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Constitution (Non-Charter) - Parliamentary Privilege. 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".
The court considers the Parliament’s legislative authority over parliamentary privilege, here under s. 18 ['Privileges, etc., of Houses'] of the Constitution Act, 1867":B. The Nature of Parliamentary Privilege in Canadian Constitutional Law
[34] In Canada, parliamentary privilege can be defined as “the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions” (Vaid, at para. 29(2), adapted from Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament (23rd ed. 2004), at p. 75).
[35] Parliamentary privilege was originally a part of the Constitution of the United Kingdom, as settled after the English Civil War (1642-1651) and the Glorious Revolution (1688-1689). It emerged from the centuries-long struggle of the English House of Commons to assert its independence and autonomy from the monarch and from the courts (Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687, at para. 22; New Brunswick Broadcasting, at pp. 344 and 379; P. Doherty, “What is this ‘Mysterious Power’? An Historical Model of Parliamentary Privilege in Canada” (2017), 11 J.P.P.L. 383, at p. 390).
[36] While it originates in the United Kingdom, parliamentary privilege forms an important part of our own constitutional law, as is recognized by the recital in the preamble to the Constitution Act, 1867 stating the intent to provide Canada with “a Constitution similar in Principle to that of the United Kingdom” (see New Brunswick Broadcasting, at p. 375, per McLachlin J.). Indeed, the necessary insulation from external oversight that privilege provides is constitutionally inherent to any Westminster-modelled legislative body (New Brunswick Broadcasting; Chagnon, at paras. 1 and 24), such as those created by the Imperial government in the colonies of British North America, Australia and New Zealand (Kielley v. Carson (1842), 4 Moo. 63, 13 E.R. 225; see also E. Campbell, Parliamentary privilege in Australia (1966), at pp. 12-27; G. W. O’Brien, Pre-Confederation Parliamentary Procedure: The Evolution of Legislative Practice in the Lower Houses of Central Canada, 1792-1866, Ph.D thesis, Carleton University (1988), at pp. 108-13, 191-96, 303-4 and 375-77).
[37] Parliamentary privilege comprises corporate privileges belonging to legislative bodies and individual privileges enjoyed by their members (J. P. J. Maingot, Parliamentary Immunity in Canada (2016), at p. 18). Both are “a means to the effective discharge of the collective functions of the House” (Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament (25th ed. 2019), by D. Natzler and M. Hutton, eds., at para. 12.1). For individual parliamentarians, privilege is often described in terms of immunity, as “an exemption from some duty, burden, attendance or liability to which others are subject” (Chagnon, at para. 19, quoting Maingot, at p. 13).
[38] Since at least the 16th century, freedom of speech in Parliament was included among the ancient privileges of the English Houses of Parliament (Erskine May, at para. 12.4). This was codified following the Glorious Revolution in Article 9 of the Bill of Rights of 1689 (Eng.), 1 Will. & Mar. Sess. 2, c. 2, which provides that “the freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament”. This privilege ordinarily affords parliamentarians immunity from legal liability for statements made in the course of parliamentary proceedings, because such statements may not be used in judicial proceedings (Prebble v. Television New Zealand Ltd., [1995] 1 A.C. 321 (P.C.); Hamilton v. Al Fayed, [2000] 2 All E.R. 224 (H.L.); Stopforth v. Goyer (1979), 1979 CanLII 1661 (ON CA), 23 O.R. (2d) 696 (C.A.), at p. 700; Re Clark).
[39] Since its inception, parliamentary privilege has been chiefly asserted “against the prerogatives of the Crown [and] the authority of the ordinary [c]ourts” (J. Redlich, The Procedure of the House of Commons: A Study of its History and Present Form (1908), vol. I, at p. 46). In line with the history of its development, the purpose of parliamentary privilege is indeed to ensure the autonomy of the legislature from undue interference from the other branches of the state, namely the executive and the judiciary. It is “one of the ways in which the fundamental constitutional separation of powers is respected” in Canada (Vaid, at para. 21).
