An undeniable win for Parliament -

An undeniable win for Parliament

The detainee papers ruling leaves the Tories no easy options

An undeniable win for parliament

Blair Gable/Reuters

Peter Milliken’s low-key way of speaking doesn’t automatically command attention. His stature, short and thickset, doesn’t make him an imposing physical presence when he rises to address MPs. But the Speaker of the House of Commons, who has done the job for longer than anyone in Canadian history, didn’t have any trouble holding the often raucous chamber’s rapt attention on the afternoon of April 27, when he read his landmark ruling in the clash between the House and the government’s executive branch, the Prime Minister and cabinet. The question: must the Conservative government turn over to an opposition-dominated House all the uncensored documents MPs demand to see as they probe the Afghan detainees controversy? Milliken was unequivocal—yes, it must.

But he granted Prime Minister Stephen Harper two weeks to hammer out a deal with the opposition parties on how to keep legitimate secrets from being made public when those documents are finally delivered. “Finding common ground will be difficult,” Milliken said, showing a mastery of understatement. (As if to signal just how difficult, he paused midway through reading his findings to wipe the sweat from his white-haired brow with the sleeve of his traditional black robe.) The problem is the corrosively partisan mood in the House these days, especially over anything to do with the war in Afghanistan. The government routinely accuses the opposition parties of lacking proper regard for Canadian troops in the field. And the Liberals, in particular, have taken to referring at every opportunity to what they’ve labelled the Conservatives’ “culture of deceit.”

So it’s against this backdrop of intensifying acrimony that all parties now have until May 11 to try to reach the accommodation that Milliken insists upon. The obvious way forward is for the Conservatives to turn over whatever uncensored documents MPs demand, after negotiating for the House committee on Afghanistan, which is investigating the detainee issue, to set in place procedures to make sure secrets stay secret. Milliken gently, but firmly, closed the door on the argument from the government that boils down to suspicion that MPs on the committee can’t be trusted not to leak. “There have been assertions that colleagues in the House are not sufficiently trustworthy to be given confidential information, even with appropriate safeguards in place,” he said. “I find such comments troubling.”

In fact, the opposition parties, especially the NDP, have been proposing for weeks that a mechanism be established to bind MPs to secrecy. The Tories weren’t willing to negotiate about it. In the wake of Milliken’s ruling, though, NDP

Leader Jack Layton repeated a pledge to accept just about any terms the government proposes. Asked if he was worried that opposition MPs might be left unable to publicly air politically explosive details about the government’s handling of the detainee file, Layton suggested he would be satisfied if only the committee’s conclusions could be made public—even if some damning evidence had to remain under wraps. “There’s bound to be a combination of information being available to the broad public,” Layton said, “and also MPs from all parties having a chance to see some of the more sensitive materials, in order to draw judgments about what’s really taken place.”

Veteran parliamentarians point to previous cases where MPs heard highly sensitive testimony under leak-proof conditions. Perhaps the most recent example was a subcommittee of the House justice committee that studied organized crime for a report issued in the fall of 2000. The subcommittee began by holding in-camera sessions to figure out how to tackle a subject that would require police and other witnesses to talk often about sensitive investigations.

They decided to guarantee that everything witnesses said in closed hearings would be kept confidential. MPs agreed not to make anything they heard public, even indirectly. The committee tabled recommendations, but disclosed little about how they arrived at them.

The detainee issue, though, is far more consequential. The government has been fighting allegations it did too little, too late about warnings that detainees turned over by Canadian troops fighting in Kandahar might be tortured in Afghan prisons. Diplomat Richard Colvin testified before a House committee last fall that all transferred detainees were likely tortured—turning the story from a nagging distraction for the Tories to a potentially devastating scandal.

Given the setback Milliken dealt their bid to contain the damage, it wasn’t surprising the government was cautious in responding to his ruling. Sent into the foyer of the House to react, Justice Minister Rob Nicholson told reporters the government would review it and “welcomed the possibility of a compromise.” Despite Milliken’s broad finding that MPs must be given all the documents they demand, Nicholson seemed to suggest the government would not abandon its claim that laws meant to protect national security take precedence over parliamentary privilege. “The government will not knowingly break the laws that were written and passed by Parliament,” he said. “Our government will not compromise Canada’s national security, nor will it jeopardize the lives of our men and women in uniform.”

Just how far the government might go to avoid turning over documents is hard to predict. Some Tory MPs said privately they would not be afraid to run an election triggered by a standoff over detainees. Conservative strategists would seek to frame the choice facing voters in terms of their determination to protect national security and defend the reputation of Canadian soldiers, against the opposition parties fretting over the mistreatment of Taliban insurgents handed over to Afghan authorities in Kandahar’s combat zone. As well, Conservatives know that even if the parliamentary impasse over detainees forced an election, other issues would arise during the campaign. They see a strengthening economy improving their chances, as the recession of 2009 recedes and Canadians generally feel more upbeat.

Still, recent experience might also give Liberals reason to hope that popular sentiment could swing their way. Early this year, what started out as an obscure debate over Harper’s decision to prorogue Parliament, suspending it for a few weeks, ignited a surprising popular backlash that temporarily drove down the governing Conservatives’ poll numbers and lifted Michael Ignatieff’s standing. If the Liberals could manage to cast the Afghan detainee deadlock as another case of Parliament being undermined, they might get a similar bounce. Ignatieff seemed more keen, though, to cut a deal to get a look at those documents. He predicted Milliken’s ruling would force the Tories to soften what has been, up to now, an uncompromising position. “The highest authority in our Parliament has said, ‘Sort it out,’ ” Ignatieff said.

“Once [Milliken] has ruled the way he has ruled, you bet a solution will be possible.”

Another potential tack open to the government is to ask the Supreme Court of Canada to wade in on the issue. The top court occasionally hears what are called reference cases, in which the government asks for its opinion on some important question about the Constitution, law, or the powers of Parliament or provincial legislatures. In its most famous reference case, the court ruled in 1998 that Quebec could not unilaterally separate from Canada. But McGill University law professor Evan Fox-Decent, an expert on how parliamentary privilege is balanced against the rule of law, said asking the court to reject Milliken’s sound reasoning would be at best a delaying tactic on the part of the government. “They’d lose,” Fox-Decent predicted. “The Speaker is applying a power the House has had for as long as Parliament has existed with any independence from the king.”

