Supreme Court affirms law that curbs spy watchdog members’ parliamentary privilege

OTTAWA — The Supreme Court of Canada has upheld the constitutionality of legislation that limits the ability of members of a spy watchdog committee to use their parliamentary privilege to speak out.

The top court’s 8-1 decision settles a thorny legal question about the National Security and Intelligence Committee of Parliamentarians, better known as NSICOP.

The committee, made up of MPs and senators from various parties, has access to highly classified information.

Ordinarily, MPs and senators can claim parliamentary immunity from prosecution for statements made in Parliament.

However, members of NSICOP could face up to 14 years in prison for the improper disclosure of information protected through the legislation underpinning the committee.

Lakehead University law professor Ryan Alford spearheaded a constitutional challenge of the legislation. He successfully argued in Ontario Superior Court that Parliament could not restrict parliamentary privilege without a constitutional amendment.

The Ontario Court of Appeal overturned that decision in April 2024.

A three-member panel of the Court of Appeal said Parliament can limit the right to freedom of speech and debate in the manner laid out in the legislation governing NSICOP, without a constitutional change.

Alford then took his case to the Supreme Court.

In his request for a hearing in the top court, Alford said that since the establishment of responsible government in the United Kingdom, no government in any Westminster system has contemplated sending a member of Parliament to jail for statements made in debate in the legislature.

He called the legislation establishing NSICOP “revolutionary and unprecedented.”

Federal lawyers argued the Constitution Act of 1867 provides Parliament with the express legislative power to define the privileges of the House of Commons, the Senate and their members.

The government said it’s up to Parliament, not the courts, to determine the particulars on the exercise of a privilege, such as the freedom of speech and debate.

The Supreme Court agreed to review the matter and held two days of hearings in November.

In its judgment Friday, the top court said parliamentary privilege is an important part of Canada’s constitutional law.

Its purpose is to ensure the legislature’s freedom from undue interference from the executive and the judiciary, and it’s one of the ways in which the fundamental constitutional separation of powers is respected in Canada, the Supreme Court said.

The court found the disputed provision of the law concerning NSICOP amounts to a “narrow limitation” of parliamentary privilege — a limitation enacted in keeping with the Constitution.

Justice Malcolm Rowe, writing on behalf of the majority, said the provision does not lead to an abrogation or elimination of freedom of speech in Parliament.

Rather, it has a circumscribed effect, applying “only to the disclosure of specific national security information” obtained by members of NSICOP through their participation on the security and intelligence committee, Rowe wrote.

He noted the legislation is limited to the immunity held by those who choose to sit on the committee.

“It does not in any way limit privilege for other parliamentarians,” Rowe wrote. “Nor does it affect free speech in Parliament more broadly, with respect to anything other than protected information made available” to committee members by virtue of the law establishing NSICOP.

Rowe said that in imposing this limit on its own privileges, Parliament chose to enlarge the jurisdiction of the courts by permitting them to preside over criminal proceedings that might arise from improper disclosure of information — conduct that ordinarily would be shielded by parliamentary privilege.

This report by The Canadian Press was first published May 1, 2026.

Jim Bronskill, The Canadian Press