[40] Accordingly, parliamentary privilege refers to legislative bodies’ exclusive authority to set and enforce their own rules and to conduct their proceedings without interference from the courts. From the latter’s viewpoint, it is primarily a rule of curial jurisdiction (Canada (Attorney General) v. Power, 2024 SCC 26, at para. 151, per Jamal J., dissenting in part, but not on this point), precluding judicial scrutiny of the exercise of a set of constitutionally protected privileges. The principles of parliamentary privilege are therefore “a means of distinguishing areas of judicial and legislative body jurisdiction” (Duffy, at para. 35; New Brunswick Broadcasting, at pp. 383-84; see also R. v. Chaytor, [2010] UKSC 52, [2011] 1 A.C. 684, at paras. 14-16; Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112, at p. 1168).
[41] When parliamentary privilege is alleged, the role of a court is to ascertain the boundary between its own domain of jurisdiction and that of the legislative body by determining whether the existence of an asserted privilege is established. Once this dividing line has been set, the court cannot cross it to review the legislative body’s exercise of the privilege (Vaid, at paras. 40-41 and 47-48; Chagnon, at paras. 2 and 32; New Brunswick Broadcasting, at p. 350, per Lamer C.J., and at pp. 384-85, per McLachlin J.; M. Rowe, “The Unwritten Constitution: A Short Description” (2025), 19 J.P.P.L. 271, at p. 279). This is so even when it is alleged that such exercises trench on certain rights protected by the Canadian Charter of Rights and Freedoms (New Brunswick Broadcasting). Rather, “[i]n matters of privilege, it would lie within the exclusive competence of the legislative assembly itself to consider compliance with human rights and civil liberties” (Vaid, at para. 30) through the exercise of its own enforcement powers (Duffy, at para. 91; see also Canada, House of Commons, House of Commons Procedure and Practice (4th ed. 2025), by E. Janse and J. LeBlanc, at ch. 3).
[42] Thus, while the common law recognizes parliamentary privilege, the common law is not its source and cannot vary or otherwise affect the laws and customs of Parliament. Decisions as to such matters are for the legislatures themselves to make, as they see fit, from time to time (Maingot, at p. 304; Reference re Resolution to amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753, at pp. 784-85).
[43] This is reflected in s. 18 of the Constitution Act, 1867, which assigns Parliament the power to define its privileges by legislation, subject to the express limit that they do not exceed those of the House of Commons in the United Kingdom.
[44] That power was exercised by Parliament through what is now s. 4 of the Parliament of Canada Act. Section 4(a) incorporates by reference in Canadian law the privileges, immunities, and powers held by the British House of Commons at Confederation in 1867. These include freedom of speech in Parliament (Vaid, at para. 29(10); Gagliano v. Canada (Attorney General), 2005 FC 576, [2005] 3 F.C.R. 555). As a result, at the federal level, “the ‘main body’ of the parliamentary privileges are ‘legislated privileges’, rather than ‘inherent privileges’” (Power, at para. 146, per Jamal J., dissenting, but not on this point, quoting Vaid, at para. 36; see also Duffy, at paras. 28-30). Regardless of the source of privilege, the jurisdictional immunity it attracts is the same. This is because the immunity “flowing from the doctrine of privilege is conferred by the nature of the function (the Westminster model of parliamentary democracy), not the source of the legal rule (i.e., inherent privilege versus legislated privilege)” (Vaid, at para. 34).
[45] Section 4 of the Parliament of Canada Act is not itself constitutionally entrenched under s. 52 or Part V of the Constitution Act, 1982. It can be amended in a manner similar to other legislation, as is provided by s. 18 of the Constitution Act, 1867.
C. Section 18 of the Constitution Act, 1867
[46] To determine the constitutionality of s. 12 of the NSICOP Act, the scope of Parliament’s legislative authority to define the privileges of the Senate and the House of Commons must be ascertained. This requires interpreting s. 18 of the Constitution Act, 1867, to which I turn now.
(1) Principles of Constitutional Interpretation
[47] The interpretation of a constitutional provision must be anchored in the meaning of its words, considered in context, with a view to the purpose it was intended to serve (R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, at para. 16; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 155-56). Constitutional documents must be read generously and purposively within their textual, contextual, and historical confines (Blais, at paras. 17 and 40).
[48] The meaning given to a constitutional provision must also be harmonious with the structure of government implemented by the Constitution, as expressed through both the 1867 and 1982 Constitution Acts (Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 50; Reference re Senate Reform, at para. 26). The interpretation of a single provision must be consistent with other provisions of the Constitution: one part of the Constitution cannot be construed to deprive another of its effect (New Brunswick Broadcasting, at pp. 373 and 390).