So Milliken’s ruling leaves the government no easy options. Simply negotiating with the other parties to hand over the documents is clearly unpalatable for the Conservatives—they have been resisting doing just that for several months.

The House passed its motion ordering that the documents be produced early last December. Harper didn’t try to defuse the issue until March, when he appointed former Supreme Court justice Frank Iacobucci to review the material and decide what should be released. The opposition deemed Iacobucci nothing more than the government’s lawyer on the case, and didn’t back off from their demands. Now, the issue is cast in stark terms that cut to the heart of Canadian democracy—maintaining the historic balance between the rights of Parliament and the responsibilities of the government. As Milliken warned, “an unbroken record of some 140 years of collaboration and accommodation” stands in danger of being “shattered.”


An undeniable win for Parliament

  1. Whoopee – The MP's (Moron Parliamentarians won – but won what?
    Is that why we elect these guys – to win a PP contest with the Prime Minister? Is this why we pay them high wages and fat pensions? To win obscure menaingless baattles in question period? Which affect not one real Canadian? Really? A few enemies trying to blow our soldiers apart with cowardly road side bombs got tortured – HEY? Did they? If they did – I say GOOD!

    Maybe we (the tax Payers) shoild write them a job desceription – like concentrate on doing somethinfg for us – instead of these silly I win/you lose games that you play for big bucks(our tax bucks)
    Before helping yourself at the parliamentarian pork lunch counter! pork

    • There appears to be a mis-understanding on the importance of Parliament. It is the foundation of our democracy, and if the Prime Minister or any other can override the will of Parliament, we no longer have a democracy. Let us recall in the last federal election, the majority of voters did not vote for Harper. But everyone voted for somebody in Parliament. Let Parliament have its say. Let the majority of Members of Parliament do the job they see fit that will keep Canada as a nation of free and just people.

  2. The government would automatically lose if they went to the Supreme Court? Really?

    Let's recall the recent Khadar case. The SC specifically noted that his Charter rights had been violated and that the government should act.

    But the SC refused to force the government to act. Why? Because it deferred to the Crown's prerogative powers in matters of national security and defence.

    The SC may well find that the House has a right to demand the documents. But it may not force the government to do so. If it's recent decisions are any indication, this Court may show greater deference to the Crown's powers than the Speaker did.

  3. I see they are drinking lots of Red Bull in the PMO, this morning.

  4. What part of you moonshine still are you sucking on? You are one of those Conservative Reform rednecks that your taxes singlehandedly pay for everything. Pal, we all pay taxes. That's also why democracy is a pretty good idea. Question Period is 30 minutes out of the day. Furthermore, if you don't like this country of ours and it's Parliamentary Democracy…work to change it…not destroy…but if you don't have the inclination…leave Canada…go…go…get out…go live in China or some other country..where you would be thrown in jail talking your crap…a matter of fact…if you were thrown into a Canadian jail…for a day or two…and end up being somebody's girlfriend…then we see how tough you are…

  5. This the frustrating aspect of the Harper government and how our judicial and parliamentary elements allow Harper such leeway in the spirit of a just and democratic approach to differences…and yet the Harper government only continues to display contempt and a malicious siege mentally to bully all and anything into their own favor.

  6. Harper doesn't accept compromise. We can expect him to speak of compromise while dragging this out until deadline, and past it if he can arrange it. All his actions indicate that he doesn't want these documents exposed – at least not before the next election where it would certainly affect their chances.

    He knows if he does force the opposition into a non-confidence vote and subsequent election (before any potential scandal is confirmed) – and he gets his holy grail majority government – he can effectively and literally bury this issue in another shipping container like the Afghan detainee transfer records. They may never see the light of day for 70 years, just like Stalin's recently exposed records.

  7. The Chief of the Defense Staff General W. J. Natynczyk, when asked by the media if he was concerned with MPs poring over redacted documents, shrugged and said emphatically "no".

    This is something I can't fully get my head around. Perhaps someone with military experience could elaborate. Given that the documents are a few years old, hypothetically, what possibly could be contained in them that could "compromise Canada's national security, [or] jeopardize the lives of our men and women in uniform."?

    Details of past operations? (Dated?) Details of how the past captives were treated? (Wouldn't the enemy already know?) Details of informants? (I could see that point if they were still around or had family in the area) Details of intelligence gathering techniques? (I could see that point if it was something exceptional beyond what is normally understood as common practice).

    Anyone got a more complete list?

  8. I don't think it would necessarily endanger current operations. The issue is that if sensitive information in those documents began to leak, Canada's allies, notably the US and UK, might stop sharing intelligence with their Canadian counterparts as a result. That might then lead to the CF not having access (or struggling to get access) to information that could be useful in the field in the future.

  9. I doubt Mr. Harper will risk an election at this time. He knows if he does not win a majority there will be calls for him to resign as leader. He'll hang on to power as long as he possibly can or until he is certain he will win a majority.

  10. If that was a real concern, wouldn't the General have raised it? Surely, the Americans wouldn't have been silent on the matter up to this date.

  11. My sense is that the CDS truly feels that the documents will show that the CF acted responsibly, or at least in line with the directives they were getting from the government.

    And it isn't clear from his comments if he would be happy to have they out in the open or reviewed by MPs who have been sworn to secrecy.

    Let's not forget that this CDS has been known to speak quickly without realizing precisely what the implications of his comments are (ex: when he appeared to say that he was taking his orders from the House of Commons rather than the Defence Minister).

  12. Actually the big deal was international affairs, the Charter would still apply regarding security and defence.

    You're probably right that the court wouldn't decide the issue and if it did it probably wouldn't rule in favour of Harper. But that means parliament wins.

  13. Is John Gedes serious?

    He finds it a "surprising backlash" that Canadian citizens took to the streets to protest an autocratic mini-Bonaparte's PM's decision to shut the doors of our Parliamentary Democracy to save his dictatorial and phenomenally unCanadian ambitions?

