The Supreme Court of Canada will consider the constitutionality of a law that restricts members of the spy watchdog from speaking under parliamentary privilege.
The Supreme Court’s decision Thursday to hear the case reopens thorny legal questions regarding the National Security and Intelligence Committee of Congress, known as NSICOP.
The committee is made up of congressmen and senators from various political parties and has access to highly classified information.
Generally, members of Congress and senators can claim parliamentary immunity from prosecution for statements made in Congress.
However, NSICOP members could face up to 14 years in prison if they improperly disclose information protected by the commission’s underlying law.
David McGuinty, chairman of the National Security and Intelligence Committee, said he and other members of the committee that compiled the report could be prosecuted if they published the names of members of Congress who are accused of colluding with foreign governments. He said that there is a possibility that
Lakehead University law professor Ryan Alford said in a petition to the Supreme Court that the case raises questions of public importance about the protections afforded to members of Congress and senators exercising their free speech and debate rights. He said he was raising the issue.
In their dissent, federal attorneys said there was no need for the Supreme Court to consider the issue.
The Supreme Court, as is standard practice, gave no reasons for agreeing to hear the case. A hearing date has not yet been set.
Alford said Thursday that he looks forward to the proceedings, adding that he is confident the Supreme Court will “make a very nuanced and carefully considered conclusion.”
NSICOP made headlines in June when it released the public version of a confidential report that found some members of parliament were participating “semi-intelligently or wittily” in foreign efforts to interfere in Canadian politics. .
The results of this investigation sparked concerns that members of Congress may continue to engage in political activities despite knowing that they are involved in interference. The report also sparked discussion about the potential for additional classified information to be distributed to non-committee members.
Green Party leader Elizabeth May and National Democratic Party leader Jagmeet Singh, who have top-secret security privileges, were given access to the full report of the commission into foreign interference.
May and Singh chose their words carefully when speaking publicly about the classified documents.
NSICOP members must carefully follow the details even when speaking in the House or Senate.
Mr. Alford’s legal challenge began with a successful case in Ontario Superior Court, arguing that Parliament cannot limit parliamentary privilege without amending the Constitution.
However, the Ontario Court of Appeal overturned that decision in April of this year.
The three-member Court of Appeals panel said Parliament could limit the right to free speech and discussion in the manner set out in the law governing NSICOP, without amending the Constitution.
In an application seeking a hearing in the Supreme Court, Mr Alford said that since responsible government was established in the UK, no government in the Westminster system had jailed MPs for speaking out in parliamentary debates. He said he had never considered sending it to the United States.
Federal lawyers said in a Supreme Court filing that the Constitution Act of 1867 gives Congress explicit legislative authority to define the privileges of the House of Representatives, the Senate, and their members.
The federal filing said the relevant clause in the bill providing for the commission is “a clear example of Congress’ intent to preclude reliance on parliamentary privilege in the circumstances identified in the clause.” .
“It is Congress, not the courts, that determines the opportunities and manner in which privileges such as freedom of speech and debate may be exercised.”