[49] The interpretive exercise is therefore guided and “constrained by the language, structure, and history of the constitutional text, by constitutional tradition, and by the history, traditions, and underlying philosophies” of the system of government these enactments are intended to establish (Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313, at p. 394).
(2) Text
[50] The first step to interpreting s. 18 is to consider the ordinary and grammatical meaning of its text. Section 18 reads:18 The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.
18 Les privilèges, immunités et pouvoirs que posséderont et exerceront le Sénat et la Chambre des Communes et les membres de ces corps respectifs, seront ceux prescrits de temps à autre par loi du Parlement du Canada; mais de manière à ce qu’aucune loi du Parlement du Canada définissant tels privilèges, immunités et pouvoirs ne donnera aucuns privilèges, immunités ou pouvoirs excédant ceux qui, lors de la passation de la présente loi, sont possédés et exercés par la Chambre des Communes du Parlement du Royaume-Uni de la Grande-Bretagne et d’Irlande et par les membres de cette Chambre.[1] [51] The wording refers to the “privileges, immunities, and powers to be held” by the Senate, the House of Commons, and their members, without distinction. There is no textual signal here to suggest that the phrase describes anything narrower than the sum total of privileges, immunities, and powers that comprise parliamentary privilege at the federal level.
[52] The parties disagree over what it means to “define” parliamentary privilege. The ordinary and grammatical meaning of the word “define” is “to say what something is and/or what something is not”, “describe or explain the scope, essential qualities, etc. of (something)” or “determine or indicate the boundary or extent of (something)” (C.A. reasons, at para. 43; Canadian Oxford Dictionary (2nd ed. 2004), at p. 395).
[53] When asked to interpret the word “define” in s. 35 of the Victoria Constitution Act, 1855 (U.K.), 18 & 19 Vict., c. 55 — a provision with a comparable purpose to s. 18 in the Australian colony — the Judicial Committee of the Privy Council held that it was equivalent to “declare” these privileges (Dill v. Murphy, (1864), 1 Moo. N.S. 487, 15 E.R. 784, at p. 794). Accordingly, I agree with the Attorney General of Canada’s interpretation of the ordinary meaning of the word “define” in s. 18 as being that Parliament has authority “to set or declare the contours or scope of its parliamentary privileges, immunities and powers” (R.F., at para. 28).
[54] Within s. 18, the form that such definition should take — an “Act of the Parliament of Canada” — is unambiguously set out. The text also supports the view that the power to define any of the privileges, immunities, and powers to be held by the Houses of Parliament is ongoing — Parliament may define these privileges by legislation “from time to time”. This runs contrary to the appellant’s contention that some privileges would be frozen in time, beyond the reach of Parliament’s legislative authority.
[55] As for limits on Parliament’s exercise of its legislative authority under s. 18, the text provides only an “upper” limit on an attempt to supplement the privileges enjoyed by its Houses and their members: Parliament may only grant them a privilege belonging to the British House of Commons at the time of the grant (Maingot, at pp. 19-20; Canada (Board of Internal Economy) v. Boulerice, 2019 FCA 33, [2019] 3 F.C.R. 145, at paras. 57-58; Vaid, at para. 33; Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876, at para. 66, per McLachlin J. (as she then was), concurring in the result). This benchmark is itself not set in time, which further supports the interpretation that the power is ongoing.
[56] The text of s. 18 does not contain any express language to preclude the limitation of certain privileges, powers, or immunities. If there is a floor, as the appellant and others contend, it consists in my view in the ordinary principle of public law that an authority may not be exercised in a manner that is inconsistent with the purpose for which it is granted, as understood by reference to the historical and constitutional context.
(3) Historical Context
[57] The current version of s. 18 was enacted by the Parliament of Canada Act, 1875 (U.K.), 38 & 39 Vict., c. 38. By the terms of that Act’s preamble, it replaced the original provision of the British North America Act, 1867 (U.K.), 30 & 31 Vict., c. 3, in order to remove all “doubts . . . with regard to the power of defining by an Act of the Parliament of Canada, in pursuance of the said section, the said privileges, powers, or immunities” which had arisen from the previous wording. The Imperial Parliament’s express intention in enacting s. 18 was to confirm the Parliament of Canada’s power under this provision to legislate the privileges of its Houses and their members, up to and including any of those held by the British House of Commons.