    No kidding! I would have thunk it "a predictable Canadian response" to go to the streets by the thousands and try to voice our opinion as CANADIAN CITIZENS to protect our endangered Democratic institutions under such a pitifully unCanadian regime!

  14. Does Harper ever wonder whether he is leading the wrong country?

    Zimbabwe would be far more appropriate for a man of his stature to lead….

  15. What are you a constitutional lawyer? You don't know shit.

  16. Even assuming this fear is legitimate (of which I am not convinced), it is no grounds at all to not investigate the matter.

    If other countries aren't willing to live up to their committments,w e shouldn't be joining them in battle. There's credible testimony that a massive flub occurred with prisoner transfer, it is in every countries interest to get to the bottom of it. Everybody should be co-operating tout-de-bloody-suite.

    We needed to get to the bottom of this in 2009. Quit with the delay!

    • The Brits are having some sort of Inquiry on the exact same subject.. I haven't heard that their goivernment is
      refusing to release documents.

  17. I agree. But I personally think an independent inquiry would be the better way to go, since it would address these intelligence sharing concerns and take a bit of the political jockeying out of the process.

  18. I thought we mainly paid them to insert a bee firmly in your bonnet. Mission Accomplished and money well spent.

    Ohh, and the side effect is ensuring that the only Federal representatives we elect have more power than the appointed executive branch… something about maintaining the appearance of having a democracy…

  19. No, the Speaker's ruling was explicit: they can demand the documents and the government must comply with no exceptions including for national security reasons.

    What he also said was that it was reasonable and understandable for the government to want to keep information secret where it thinks there is a national security issue. And for that reason, the House should try harder to find a way to comply with the legitimate House order to produce unredacted documents while also protecting security. The Speaker pointed out that there are a number of ways to accomplish this, it's been done before and the opposition has suggested a number of fine processes already.

    But if something can't be worked out in two weeks and the government still refuses to give up the documents, then the fundamental principle of our democracy must be allowed to operate and the contempt motion will go forward.

  20. Actually, even if that is also a legitimate concern, it is not the one Harper uses to defend his defiance of Parliament.

    He attacks the other side for jeopardizing the safety of our troops, of caring more about the Taliban than our troops, of putting lives at risk, of "national security".

    Which is all the more weak for the fact that these documents are dated, relate to captured prisoners and our combat troops are on their way out of Afghanistan.

  21. He's had lots of time to think through this issue. He knows full well that MPs have been given security clearance many many times to review national security issues.

    I suspect he knows the cloud that Harper puts on our troops by going to such extreme lengths to defy the MPCC and Parliament by keeping these documents secret, and wants to clear the air for the sake of the morale and reputation of our troops.

    I suspect he thinks or knows that the documents will show Canadian troops acted honourably and as directed and did their job, while it was the brass and the politicians who look bad.

  22. Based on the current polls, it far less risky for Harper to force a vote than for the Libs. Libs will cave, unfortunately.

  23. The Speaker represents the House only. The Supreme Court is the highest court in the land. It has the jurisdiction to rule on constitutional matters. He only speaks to matters of procedure and parliamentary precedent. If the Court could be convinced that this is a constitutional question, their ruling would trump his. Whether the Court would accept that is it a constitutional question is another matter.

  24. Whether Harper justified his actions with this rationale is immaterial. It's a concern that has to be addressed.

    And, in fact, whenever the government makes reference to the Evidence Act, they're implicitly pointing to their obligations to protect sensitive information. So, yes, the government has implicitly invoked that justification.

  25. I think you'll find that if that's the case, governments will in short order stop releasing any and all documents. You know, national security.

  26. Precisely. An independant, public inquiry is the only way to go if we really want to get to the truth.

    Any House, committee or similar effort will be easily stymied by the government even if they initially agree to it. Proroguation or dissolution would shut the work down entirely. The gov. would remain in control of "finding" docs and the pace of providing them to the review group.

    Although an inquiry could technically be shut down by the government there would be a real political price to pay. Little or no price to behind the scenes gaming a doc. review committee.

  27. MPs who were made Privy Councilors have been given clearance in the past, yes. But it's not a routine thing.

    Also, if they are sworn to secrecy, they may not be able to use the information they have in public, even to criticize or keep the government to account.

    But I agree that those who are most likely to look bad aren't the troops, but rather Paul Martin, Bill Graham, Rick Hillier, General Gauthier, Stephen Harper, Gordon O'Connor, and Peter McKay. Not to mention the DMs of defence, foreign affairs, and a few people at PCO.

  28. They are basically even in the polls. And both are very low.

    Iggy likely can't win government, but it is even less likely that Harper will grow his number of seats. So they are not competing for the same thing. Iggy increases his seat count but doesn't get government? He lives for another day. Harper wins government but doesn't increase his seat count? He's probably gone and the Conservatives still have to deal with the detainee issue.

    Plus, the fact that support for Liberals and Conservatives both has become more concentrated – eg, of Harper's 31% nationally, more of it comes from Alberta and places he already won than in 2008 while the Liberals have lost support in Alberta – helps the Liberals not the Conservatives.

    Harper would be a fool to force an election on this issue as he has threatened. Iggy would be a fool to cave out of fear of an election on this issue.

  29. My question to you is: how on earth do you get to post such a long comment?

    Whenever I try, in my longwinded way, to put more than a few paragraphs together, it says my comment is too long!!

  30. Yeah, I have to agree here. Today's Tories may not like this ruling, but the supremacy of Parliament is the kind thing the old Reform Party was all about. I disagreed with Preston manning on, well, almost everything, but his views on Parliament, MPs and the role of our legislature vis a vis the executive were decidedly NOT the kind of stuff we're getting from the Tories these days.

    Of course, Manning was up against the supposedly dictatorial Jean Chretien. I suppose it's not entirely shocking that a party might do a 180 the moment it's THEIR GUY undermining Parliament and centralizing power in the executive branch.

  31. there's no way the court would rule in favor of the government… they probably would refuse to even hear the case in the first place. The reason is because the government's argument is really bad. It might be convincing in a communications spin war, but closely examined… it's garbage and incoherent.

  32. I too am not so sure it's accurate to say the government would lose at the SCoC. I don't think the SCoC would even agree to take the reference.

