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Courts - Supreme Court of Canada. 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. . Canada (Prime Minister) v. Hameed
In Canada (Prime Minister) v. Hameed (Fed CA, 2025) the Federal Court of Appeal notes the statutory status of the Supreme Court of Canada:[25] However trite, it must be recalled that the Federal Courts are statutory courts, whose enactment by statute — like the Supreme Court of Canada — was envisaged under section 101 of the Constitution Act, 1867, which allows "“for the Establishment of any additional Courts for the better Administration of the Laws of Canada.”" It follows that the Federal Courts’ inherent jurisdiction is not as broad as that of the provincial superior courts. . Leahy v. Canada (Justice)
In Leahy v. Canada (Justice) (Fed CA, 2023) the Federal Court of Appeal considers when the Supreme Court of Canada will reconsider an application for leave to appeal [under R73 of the Rules of the Supreme Court of Canada]:[1] This is an appeal of an order of the Federal Court (2021 FC 302, per Furlanetto J.). In that decision, Furlanetto J. granted the respondent’s motion to strike the appellant’s judicial review application of a decision of the Registrar of the Supreme Court of Canada (the Registrar). Under subsection 73(4) of the Rules of the Supreme Court of Canada, S.O.R./2002-156 (the Rules), the Registrar had refused the appellant’s motion for reconsideration of the Supreme Court’s decision to dismiss his motion for leave to appeal from a decision of this Court.
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[7] Settled jurisprudence—specifically, the Supreme Court’s decision in Stubicar v. Canada, 2014 SCC 38, [2014] 2 S.C.R. 104, the Federal Court of Appeal’s decision in Scheuneman v. Canada (Attorney General), 2003 FCA 194, 303 N.R. 359 [Scheuneman] and the Federal Court’s decision in Sydel v. Canada (Attorney General), 2013 FC 1116, 441 F.T.R. 310 [Sydel]—confirm that the Supreme Court cannot be compelled to consider a motion for reconsideration.
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