Court of Appeal Decision of the Week

Parliamentary Privilege & Public Interest Standing

Case: Alford v. Canada (Attorney General), 2019 ONCA 657 (CanLII)

Keywords: Public interest standing; parliamentary privilege; National Security and Intelligence Committee of Parliamentarians Act, S.C. 2017, c. 15

Synopsis:

The Applicant, Mr. Ryan Alford (a law professor at Lakehead University), initiates a challenge to s. 12 of the National Security and Intelligence Committee of Parliamentarians Act, S.C. 2017, c. 15. The impugned provision restricts parliamentarians’ constitutionally protected right of parliamentary privilege in circumstances where a member of the National Security and Intelligence Committee of Parliamentarians is prosecuted for disclosure of protected information.

The Application Judge denies Mr. Alford public interest standing to advance this constitutional challenge. The Court of Appeal finds the Application Judge erred in principle, grants Mr. Alford standing and refers the matter down for a decision at first instance.

Importance:

What is the test for public interest standing? For the Court of Appeal, an assessment of the three factors identified in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 SCR 524, 2012 SCC 45 (CanLII) is relevant in making this determination:

  1. Whether the case raises a serious justiciable issue;
  2. Whether the party bringing the case has a real stake in the proceedings; and
  3. Whether the proposed suit is a reasonable and effective means to bring the case to court. (See Downtown Eastside at para. 2)

The Court of Appeal found Mr. Alford satisfied each of these factors:

Mr. Alford raises a serious issue, suitable for adjudication. He has demonstrated a genuine interest in this issue, having published on the topic and having participated in committee hearings relating to the legislation. The challenge he wishes to bring is a reasonable and effective way to bring the matter before the court. He is highly competent and able to represent the constitutional issues at stake, and clearly motivated to do so. There can be no concern that he is a busybody or that his interest is purely academic. He sees this challenge as an issue of public importance impacting on fundamental principles of democracy. (See para 4).

In doing so, the Court of Appeal provided an important demonstration of the three factors at work. Significantly, the Court of Appeal determined the Application Judge had erred in principle by emphasizing the fact that Mr. Alford’s application lacked “…a concrete factual context and the benefit of the points of view of the persons most directly affected”. (See para. 3).

For the Court of Appeal, Mr. Alford’s constitutional challenge is about the constitutional competence of Parliament to restrict the privilege of its members without constitutional amendment. (See para. 3). As the matter has been sent down for a decision at first instance, it therefore remains to be seen how the significant legal questions raised by Mr. Alford will be answered.

Counsel for the Respondent: Alexander Gay (Civil Litigation Section, Ministry of Justice, Ottawa)

Counsel for the Appellant: Mr. Ryan Alford (“in person”, Associate Professor, Lakehead University)

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Posted: Tuesday, August 27, 2019