    You want us to overrule the Parliament of Canada on a matter of Parliamentary privilege??? Not bloody likely.

    It's true that in the Khadr case, the Supreme Court indicated that they did not believe that THEY, the judiciary, should be telling the government what to do on certain matters. PARLIAMENT telling the government what to do is something else entirely. The Supreme Court is indeed the highest court in the land, but they're still below Parliament.

  33. There is no constitutional question. The House has sole and ultimate authority over its own operation.

  34. Yeah, the main problem with this "constitutional" argument (and it's a pretty big problem, as it essentially leads to your argument being moot) is that while the Supreme Court is indeed the highest court in the land, constitutionally they're still below Parliament.

    I don't think the government would have a snowball's chance of getting a favourable reference from the Court. It's only a(nother) delaying tactic if they try. In fact, I think the government's biggest concern should be whether it would even delay anything. I could easily see the Court writing a one page response in about five minutes, or even refusing to take the reference at all.

  35. Damn. The only question I can't answer! ;)

  36. Exactly. Iggy wins by not losing. He doesn't need to win this election to save his tenure. An election would likely increase the Liberal seat count.

  37. You're neglecting the Organized Crime committee of the early part of the last decade.

  38. There is a technique that used to work…maybe it still does…do you want it?

  39. Show some respect. They're our elected representatives, and they all (or the vast majority) work very hard on behalf of their constituents.

    You're not a customer or a client of the state. You're a citizen. While taxpayers of course should be respected, as should their money, you aren't God. Parliamentarians shouldn't be trying to kiss your ass, but should be trying to act in the public interest. (by the way people like you, who think 'the customer is always right', make working in the service industry horrible)

    There are places that have small government, poor infrastructure, and don't provide much in terms of public services. It's called the Third World. Go there and have fun living without sidewalks, jerk.

  40. "The Crown's powers"??

    So you're saying that Stephen Harper is actually the King?

  41. Can't release the Auditor General's report because the sensitive information involved could harm the economy and bring about national security risks

  42. Well – I guess the thing to wonder then is – What does Manning think of this whole thing? Has he at all spoken about this? Have his views changed now that someone from the West is in power?

  43. Great point. Hadn't thought of that.

  44. Agreed. This is the largest problem with partisan politics.
    For some people, it is akin to supporting their favourite sports team.
    Thus, they yell anything and everything to denounce their opponents.
    Ronald Marshall – all you have proven is your limited capacity for understanding complex issues.

  45. It's a closely guarded secret, Ted.

  46. "Of course, Manning was up against the supposedly dictatorial Jean Chretien. I suppose it's not entirely shocking that a party might do a 180 the moment it's THEIR GUY undermining Parliament and centralizing power in the executive branch."

    This is exactly the point that I was making to LynnTO on the thread. If the Reform Party is so adamant about the importance of Parliamentary supremacy, why the silence? No OpEd from Manning on the subject. Not a peep from any of them.

  47. Like a lot of things that seem to excite our parliamentariens and the press gallery this doesn't seem to be too well thought out. The following questions might be helpful, the answers would be even better.
    Would the readers of the redacted material now be bound by the National Security Act? Would they be facing sanctions if they disclose it in public? If it turns into a withch hunt against the military rank and file will anyone in the public be pleased? What action can be taken, do we give the Afgan government another slap on the wrist? Do we build and manage prisoner of war camps? Do we turn suspected terrorist loose so as not to offend members of the oposition?

    This is very exciting for the opposition and the media, but does anyone have a thought as to where this will lead. We can be certain that if there was some horrendous problem we would know all about it from Al Jazeera.

  48. Parliamentary privilege is a constitutional question, and the SCC's posture toward it has historically been very deferential (eg, in NB Broadcasting [1993] the Court ruled that the Speaker had authority to prohibit media coverage of legislative debate, despite the fact that the Speaker's order violated the media outlet's constitutional right to freedom of expression). Parl privilege insulates the Speaker and the House from judicial review so long as the kind of power exercised is necessary for the House to perform one of its constitutional functions. In this case the function is holding government to account, and a well-established necessary means of doing so is full disclosure of public docs. For the Court to rule in favour of the govt it would first have to piece parliamentary privilege, which is unlikely, and second determine that the govt can dictate to the House which materials the House can see to hold the govt to account. It is close to inconceivable that the Court would so rule.

  49. The Crown is the formal executive, the Cabinet is the political executive. So, no, Harper is not the King, but the Crown acts on the advice of his government. For those of you who want to know a thing of two about how the Canadian government operates, you may want to read David E. Smith's The Invisible Crown or perhaps read up on responsible government.

    Anyhow, there is a constitutional question here, because the Crown has prerogative powers over matters of national security and defence. Those powers can be overridden by Parliament, yes. But Parliament is composed of the Commons, the Senate, and the Crown-in-Parliament, not simply the Commons. As well, as the Interpretation Act makes clear, the Crown can only be bound by explicit statue. Technically, then, there is still a constitutional question because the government can question whether the Commons can, by itself, overrule the Crown's prerogatives.

    And I disagree that Parliament is above the SCC. Since the adoption of the Charter, they've been placed on an awkward but relatively equal footing, with the SCC being granted the power to settle constitutional questions. As noted in section 32 of the Charter:

    1) This Charter applies

    (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

    (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

    Parliament still has the notwithstanding clause, but that applies to statutes and not the relative powers of the three branches of government.

  50. I would speculate that the current government is throwing up the national security flag because these documents would not only implicate the Government of Canada but also our NATO allies (US & UK). This should be seriously considered before we demand too much information be released. Its all well and good to hold our government to account but we may find ourselves outside looking in if we eggface our allies.

  51. Oh, and the Charter makes clear that the SCC has the authority to settle constitutional questions pertaining the Constitution Act of 1867, as well as the unwritten aspects of our constitution, which is where the Crown's prerogatives are found.

  52. We will have an election this year, probably in the summer, because the PM ( and quite possibly the country as well) cannot afford to have some of those documents read by those he can't control, let alone released to the general public. It should be fairly obvious by now that the reason the Government is fighting to prevent the handover of the documents is that some of them contain details which could form the basis of an indictment before the International Criminal Court on charges of violation of the Geneva Convention s on torture. This would not be an indictment against soldiers in the field but rather against Cabinet Ministers and senior military officers. Even if the charges could not be sustained, the headlines and the opprobrium directed at Canada and the Conservative government would have a lasting negative impact.

