COURT FILE NO.: CV-17-0504-00
DATE: 2018-06-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RYAN ALFORD
Self-Represented
Applicant
- and -
CANADA (ATTORNEY GENERAL)
A. Gay, for the Respondent
Respondent
HEARD: April 27, 2018, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision On Application
Overview
[1] On October 6, 2017, Parliament proclaimed in force the National Security and Intelligence Committee of Parliamentarians Act, S.C. 2017, c. 15 ("the Act").
[2] The committee, comprised of government and non-government Members of Parliament and Senators, has the following mandate:
Review of national security matters
8 (1) The mandate of the Committee is to review
(a) the legislative, regulatory, policy, administrative and financial framework for national security and intelligence;
(b) any activity carried out by a department that relates to national security or intelligence, unless the activity is an ongoing operation and the appropriate Minister determines that the review would be injurious to national security; and
(c) any matter relating to national security or intelligence that a minister of the Crown refers to the Committee.
[3] Not surprisingly, members of the committee must obtain the necessary security clearances and take a prescribed oath or solemn affirmation not to "communicate or use without due authority any information obtained in confidence by me…". Disclosure of information obtained while performing their duties is prohibited.
[4] The focus of this application is s. 12 of the Act, which provides as follows:
Parliamentary privilege
12 (1) Despite any other law, no member or former member of the Committee may claim immunity based on parliamentary privilege in a proceeding against them in relation to a contravention of subsection 11(1) or of a provision of the Security of Information Act or in relation to any other proceeding arising from any disclosure of information that is prohibited under that subsection.
Evidence
(2) A statement made by a member or former member of the Committee before either House of Parliament or a committee of the Senate, of the House of Commons or of both Houses of Parliament is admissible in evidence against them in a proceeding referred to in subsection (1).
[5] The applicant, Dr. Ryan Alford, an associate professor at the Bora Laskin Faculty of Law of Lakehead University, takes the position that this Act is unconstitutional. He argues that the removal of parliamentary privilege is a fundamental alteration of the powers of the Senate and House of Commons and, as such, s. 12 will only be legal if passed pursuant to the Constitution's general amending formula.
[6] Canada argues that the legislation is validly enacted and, as a preliminary matter, challenges the applicant's standing to bring this application.
Standing – The Law
[7] The leading case on standing is Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. In that case, the Supreme Court reviewed the three factors to be considered in granting standing:
i) whether there is a serious justiciable issue raised;
ii) whether the plaintiff has a real stake or a genuine interest in it; and
iii) whether the proposed suit, in all the circumstances, is a reasonable and effective means of bringing the matter before the court (see paras. 37 and 52).
[8] Justice Cromwell concluded that these factors must be assessed in a flexible and purposive manner (para. 52) in light of the underlying purposes of limiting standing (para. 20).
[9] This purposive approach requires the court to consider "whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality" (para. 50).
[10] The court provided an illustrative, but non-exhaustive, list of matters that may be taken into account such as:
• the plaintiff's capacity to bring forward a claim;
• whether the issue will be presented in a sufficiently concrete and well-developed factual setting;
• whether the case is of public interest in the sense that it transcends the interests of those most directly affected by the challenged law or action;
• whether there are realistic alternative means which would favour a more efficient and effective use of judicial resources and would present a context more suitable for adversarial determination (para. 51).
Standing – The Facts
[11] The applicant describes himself in his factum as: "a legal scholar and professor of constitutional law whose research and teaching focuses on the constitutional rights embedded by the Preamble of the Constitution Act, 1867 and their importance to the rule of law." The applicant goes on to state in his factum that he "has a genuine interest in its validity, and is no mere busybody, having been chosen to give evidence on Bill C-22 (which became the Act) by the Senate Standing Committee on National Security and Defence."
[12] The applicant argues that there is no other reasonable and effective way to bring the issue before the court since Senators or Members of Parliament serving on this committee could not challenge the constitutionality of the provision "without exposing themselves to serious criminal liability".
[13] Canada argues that the applicant has no real stake in this litigation "beyond an academic exercise" and that the applicant's interest is not a "personal interest" for the purpose of standing. Canada argues that, as persons directly impacted, members of the committee could challenge the legislation without incurring criminal liability and that a challenge by the members of the committee would provide more context to these important arguments.
Analysis and Disposition
[14] While it is tempting to rule on this interesting constitutional question, I conclude that it is not appropriate for me to do so.
[15] Central to my conclusion is the fact that one of the underlying purposes of limiting standing is the "need for courts to have the benefit of contending points of view of the persons most directly affected by the issue" (Downtown East Side, supra, at para. 29):
Courts function as impartial arbiters within an adversary system. They depend on the parties to present the evidence and relevant arguments fully and skillfully. "[C]oncrete adverseness" sharpens the debate of the issues and the parties' personal stake in the outcome helps ensure that the arguments are presented thoroughly and diligently: see, e.g., Baker v. Carr, 369 U.S. 186 (1962), at p. 204.
[16] Related to this is the potential impact of this application on the rights of others more directly affected.
[17] As was stated in Hy and Zel's Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General), 1993 CanLII 30 (SCC), [1993] 3 S.C.R. 675, [1993] S.C.J. No. 113, [1993] A.C.S. no 113 and Danson v. Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] 2 S.C.R. 1086, "the failure of a diffuse challenge could prejudice subsequent challenges to the impugned rules by parties with specific and factually established complaints" (Hy and Zel's Inc., supra, at para. 20).
[18] While the applicant may have a special interest as an academic and acknowledged expertise (he made the same arguments before the Senate committee), the applicant has no real stake in this matter. Therefore, I am concerned that arguments that could be advanced by those with a direct interest may have not been considered. I am also concerned that, absent a proper factual context, other arguments may be missed.
[19] Therefore, I conclude that the applicant should not be given standing to bring this application.
[20] If costs are sought, Canada shall deliver its costs submissions limited to three pages plus costs outline plus authorities within 21 days. Thereafter, the applicant will have 21 days to deliver his response, again, limited to three pages plus authorities. If costs submissions are not received within 21 days then costs will be deemed settled.
"Original signed by"
The Hon. Mr. Justice W.D. Newton
Released: June 25, 2018
COURT FILE NO.: CV-17-0504-00
DATE: 2018-06-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RYAN ALFORD
Applicant
- and -
CANADA (ATTORNEY GENERAL)
Respondent
DECISION ON APPLICATION
Newton J.
Released: June 25, 2018
/lvp