[58] This mirrored the Imperial Parliament’s own power to do so. Indeed, under the Constitution of the United Kingdom, the principle was, and still is, that the British Parliament can define the privileges of its Houses by legislation as an exercise of parliamentary sovereignty. This was described by Blackstone as “the principal privilege of parliament” (Commentaries on the Laws of England (1765), Book I, at p. 159). That principle was recently reaffirmed by the Supreme Court of the United Kingdom in Chaytor: “It is, of course, always open to Parliament by legislation to provide for the courts to encroach on matters falling within its exclusive cognisance, or even on article 9 privilege . . .”, which relates to freedom of speech in Parliament (para. 67; see also Stockdale, at pp. 1153-54).
[59] In this regard, s. 18 fully accords with the preamble to the Constitution Act, 1867, which provides that the Constitution of Canada is to rest on similar principles to that of the United Kingdom.
[60] The provincial legislatures of Canada already possessed that same competence, as later jurisprudence confirmed. In Fielding v. Thomas, [1896] A.C. 600, the Judicial Committee of the Privy Council ruled that provincial legislatures had held the power to define the privileges of their legislative assemblies ever since the enactment of s. 5 of the Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict., c. 63, which gave them the competence to “make laws respecting the constitution, powers, and procedure of such legislature”.
[61] The same authority was subsequently carried over in s. 92(1) of the Constitution Act, 1867 (now repealed) which granted provincial legislatures the competence to make laws for “[t]he Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor.” In 1982, s. 92(1) was essentially replaced with s. 45 of the Constitution Act, 1982, to the same effect (see OPSEU v. Ontario (Attorney General), 1987 CanLII 71 (SCC), [1987] 2 S.C.R. 2, at p. 33; Reference re Senate Reform, at paras. 47-48; Chagnon, at para. 60, per Rowe J., concurring; see also W. J. Newman, “Parliamentary Privilege, the Canadian Constitution and the Courts” (2008), 39 Ottawa L. Rev. 573, at pp. 580-81).
[62] Unlike the provincial legislatures, prior to 1949, the Parliament of Canada lacked the authority to make laws respecting its own Constitution — the Imperial Parliament retained that power. It was only in 1949 that the British North America (No. 2) Act, 1949 (U.K.), 13 Geo. 6, c. 81, added s. 91(1) to the Constitution Act, 1867 (now repealed), to provide Parliament with the competence to make laws for the “amendment from time to time of the Constitution of Canada” subject to a number of listed exceptions, notably matters of provincial interest.
[63] This made it necessary, in 1867, to enact s. 18 as an exception to the rule, so as to expressly grant Parliament the authority to legislate the privileges of its Houses and their members (see L. P. Pigeon, “Are the Provincial Legislatures Parliaments?” (1943), 21 Can. Bar Rev. 826, at p. 830).
(4) Constitutional Context
[64] In addition to the historical context, s. 18 must also be read harmoniously with the Constitution as a whole, including other parts that expressly relate to the functioning of Parliament. An example is the right to use either English or French in debates and other proceedings of Parliament, guaranteed by both s. 17(1) of the Charter and s. 133 of the Constitution Act, 1867. Other examples of provisions expressly directed at the internal operation of Parliament are ss. 53 and 54 of the Constitution Act, 1867, which relate to the financial procedures in the House of Commons. It follows that s. 18 of the Constitution Act, 1867 could not be relied upon to enact legislation that would contravene the requirements of these or similar provisions.
[65] The purpose of s. 18 must also be informed by Parliament’s essential character, in our constitutional architecture, as the legislative branch of a government similar in principle to the United Kingdom’s, as contemplated by the preamble of the Constitution Act, 1867.