    Harper's only hope is to force an election and to achieve a result at least the same as he currently enjoys. It's a hell of a gamble but it is his only chance to avoid those documents seeing the light of day..

  53. I find it absolutely deplorable that the opposition party leaders are acting like little bratty kids on a playground, 'I want that toy! No, you can't have it. It's mine.' Much of the debate is pretty much on this level. They have zilch concern for truth or what's best for Canada. All they care about is making some political hay! Shame on them! Why don't they let the government get on with governing and addressing things like the economy, addressing the challenges facing aboriginals and how to be a positive force on the world stage? Good grief, stop the bickering, boys and get back to work. Allan

    • "addressing things like the economy, addressing the challenges facing aboriginals and how to be a positive force on the world stage"

      If you read the foreign press, you will find that Harper is regarded as a despot. Other democracies are watching him and are not impressed. We have scant evidence that the cons will deal with their $56 billion dollar mess (Ah yes, we had a surplus before they came to power). And as for aboriginals – Harper is doing nothing and never will except the usual window dressing he works at. Harper is so busy smearing and hiding, and managing his incompetant ministers (or dishonest?) he has no time for anything else. Let him run on his track record (of not accomplishing anything worthwhile for this country.

  54. Oh oh, sorry Ted. Looks like the brotherhood doesn't want to give up the secret decoder ring/technique as easily as I will. What to do…..;-)

  55. This is a misunderstanding of how courts, parliament and the executive are structured, and the concept of justiciability.

    Think of it this way: parliament has the final say on the law, the court has the final say on the current interpretation of the existing law. Parliament can always change the law if it is unhappy with that interpretation. This is also true of the constitution itself, but the constitution is much harder to change.

    Recall also that the constitution is itself written law. When something is unconstitutional, the court is finding that a law or action conflicts with another, higher law agreed to and passed by parliament – the constitution.

    And the big problem here for the gov't is that the court will only say whether parliament can order documents, not whether it was a good idea to do so. And it has been clear even before Milliken ruled that parliament clearly does.

  56. It is TOTALLY inconceivable that the Court would rule so. If it's up to the government of the day what Parliament gets to see and what they don't in fulfilling their role in holding the government to account then we no longer have responsible government.

    If the government of the day can dictate to Parliament and not the other way around, then we're in serious trouble.

  57. Mr. Geddes sites the 2000 justice sub-committee on organized crime as an example of a multi=party group where there was an agreement to keep secret the testimony of some witnesses.
    The problem with this comparison is that organized crime was not a political issue and the opposition of 2000 did not lose their credibility by the constant crying wolf about every little tidbit they could dig up about the gov`t.
    I think the Liberal`s biggest problem is a loss of credibility and trust because of their wacko whining the past 4 years. and I don`t mean a loss of credibility with the Gov`t, or the Speaker, or the Judge……..I mean, with the people. They`ve cried wolf several times too many and we would expect them to do it again if they thought they would hurt the reputation of the gov`t. That temptation would override any sense of national security they might have.

  58. Another one for me, is people who complains about Government but never votes!

  59. So, What do lefties do when they are losing a discussion. They leave the subject and attack the character of their opponent.
    The left wing seems to justify this action through a combination of arrogance, mistaken elitism, and intolerance.
    That seems to be true whether it`s Gordon Brown gossiping about the character of one of his own or some of the lefties here when they realize their argument makes no sense.

    • 'They leave the subject and attack the character of their opponent', says common man. And he says it with a straight face.

    • Good god what crap – Gordon Brown is a "lefty" now?

  60. The Charter can bind a Parliament, for certain, and the Supreme Court would be the arbiter in those cases. Parliament can't enact a law that violates the constitution and have it be upheld (without the use of the notwithstanding clause of course, which can only be used in certain instances). However, Parliamentary privilege and the Parliament's constitutional role in holding the government to account are well beyond the reach of the SCoC. The Supreme Court of Canada ruling that the government can withhold anything from Parliament would be tantamount to crippling Parliament's ability to hold the government to account.

    You're correct that the Supreme Court can occasionally say to the Parliament "You did that wrong, and you have to follow the Constitution". HOWEVER, Parliament's prerogatives and privileges, and especially their fundamental role of holding the government to account, is itself part of the constitution. The SCoC's role is to keep the other branches in line with the constitution, and I can't imagine you'll find a constitutional scholar anywhere that will argue that Parliament's prerogative to summon people and documents in the process of their work of holding the government to account is anything less than absolute and unconditional, as was pointed out in the Speaker's ruling. One does not need to argue about whether or not Parliament can "overrule the Crown's prerogatives" because Parliament's prerogatives supersede the Crown's prerogatives constitutionally in this case. Nothing has to be "done" to make that so, it simply is so.

    I don't see why this is so complicated for some people. The last time someone argued that the Crown's prerogatives trumped Parliament's and not the other way around, Parliament literally chopped off his head.

    I'm a bit of a monarchist myself, so perhaps I can be persuaded that we should return to the day's when the Crown's prerogatives took precedence over Parliament's, if for no other reason than the romance of it, but I doubt you'll find a lot of Canadians who'll go along.

  61. "organized crime was not a political issue"

    Good lord you are ignorant. It was a pretty hot-button issue at the time.

  62. Stephen Harper will not fight another election on this issue. Polls show that at best, he'll be handed another minority government and Mr. Harper is no fool. If he fights and is returned with a minority, he'll have lost his 4th election and those who support the CPC financially will most likely back away because it will become apparent that they just can't win complete control with Mr. Harper at the helm. Without grassroots support, the Party will not be able to fight another election which could be sooner rather than later if there is another minority.

    When Mr. Harper leaves, the CPC has the difficult issue of finding a new leader. With his very strong control over his caucus, he has prevented any heir-apparent from stepping forward. He well knows that in the case of the Liberals, they have at least 2 viable and credible candidates waiting in the wings to inherit the keys to the Liberal kingdom from Mr. Ignatieff.

