challenge, it will be interesting to see whether the Applicant is successful in arguing the constitutional validity of s 12 of the Act in the future.
[1]Peter Chalk, “Domestic Counter-Terrorist Intelligence Structures in the United Kingdom, France, Canada, and Australia” (2020) Studies in Conflict Terrorism 1 at 15.
[2]Alford, “Bill C-59 and the Former Bill C-22: Compromised Oversight and Continuing Threats to Non-Derogable Rights” (2018) 69 UNBLJ 57 at 68.
[4]Senate of Canada, Proceedings of the Standing Senate Committee on National Security and Defence, Evidence, 42:1, No 16 (12 June 2017).
[5]Senate of Canada, Proceedings of the Standing Senate Committee on National Security and Defence, Evidence, 42:1, No 16 (12 June 2017) at 18:35 (Ryan Alford).
[6]Alford v Canada (Attorney General), 2019 ONCA 657 at para 1.
[7]National Security and Intelligence Committee of Parliamentarians Act, S.C. 2017, c. 15
[8]Alford v Canada (Attorney General), 2018 ONSC 3984 at para 5.
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Arghavan Gerami
Arghavan Gerami is the Founder and Senior Counsel at Gerami Law Professional Corporation ('PC'), a full-service immigration law firm in Ottawa, Ontario. Since 2011, Ms. Gerami has focused her practice on immigration and refugee litigation. Prior to that, Ms. Gerami worked at the Ministry of Attorney General and the Department of Justice and had the privilege of serving the Honourable Mr. Justice M. Evans at the Federal Court of Appeal on immigration and administrative law appeals. Ms. Gerami contributes to the Immigration Law Section of the Canadian Bar Association, the Canadian Association of Refugee Lawyers, and the United Nations High Commissioner for Refugees. Ms. Gerami has also published numerous journal articles and presented at various immigration and refugee law conferences and events across Canada.