[66] Accordingly, s. 18 is subject to similar limits as s. 44 of the Constitution Act, 1982 in that it cannot be used to fundamentally alter the architecture of the Constitution by way of ordinary legislation (Reference re Senate Reform, at para. 97). Section 44, which carried over in many respects s. 91(1) of the Constitution Act, 1867, gives Parliament the authority to amend provisions of the Constitution that relate to the federal government so long as the resulting amendment does not affect provincial interests or alter the fundamental structure of the Constitution (W. J. Newman, “Constitutional Amendment by Legislation”, in E. Macfarlane, ed., Constitutional Amendment in Canada (2016), 105, at p. 117; Reference re Senate Reform, at paras. 44-48). Likewise, s. 18 cannot be used to make changes to the Constitution that are subject to the other amending formulas set out in Part V of the Constitution Act, 1982 (see Reference re Authority of Parliament in relation to the Upper House, 1979 CanLII 169 (SCC), [1980] 1 S.C.R. 54 (“Upper House Reference”)).
(5) Purpose
[67] The purpose of s. 18 must be connected to the purpose of parliamentary privilege itself: to protect the autonomy legislative bodies need to “ensure the proper functioning of a representative democracy” (Chagnon, at para. 20). The preamble to the Constitution Act, 1867 “gives expression to the nature of the legislative bodies that were continued or established by it” (New Brunswick Broadcasting, at p. 368, per La Forest J., concurring) and thereby confirms parliamentary privilege’s purpose to ensure Parliament can function as a legislative body in a Westminster-style parliamentary system of government (Harvey, at para. 68).
[68] Accordingly, and consistent with its text and context, the purpose of s. 18 is to allow Parliament to define the privileges, powers, and immunities it needs to protect its functions as a legislative body. This ability to define for itself the extent of the privileges it requires reflects the very autonomy that parliamentary privilege is intended to protect.
[69] It follows that courts should be cautious when reviewing exercises of legislative authority under s. 18 so as to avoid interfering with Parliament’s autonomy to define what it needs to carry out its own constitutional role. As McLachlin J. emphasized in Harvey (at para. 79), “the legislature is in at least as good a position as the courts, and often in a better position, to decide what it requires to function effectively”. Indeed, parliamentary privilege exists “to provide protection against outside interference that is unwarranted and intrusive” (C. Robert, “Falling Short: How a Decision of the Northwest Territories Court of Appeal Allowed a Claim to Privilege to Trump Statute Law” (2011), 79 The Table 19, at pp. 25-26 (emphasis added)). Accordingly, it will not usually be an impediment to the functioning of a legislature for it to comply with its own enactments (Chagnon, at para. 66, per Rowe J., concurring). In this regard, I agree with the Court of Appeal that the opposite proposition “collides with both the rationale for the existence of parliamentary privilege and the specific language of s. 18 of the Constitution Act, 1867” (para. 52).
[70] The courts’ role is limited to ensuring that this authority is exercised within the limits set by the Constitution. Among these is the inherent constraint that the authority conferred by s. 18 may only be exercised for the purpose for which it is granted. Thus, s. 18 cannot be used for any purpose other than to enable Parliament to carry out its functions. For example, s. 18 could not properly be relied upon as the source of authority to effectively abolish parliamentary privilege as a whole. Nor could it be used to fundamentally impair the ability of the Houses of Parliament to carry out their essential functions as deliberative law-making assemblies in which the executive is held to account.
[71] This is consistent with the limit in s. 44 against using ordinary legislation to alter the fundamental structure of the Constitution. In this sense, the purposive and structural limits on s. 18 are two sides of the same coin: the legislative authority it confers cannot be used to fundamentally undermine Parliament’s function as a Westminster-style legislature, which itself would constitute a fundamental change to the structure of government created by the Constitution.
(6) Conclusion
[72] Reading the text of s. 18 broadly, in its historical and constitutional context, it is clear that it grants Parliament the authority both to supplement and to limit its privileges as it deems appropriate to fulfill its constitutional role. This is subject only to three constraints. First, Parliament cannot grant itself privileges, immunities, or powers that exceed those of the British House of Commons at the time of the grant. Second, s. 18 cannot be used in a manner that would fundamentally undermine Parliament’s function as a legislature in Canada’s Westminster-style parliamentary democracy, as this would run counter to its purpose. And third, s. 18 must of course be used consistently with other provisions of the Constitution that expressly relate to the functioning of Parliament.
[73] The question that follows is whether s. 12 of the NSICOP Act, a legislative effort to limit rather than supplement parliamentary privilege, is intra vires Parliament’s authority under s. 18. In my view, for the reasons set out below, it is.
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