    As unpalatable as it will be to Mr. Harper, he will be forced kicking and screaming into some sort of compromise on the issue of these documents. He will regard it as a personal loss but will try to mitigate it by keeping the documents internal to the House or by having Mr. Iacobucci reassigned to work for Parliament rather than government.

    The Conservative

  63. Stephen Harper will not fight another election on this issue. Polls show that at best, he'll be handed another minority government and Mr. Harper is no fool. If he fights and is returned with a minority, he'll have lost his 4th election and those who support the CPC financially will most likely back away because it will become apparent that they just can't win complete control with Mr. Harper at the helm. Without grassroots support, the Party will not be able to fight another election which could be sooner rather than later if there is another minority.

    When Mr. Harper leaves, the CPC has the difficult issue of finding a new leader. With his very strong control over his caucus, he has prevented any heir-apparent from stepping forward. He well knows that in the case of the Liberals, they have at least 2 viable and credible candidates waiting in the wings to inherit the keys to the Liberal kingdom from Mr. Ignatieff.

    As unpalatable as it will be to Mr. Harper, he will be forced kicking and screaming into some sort of compromise on the issue of these documents. He will regard it as a personal loss but will try to mitigate it by keeping the documents internal to the House or by having Mr. Iacobucci reassigned to work for Parliament rather than government.

    The Conservative

  64. I'm confident that Parliament could find members of the government in contempt for failing to produce the documents in a timely manner.

  65. Just to add for those who continue to insist that the undeniable is deniable, here's a long quote from Coyne's article on the issue:

    Before Tuesday's historic ruling by the Speaker of the Commons in the matter of the Afghan detainee documents, there was much speculation he would come up with some sort of classic fudge of the kind so beloved of this country's political class, one that would allow all sides to claim victory and do little else. You know: Parliament is right in principle, but the government is right in practice. Parliament has the right to demand the documents, and the government has the obligation to . . . treat their concerns seriously. Can't we all just get along?

    There were some attempts afterward to cast it in this light, but let there be no mistake: this was not a compromise. It was balanced, it was judicious, it was fair to all sides, but it was unequivocal: Parliament's right “to send for persons, papers and records,” Speaker Peter Milliken ruled, is absolute and unconditional. There are no limits on it, and the government has no constitutional option other than to comply with Parliament's will in such a matter, as expressed in the resolution passed by the Commons on Dec. 10. To accept the contrary notion, that the government may decide by and for itself which documents Parliament may see, and which it may not, “would completely undermine the role of parliamentarians in holding the government to account.” (emphasis added).

  66. See below comment about character attacks……..It was a pre-emptive strike against the likes of you.
    Organized crime was not politicial in the sense that the opp. parties were not spending month after month repeatedly demanding the release of securitty documents attempting to embarass the gov`t about the actions of Canadians at war.
    There is absolutely no comparison between the responsible opp. of 2000 and the wacko goings-on of the Libs the past 4 years.

  67. The first commenter on this post expresses his fatigue for gotcha partisan game playing,

    and gets hammered in negative ticks.

    This blog is 100% gotcha partisanship, and nothing but. Around here things are "undeniable,' conservatives are obviously guided by malice – there is no other side. No practical side.

    Just the purported high ideals of whatever ginned up issue of the day brings us the gotcha. Take the wafer issue – it wasn't just about a wafer, it was so much more. Prorogue – the 105th time it was done, was so much more, it was about the fabric of our government itself. Aghan detainee treatment? How dare you focus on yours and your family's well being, when the very fabric of the Western world hangs in the balance….(after the Liberals are out of power that is…before then…well it's a shrug).

  68. Back to my point above, everything Coyne wrote is accurate. But so what. Unless the Libs and the NDP have the democratic and political balls to force compliance, the "absolute and unconditional" Speaker's ruling won't mean a thing, because it won't accomplish anything of substance.

  69. I guess the question is: Are the Conservatives in a better position to fight an election and improve their chances now than they were in 2008? Are the Liberals?And those are easy questions. No and yes.

    The Conservatives had a bright big easy target – Green Shift – and an opponent incapable of explaining it, who was not well liked or well supported in his own party or the country and led a party deeply in debt with an OLO that was a mess against a huge war well-funded war machine and a press supporting the gov't.

    Now? The Liberals are debt free and have saved up money. The press has partially turned on the Tories. They have another 2 years of difficult baggage to shake off. They would start off not setting the agenda since the dominant issues now would be detainees, Jaffer, etc. They just "re-calibrated" so they would have to explain to Canadians why they want to force an election with no new ideas or vision.

    And the temperment of Canadians right now is, generally, disgruntled. Not angry but on the verge of.

  70. Either everyone's messing with you Ted, or I've somehow accidentally figured out the secret without realizing it. I've been going off on pretty long tirades about all of this, and I haven't ever seen a "your comment is too long" warning.

  71. Fortunately, one of the few places where you will find the lefties in majority is on this Blog.
    Also, I`ve found that if you tell them that you like to receive negative thumbs, then they will stop sending them ………………so predictable.

  72. If memory serves the ruling acknowledged both the Crown's foreign policy and security prerogatives, but you might be right. Either way, the Court has shown itself fairly deferential to the prerogative. And both the foreign affairs and national security powers are prerogatives of the Crown. If the Court was deferential towards one, it may be deferential towards the other.

  73. I disagree with your characterization of Ronald as a Conservative Reform redneck.

    The Reform Party would have been celebrating this victory of Parliament over the unilateral authority of the PM.

    Even under Stephen Harper's pre-2006 Conservative Party, conservatives were calling for and promising in their election platform a stronger Parliament, stronger power to MPs, less centralized power in the PM, stronger committees, etc.

    This is not about detainees or about torture. This is about a fundamental part of democracy.

    I don't know if the Liberals won or the Conservatives lost here.

    I do, however, know for certain that Parliamentary democracy won this week.

  74. But substance doesn`t matter in their little correct world. It`s all about the means….the end is inconsequential.

  75. What is the constitutional question here?

    Even Harper has never raised one. He just speaks vaguely and weasily about "laws" he must comply with.

