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Constitution (Non-Charter) - Amendment. 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.
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