If the Supreme Court says MPs can name the bad apples in Parliament, parties with implicated members will want to pre-empt that possibility.

By Patricia Adams | Special to the Financial Post

The Supreme Court agreed last week to hear an appeal on the question of parliamentary privilege, an obscure area of constitutional law. The Court’s decision could be anything but obscure, however. If it agrees with the appellant — constitutional law professor Ryan Alford of Lakehead University — Canadians could learn the identity of perhaps a dozen witting or unwitting agents of the Chinese Communist Party (CCP) who now sit in Canada’s parliament.

Many, perhaps most, in this dirty dozen are believed to be Liberals, though Conservatives may also be involved, as the prime minister himself recently hinted at the public inquiry into such interference. Members from other parties may be on the list, too. The CCP doesn’t discriminate in whom it targets for corruption.

The court case involves 2017’s National Security and Intelligence Committee of Parliamentarians Act (NSICOP). It has become a double-edged sword for parliamentarians wanting to know whether China has been interfering in our elections. On the one hand, it allows MPs who sit on the top-secret NSICOP committee to learn of illicit activities by foreign countries. On the other hand, they have to bind themselves to Canada’s Foreign Interference and Security of Information Act, which strips them of their rights as parliamentarians to expose wrongdoing to the rest of parliament and the Canadian public. The penalty for revealing secret NSICOP committee information is up to 14 years in prison.  Usually, MPs can speak with impunity inside the Commons, protected from liability by parliamentary privilege. The NSICOP Act’s removal of privilege is what Alford has challenged.

NSICOP’s special report in June suggested collusion with Chinese agents was extensive, and included providing “information learned in confidence from the government to a known intelligence officer of a foreign state” and “transfers of funds approximating $250,000” from the CCP to help pro-Chinese candidates.

The revelations were so shocking NDP leader Jagmeet Singh described the parliamentarians as “traitors to the country,” a view seconded by other parliamentarians and prominent pundits. In contrast, Liberal spokesmen and the Green Party’s Elizabeth May, who saw the same unredacted report, saw no evil. May said she was “vastly relieved” at the report’s findings and called concerns the parliamentarians were traitors “overblown.”

Although NSICOP’s parliamentary members know who among their peers are implicated, their vow under the Act prevents them from naming names. The Supreme Court case challenges the constitutionality of muzzling our elected officials in this way. If Alford’s argument wins the day and the Court rules MPs retain their parliamentary privilege, the NSICOP’s members, or any parliamentarian, would be able to stand in the House and identify the legislators the June special report described as “semi-witting or witting” Chinese agents.  Canadians would finally learn who the “traitors” are (to use Singh’s word) making decisions in their name.

A Court decision before the next federal election would be a wild card that could devastate most political parties. Hearing and deciding appeals at the Court can be slow. In the normal course, a decision might well not come before next October, the deadline for an election. But the Court controls its own timing. It could decide prompt resolution of the case is in the national interest.

An early election, one called before the names of compromised MPs could be revealed, might well appeal to all parties. At the moment, the polls say the Conservatives would form a majority government, while the Liberals would go down to respectable defeat and likely become the Official Opposition. They wouldn’t like that outcome but it would be better than the complete wipeout that could follow the outing of implicated Liberal MPs should the Court uphold privilege.

By calling an early election, the Liberals could replace compromised candidates with untainted ones and, should they indeed lose, do their mea culpas once the compromised MPs were identified. They could then clean house in the four years until the next election, counting on voters’ forgiveness or amnesia during their re-build.

For the very same reason the Conservatives might also favour an early election. Even if only one or two Conservatives were identified as being among the dirty dozen, the Liberals could plausibly argue that China had corrupted both parties, thus undermining the Conservatives’ chances for a majority government. Any other party with compromised MPs might also want to sweep them under the rug and not sling mud at other parties for fear of being muddied in return.

The reasons given for an early election would not of course include the coming court case. The dire effects of Donald Trump’s proposed trade and immigration policies on Canada would provide all the cover the Liberals and others would need. But should the Supreme Court signal it may come down with a decision before next October, an early election would avoid the risk to the Liberals of being cratered and to the Conservatives of being denied their majority.

Read the full commentary by Patricia Adams at the publisher’s website here.

Patricia Adams, an economist, is executive director of China watchdog Probe International.