OP-ED: Poilievre’s NSICOP security clearance is a political censorship trap
Christine Van Geyn writes: "While from the outside this case might look like an esoteric academic issue, it’s anything but."
Author: Christine Van Geyn
Pierre Poilievre’s security clearance is back in the news following a new report in the Globe and Mail. In that report, an anonymous source with top-secret security clearance has claimed that CSIS learned Indian agents were involved in raising money and organizing within the South Asian community for Mr. Poilievre during his 2022 campaign for Conservative leader. We do not know who leaked this information to the Globe. We do not know if it was a member of CSIS, or a politically aligned staffer, or a bureaucrat.
But we do know that Mr. Poilievre was never told this information, and the timing of this leak to the media seems intended to impact the 2025 federal election underway. Mr. Poilievre was never told because he had declined to get security clearance. The rationale for his decision is justifiable: getting the clearance places him in a catch-22 because of a likely unconstitutional law, especially if the undertakings being extracted in response to a briefing on special materials tracks the statutory language.
That law is the National Security and Intelligence Committee of Parliamentarians Act (NSICOP). The NSICOP Act creates a Committee of Parliamentarians who are given the authority to access information that the government would rather not disclose. The law requires that these Parliamentarians keep the material confidential, and if they disclose it, even in Parliament, they can be subject to criminal penalties with a sentence of up to 14 years in prison.
This law upends centuries of practice in Westminster governments. Normally, Parliamentarians have immunity from prosecution for statements made in Parliament and have since the establishment of responsible government in the United Kingdom. Until now, no Westminster government has contemplated sending a Member of Parliament to jail for what was said in debate in the legislature.
The NSICOP Act changes all of that. It forbids the disclosure of anything "that a department is taking measures to protect." This is incredibly broad and done based on the discretion of the prime minister and cabinet.
There can be no Parliamentary freedom of speech in a system that delegates to the prime minister and cabinet any role in monitoring legislative debate. We already know from reporting that NSICOP has been used to designate politically embarrassing facts as matters of national security through the sweeping powers of the Act, where they become shrouded in secrecy. For example, an incident where a supporter of the Khalistani separatist movement was invited by Canada to a state dinner in India was swept into the black hole of NSICOP. The Ukrainian Nazi who was invited to the House of Commons, was also looked into by NSICOP. These are not all truly national security issues. Rather, they are politically embarrassing matters of public interest. By putting these matters into NSICOP the prime minister can shield these embarrassing facts from public view, and Parliamentarians briefed on them may be silenced under threat of criminal sanction. On the other hand, a Parliamentarian who is not briefed but still finds out about these embarrassing matters can speak about them without risking up to 14 years in prison.
Parliament has proven itself capable of protecting sensitive information in debate without the need for any threat of criminal sanction, as demonstrated by the 150 years of parliamentary history that precedes the enactment of this law. Over this time period, Parliament has debated countless sensitive issues, issues surrounding both world wars, nuclear threats arising from the Cold War, the rise of cybersecurity attacks, and increasing foreign interference in domestic elections, all without catastrophic disclosure and without the need for threat of criminal sanction.
The law has been challenged by professor Ryan Alford of the Bora Laskin Faculty of Law. Alford succeeded in having these provisions of the NSICOP Act struck down at lower court. That decision was overturned at the Court of Appeal for Ontario, and the question is now going to the Supreme Court of Canada.
At its core, Alford’s case is about this change to the powers and privileges that Parliaments in Westminster systems have had for centuries, and the balance between security and liberty, which the NSICOP Act has thrown that balance out of whack. This is already having real world consequences - like this issue with the uncertainties related to Pierre’s clearance, and a leak about the contents of that intelligence to the media in the middle of an election campaign.
While from the outside this case might look like an esoteric academic issue, it’s anything but. The case involves foreign spies infiltrating our politics and political scandals getting called “national security” to save the Prime Minister from having to talk about them. The constitutionality of this law is an urgent matter. And we are seeing the consequences of the political trap that is the NSICOP Act play out in real time.