Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter. Photo by AbsolutVision on Unsplash.
🕊️ On Friday, May 1, 2026, the Supreme Court of Canada will release its decision in Ryan Alford v. Canada (Attorney General). At issue is whether Parliament can, by ordinary legislation, prevent certain parliamentarians from claiming parliamentary privilege if they disclose protected information obtained through their NSICOP role in Parliament.
🎯 On April 17, 2026, the SCC released its decision in R. v. Nguyen, 2026 SCC 10. In a unanimous decision, the Court allowed the appeal in part, holding that a stay of criminal proceedings does not necessarily bar later forfeiture proceedings over seized or restrained property.
🤖 72% of Fantasy Courts players correctly predicted the result. The SCCbot also got it right.
🔮 Head over to Fantasy Courts to lock in your predictions for this week’s decision. Scroll down for details on this week’s case or a recap of last week’s judgment.
Case to Predict: Can Parliament Limit Parliamentary Privilege?
Appeal by leave from Alford v. Canada (Attorney General), 2024 ONCA 306
What Happened?
Parliament created the National Security and Intelligence Committee of Parliamentarians (NSICOP) to give selected MPs and Senators access to classified national security and intelligence information. Committee members are appointed by the Governor in Council, must obtain security clearances, and are required to keep protected information confidential.
Section 12 of the NSICOP Act says that a current or former Committee member cannot claim immunity based on parliamentary privilege in proceedings arising from a prohibited disclosure of protected information. It also makes statements made in Parliament or in a parliamentary committee admissible against them in those proceedings.
Ryan Alford, a law professor, challenged s. 12. The application judge agreed with him and declared the provision invalid. The Ontario Court of Appeal unanimously allowed Canada’s appeal, holding that s. 18 of the Constitution Act, 1867 gives Parliament authority to define parliamentary privileges, including by limiting them in the circumstances set out in s. 12.
What Was Argued at the SCC?
Appellant: Alford argues that freedom of speech and debate in Parliament is an inherent constitutional privilege. In his view, s. 12 does not merely define privilege but abrogates the core immunity that allows parliamentarians to speak in Parliament without fear of prosecution or court proceedings. Because that privilege is part of the Constitution of Canada, he says it cannot be removed by ordinary legislation under s. 18. He says it would require a constitutional amendment, and argues that the general 7/50 amending formula applies because the provision affects the powers of Parliament, responsible government, the separation of powers, and the courts’ role.
Respondent: Canada argues that s. 18 gives Parliament a plenary and continuing power to define the privileges and immunities of the Senate, the House of Commons, and their members. On Canada’s view, s. 12 is a narrow and deliberate safeguard: it applies only to parliamentarians who voluntarily join the Committee, receive extraordinary access to classified information, and disclose protected information in circumstances prohibited by law. Canada says no constitutional amendment was needed because Parliament was simply defining the scope of its own privileges.
What Else Should You Know Before Making a Prediction?
This is a separation of powers case wrapped in a national security problem. If the Court sides with Alford, the decision could constitutionalize a hard limit on Parliament’s ability to legislate around freedom of speech in Parliament, even for national security information. If the Court sides with Canada, Parliament will have significant room under s. 18 to tailor parliamentary privilege by statute. I’m leaning toward appeal allowed given that parliamentary speech is a core constitutional privilege.
SCCbot
This season, we’re also asking the SCCbot, an AI tool that predicts Supreme Court of Canada decisions, what it thinks the Court will do. The SCCbot is currently 7 for 8. For this week, the SCCbot is saying appeal dismissed. It reasons that s. 18 of the Constitution Act, 1867 plainly gives Parliament a plenary, ongoing power to “define” its own privileges. Section 12 isn’t the executive or the courts pruning Parliament’s privileges; it’s Parliament voluntarily limiting them, and only as against members who choose to sit on the NSICOP Committee on statutory terms that include that trade-off. That lines up with Vaid (Parliament is the judge of when to exercise privilege within a category) and Rowe J.’s Chagnon concurrence (a legislature that has legislated on a matter cannot then bypass its own statute via inherent privilege). Alford’s “irreducible core / implied amendment” theory is elegant, but it asks the Court to read a substantive limit into s. 18 that the text does not contain — a heavy lift on a unanimous ONCA judgment authored by Doherty J.A.
Previous Case Recap: R. v. Nguyen
R. v. Nguyen, 2026 SCC 10
Held (9:0): Appeal allowed in part. A stay of criminal proceedings does not automatically prevent the Crown from seeking forfeiture of seized or restrained property.
Key points:
- The Court held that forfeiture proceedings are distinct from criminal liability proceedings. They are not aimed at punishing an accused, but at preventing criminally tainted property from being returned to “unclean hands.”
- A stay for unreasonable delay is not the same as an acquittal for the purposes of forfeiture. The stay ended the criminal liability proceedings, but it did not decide whether the property was criminally tainted.
- The Crown could not rely on forfeiture provisions tied to trial or sentencing, including ss. 462.37 and 491.1 of the Criminal Code and s. 16 of the Controlled Drugs and Substances Act, because no trial or sentencing court remained seized of the matter.
- However, the Court held that the Court of Québec could still deal with much of the property under the residual seized-property regime in s. 490, with some property potentially governed by s. 462.43. Otherwise, the property would be left in indefinite limbo — neither returned nor forfeited.
- The matter was remanded to the Court of Québec to consider the Crown’s forfeiture application and the respondents’ application for return of the property. The Crown will have to prove that possession is unlawful and that there is no known lawful possessor to whom the property should be returned.
📊 72% of Fantasy Courts players predicted correctly! SCCbot also got it right.
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-Tom Slade