



COURT OF APPEAL FOR ONTARIO

CITATION: Alford v. Canada (Attorney General), 2019 ONCA 657

DATE: 20190815

DOCKET: C65714

Paciocco, Harvison Young and Zarnett JJ.A.

BETWEEN

Ryan Alford

Applicant (Appellant)

and

Canada (Attorney-General)

Respondent (Respondent in Appeal)

Ryan Alford, in person

Alexander Gay, for the respondent

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 judges
    decision denies Mr. Alfords 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 judges decision is
    not entitled to deference.

[4]

In our view, Mr. Alfords 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. Alfords 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. Alfords success before us, the costs
    order below is set aside. The parties have undertaken not to not 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.


