Two rulings have new and significant implications for revealing classified information following NSICOP’s report released on June 3.

By Christopher Nardi | Published by The National Post

Summary

OTTAWA – Can a member of the intelligence oversight committee claim parliamentary privilege to reveal classified intelligence in the House of Commons and be immune from prosecution? That question may be headed to the Supreme Court of Canada.

A late April ruling by the Ontario Court of Appeal has new and significant implications for the ongoing debate surrounding a bombshell report by the National Security and Intelligence Committee of Parliamentarians (NSICOP) on foreign interference in relation to parliamentary immunity.

The Ontario Court of Appeal’s ruling stated that members of NSICOP cannot claim parliamentary immunity if they “improperly” reveal state secrets obtained through their work. The ruling highlights a tension between national security concerns and the principle of parliamentary privilege in a Westminster-style democracy. Parliamentary privilege is a vital principle that gives legislators immunity for actions undertaken as part of their duties, but the court’s decision suggests that this immunity is not absolute when it comes to the disclosure of sensitive information.

The NSICOP Act includes a clause that excludes committee members from parliamentary immunity if they divulge sensitive information without proper authority, and the appeal court judges upheld the constitutionality of this provision.

However, the issue may not be settled, as Lakehead University constitutional law professor Ryan Alford has indicated his intention to seek a hearing at the Supreme Court of Canada to appeal the decision. Alford’s appeal could potentially lead to a definitive ruling on the scope of parliamentary privilege in relation to the disclosure of classified information by members of the intelligence oversight committee. NSICOP, established in 2017, is composed of MPs and senators of all political stripes.

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