Court of Appeal for Ontario

Date: 2019-08-15 Docket: C65714

Panel: Paciocco, Harvison Young and Zarnett JJ.A.

Between

Ryan Alford Applicant (Appellant)

and

Canada (Attorney-General) Respondent (Respondent in Appeal)

Counsel

Ryan Alford, in person

Alexander Gay, for the respondent

Hearing and Release

Heard and released orally: August 13, 2019

On appeal from: the order of Justice W. Danial Newton of the Superior Court of Justice, dated June 25, 2018.

Reasons for Decision

[1] Mr. Alford, a law professor with expertise in constitutional law and national security, initiated a challenge to the National Security and Intelligence Committee of Parliamentarians Act, S.C. 2017, c. 15, s. 12, alleging that it contravenes the inherent constitutionally protected right of Parliamentary privilege. In simple terms, s. 12 prevents Parliamentary privilege from being invoked if a member of the National Security and Intelligence Committee of Parliamentarians is prosecuted for disclosing protected information.

[2] The application judge denied Mr. Alford public interest standing to advance this challenge. Having denied him standing, the application judge did not go on to decide the application on its merits.

[3] In our view, the application judge erred in principle in denying Mr. Alford standing. At its heart, the application judge's decision denies Mr. Alford's public interest standing because the application lacks a concrete factual context and the benefit of the points of view of persons most directly affected. However, factual context can have no appropriate bearing on this constitutional challenge, and diversity of points of view would be of no assistance on the pure question of law Mr. Alford brings. This challenge is to the constitutional competence of Parliament to pass legislation abridging Parliamentary privilege, without a constitutional amendment. Given this error in principle, the application judge's decision is not entitled to deference.

[4] In our view, Mr. Alford's public interest standing should be recognized. A balancing of the factors identified in Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General), 2012 SCC 45, [2012] 2 S.C.R. 524, supports this conclusion. 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.

[5] We therefore allow Mr. Alford's appeal from the decision denying him public interest standing, and grant him that standing. However, we do not consider it appropriate to deal with the merits of the constitutional dispute at this stage. In our view, if this court is ultimately to adjudicate this question we would benefit from a decision at first instance where the parties would have fuller opportunity to argue the case on complete materials.

[6] Given Mr. Alford's success before us, the costs order below is set aside. The parties have undertaken not to seek costs against each other going forward, and we accept their agreement that no costs should be ordered on this appeal.

David M. Paciocco J.A. Harvison Young J.A. B. Zarnett J.A.