  76. Whatever you think of the issue, it is not a typical Canadian response to go to the streets. What country have you been living in. We are world famous for bending over and taking whatever the government of the day wants to do to us.

  77. Not all parts of the constitution are written. Many are unwritten, including many which affect how the executive and legislative branches interrelate.

    In addition, there are laws, such as common and prerogative, which are not passed by parliament, but are still applicable.

    Unfortunately, you're leaving out the federalism factor here, too, which further elevates the role of the Courts, because there is no single sovereign parliament in the Canadian system.

  78. Ok, so let me clear something up here. Stephen Harper is Conservative Reform party. He was high ranking and respected in the Reform party and by Preston Manning. He was the Reform Party's Chief Policy Officer in 1988 and in 2002, he succeeded Stockwell Day as leader of the Canadian Alliance which was the new incarnation of the Reform Party.

    The Conservatives and Stephen Harper were the ones who Miliken ruled against (they are the ones who lost). They were the ones who were looking to NOT respect Parliamentary power even though, yes, they used to be the ones pushing for more Parliamentary power. Just goes to show you that their principals have never really governed their behaviour. As soon as they became ruling party, all those principals went out the window.

  79. I agree with you that Parliament is ultimately higher than the Crown alone. But, again, Parliament is tripartite, not simply the Commons. And the Crown's prerogatives are as important to the functioning of parliament as the House's. It simply isn't the case that the House alone can dispense with the Crown's prerogatives whenever it chooses. Were that the case, then the GG could not have called an election after the House passed the Fixed Election Dates Act.

  80. No, substance doesn't matter when the people you're arguing with are pretending that the supremacy of Parliament is not a substantive matter.

    OF COURSE Parliament's supremacy is ineffectual if Parliament neglects to enforce it, that doesn't make their powers any less absolute and unconditional. Parliamentarians are human beings. I have every confidence in the ability of the opposition to muck this up terribly and help the government do terrible damage to our democracy. However, there being doubt as to whether or not Parliament will be effective in exercising their absolute and unconditional authority in this matter is an ENTIRELY different thing from there being any doubt that Parliament has absolute and unconditional authority in this matter. My point all along has been that Parliament is supreme, not omnipotent and unerring. Just because the government cannot legitimately ignore the will of Parliament it does not necessarily follow that Parliament will be successful in enforcing its will on the government. If I get away from a police officer who's trying to catch me for committing a crime, my getting away does not prove that I did nothing wrong and that the officer did not have the authority to apprehend me. The good guys failing to win doesn't mean they were wrong, just ineffectual.

  81. Is it just me, or is this really a non issue. I personally don't care if these people were tortured in Afghanistan. It isn't our country, and we didn't do it. The groups that are there fighting supports people who go to other countries and blow up innocent civilians. Any effort on our part to 'detain' these people away from the Afghan authorities would have cost us more money. Our troops didn't have the money for uniforms and equipment to keep them alive – I would personally preferred that the 'detainees' were kept at the lowest possible cost, and that our troops had the money spent on things that they needed.

    I think that if Canadians truly understood the issue, it would soon become a non issue. If an election is called, and the 'detainee issue' was seen as between money spent on the 'detainees' or money for our troops, I wouldn't want to be on the side supporting the 'detainees'.



      Harper could have defended the way the detainees have been handled. Instead he's gone with the
      'we had no idea detainees might be tortured' (until the spring of 2007 and stonewalled any investigation. It's the behavior of a guilty person. It's way too late for the strategy you're suggesting.

    • It's just you and your ilk.

      I fervently hope that Canadians who don't give a damn about being responsible for torture and think it's a non-issue remain in the minority.

  82. you just about got a negative thumb……. :)

  83. I agree that it would be a tragedy for the opposition members to just let Parliament be treated this way without consequence, but I wouldn't say the ruling would have accomplished nothing in that case.

    At the very least it seems to have exposed that a lot of people in Canada think it's time that we all moved on from responsible government.

    I'm going to miss that Heritage Moment PSA with Queen Victoria in it.

  84. doesn't matter what side you are on the issue – this is the truth.

  85. The problem is, every time the current PM and executive chips away at something, it's one less thing the next PM has to chip away at. Mulroney laid the groundwork for Chretien who laid the groundwork for Harper. I guess I just naively believed it would take the Tories longer to start building on Chretien's foundation.

  86. At the root of those doubts we must put Harper and his government. Based on their track record in government, it appears to this Canadian they are far more likely to defy, defer, deceive and deny that to comply with the house demand for documents. Let's remember that it is the government's initial refusal to comply that raised the whole issue of legislature vs. executive. The real issue is potential detainee abuse not parliamentary tradition and democracy. Canadians deserve to know if our politicians, bureaucrats or military leaders were directly or indirectly complicit in detainee abuse or torture. Moreover it is the government that is effectively obstructing the military police investigation of same. One cannot reasonably expect this government to comply with the House's instruction.

    This is also why I don't see the Tories making a Supreme Court reference in another attempt at delay. Harper may not end up having a problem with the electorate for holding Parliament in contempt, but having to ignore Parliament AND the Supreme Court on the same issue, at the same time, may well be a risk the Tories aren't willing to take.

  87. I'm with you on this one…seems all quite ridiculous to me!

  88. Get the Speaker to rule in your favour. Then we'll talk.

  89. All fair comment. Making folks aware democracy is more than elections, is certainly worthwhile, I guess.

    My frustration is that this began as an quest for truth and accountability (okay, a maybe cheap political brickbat, but I can dream, can't I), has since been sent on a tangent about Parliamentary supremacy, and everyone (e.g., Mssrs., Coyne & Geddes) is now declaring victory on the latter whilst the former is getting lost in the celebration.

  90. Snap election, followed by Conservative attack ads against Ignatieff, attack ads about a CBC conspiracy, attack ads about Commies in the House and attack ads about Jack Layton's moustache.

    Then repeat after smart boy Stephen: "Canada's economic action plan…" "Canada's economic action plan…" "Canada's economic action plan…" "Canada's economic action plan…" "Canada's economic action plan…"

  91. Thank you SO MUCH for the citizen line.

    One of my pet peeves is people reducing the role of the citizenry to that of consumer or client. You're a CITIZEN of Canada not just a "taxpayer", and people ought to act like it.

  92. I know my hubby and I took to the streets and I'll certainly do so again if Harper tries to disallow the opposition from seeing these documents. I'm totally fed up with his secrecy and his hiding behind the troops.

  93. Fake name, eh? Or do you not know how to spell your own name, Allen/Allan? Don't pose as an Ordinary Canadian if you are not one.

    • Allen has zilch concern for truth or what's best for Canada. All Alan cares about is making some political hay! Shame on Allan!

  94. Both good points. But:

    1. Yes, many Cons would be displeased by yet another Harper minority. But would they really even think about dumping a sitting Con PM?

    2. Not sure Iggy's leadership is so secure that another Libs loss won't bring out the knives.

    3. Much easier to displace an oppo leader than a PM.

    4. Cons have proven far, far more adept at running campaigns lately.

    5. Spring or summer election unlikely. Harper will play for delay and if we have an election, it will be in the fall. Delay benefits the gov. as it inserts summer between the issue and the vote.

    6. Defending the troops, opposition coup, national security, all play far better than "culture of deceit" despite the latter having the virtue of being true.

  95. Interesting note: Stephen Harper and Jack Layton both became Privy Councilors under Liberal governments while they were in opposition.

  96. It amazes me how quickly conservatives have forgotten what it is like to be in opposition and what the point of the opposition is. In opposition the conservatives generally acted the same way the Liberals have for the past four years – trying their best at a difficult job to hold the government accountable when the government has all the power in its hands and doesn't want to give it up.

    How many times did Stephen Harper (OLO) remind PMPM that he was working with a minority and that he didn't have all the power?
    When Martin essentially unilaterally avoided a non-confidence motion wasn't the opposition screaming about our democracy coming to an end? Sound familiar?

    The way the Government and the opposition act is not primarily dictated by their partisan stripe, it is dictated by their position in the structure. When it comes to the excersice of power, all PMs, regardless of party, have more in common with each other than they do with Opposition Leaders.

  97. What if he had said yes? "Head of Canadian Military doesn't trust his civilian oversight!!" Generals in stable democracies don't say things like that. I would hope he believes it and trusts that our parliament is acting in good faith to advance us as a nation. But we should at least acknowlege that he had to of known that there is an expected answer to that question.

  98. Way to completely miss the point. This issue is the supremacy of parliament. It's a crucial issue and that's why Geddes has written about it at length.

  99. That's actually my biggest fear, though I don't know if it's realistic. If the opposition parties do NOT have the guts to force the government to comply, then does that set a precedent whereby future governments can refuse to comply with the will of parliament based upon the precedent of today? Is that how we lose our democracy and morph back into an elected monarchy? No bang, just a whimper.

  100. Tragically, this issue is not ridiculous, though the conservative supporters here harp(er) on asking how we can make so much fuss over the mistreatment of Taliban murderers. I despise the Taliban, but I cannot descend to their level. If we do not act within our highest principles in our treatment of them as prisoners, then we have allowed ourselves to become just like them and we have lost. They have won. They win if they turn us into the same kind of immoral animals that they have become in twisting their honourable religion into throwers-of-acid-at-children, or suicide bombers. I strongly suspect that our government does hold on to some very incriminating evidence that our leaders, political and possibly military, have been complicit in breaching the Geneva convention, and perhaps worse. This has now led to a serious challenge to one of the very foundational pieces of our system of parliamentary democracy. I fear that the damage to be done might be permanent and irreversible.

  101. I have not read ALL of today's posts, but I must say that this has been the most stimulating and educational series I have come across to date. The Lord himself has been very busy and very enlightening, as have most of the posters with remarkably little brainless crap. Thank you all. And thank you John Geddes.

  102. "I cannot descend to their level"

    And therein lies the problem with such grotesque moral equivalences. From the sounds of things, the Taliban got treatment about as bad as they would if they "signed up" for minor league hockey. How about "signing up" for the repercussions of being a terrorist?

    These people rape young boys, strap bombs onto downs syndrome kids and send them off to be blown up in markets, public execute gays, and systematically shut down women's involvement in society while flogging them for showing their calfs.

    To suggest a family sitting at the dinner table tonight being unconcerned about the rough world of terrrosm that they bargained for,

    is at the same "level" of strapping bombs to the most innocent,

    is abhorrent.

  103. …such a poor naive fool

  104. That's odd. I thought it was the CRAPs that did that.

  105. The calculus here is simple. If the government has nothing to hide, and they were only being stubborn because that's the way they operate, then they'll work out a deal with the Opposition. If they do have something to hide, they'll stall and cause problems.

    We'll know either way whether they do have something to hide based on how they behave over the next two weeks.

  106. There appears to be a mis-understanding on the importance of Parliament. It is the foundation of our democracy, and if the Prime Minister or any other can override the will of Parliament, we no longer have a democracy. Let us recall in the last federal election, the majority of voters did not vote for Harper. But everyone voted for somebody in Parliament. Let Parliament have its say. Let the majority of Members of Parliament do the job they see fit that will keep Canada as a nation of free and just people.

  107. OK, so far so good, although I remain skeptical. Knowing Harper, he's probably got something up his sleeve.____Though there is one point that has bothered me all along, that is many columnists and bloggers have recently written that had Harper not complied with the Speakers ruling, he could have been found in contempt of Parliament, which could have translated into a confidence motion followed by a spring election.____Now wait a minute, if that were the case, wouldn't we be right back to square one? Wouldn't that have been just like prorogation.

  108. cont'd…
    I just don't understand how that can even be an option. Contempt of Parliament is a "parliamentary thing", and must be resolved in the House of Commons period. The Prime Minister should not have the option of bringing it before the electorate nor before the Supreme Court. He cannot jam the wheels of accountability every time the going gets tough. He cannot hide under the GG's skirt every time he does not want to be held into account by the Opposition.____In short, since in theory it appears that an election could have been an option in this case, it simply demonstrates how there are major loopholes in our parliamentary system that need to be addressed.____Hypothetically speaking, the only option that would have made any sense, regarding Harper, had he not complied with Milliken's ruling, was that the latter would have been compelled to order that the documents be seized.