Here's an idea -

Here’s an idea


Sujit Choudhry, the esteemed University of Toronto professor of constitutional law, sends along the following. It likely would not wholly satisfy those who are intent on asserting the supremacy of Parliament, but there is plenty here worth considering, perhaps as something that might be part of a broader solution. SIRC is the Security Intelligence Review Committee, which you can read about here.

Anyway, without further ado, Mr. Choudhry’s idea.

The House of Commons should appoint a 5 member ad hoc panel of former members of SIRC, all of whom have the requisite expertise and security clearance to review the documents.  The list of 5 should be agreed to by all the political parties, and would be presented to the House of Commons as a slate, to be voted up or down on a motion.  The five would among them select a chair.  Preferably, the panel should be drawn from across the political spectrum.  A perusal of the list of former SIRC members suggests this should not be a problem.

The task of the ad hoc panel would be to review all the relevant documents related to the detainee affair.  The panel would screen the documents on the basis of national security, adapting the criteria set out in s. 38.06 of the Canada Evidence Act.

In short, the panel would (a) determine with respect to each document if disclosure would be injurious to international relations, national defence or national security – if disclosure did not raise this concern, then the document must be disclosed; (b) determine in cases where disclosure would raise these concerns, if those concerns are outweighed by the public interest in disclosure; (c) if the public interest in disclosure outweighs these concerns, release the document, or a part or summary of it, in order to minimize the injury to international relations or national defence or national security arising from disclosure.


Here’s an idea

  1. Or, it could just be party leaders and their immediate deputy.

  2. So, this process would dictate what documents would be released publicly, or which documents could be reviewed by MPs? I'd much rather an agreement where this panel would review documents and make recommendations as to whether the Afghanistan Committee should see these documents in camera, but the final decision lies with the Committee. The committee should also be able to overrule the panel's decision to keep a document secret.

    In this way, the panel would be advising the committee, but the power would not be delegated.

  3. Given the thousands of documents, would there not be better ways for the party leaders to spend their time? And wouldn't the job be done more efficiently and better by people who actually have some experience in these matters?

  4. It has the virtue of being unstoppable once set in motion — assuming the gov't didn't decide to play more silly bugger games and withhold docs like with the MPCC….oh, umm. Never mind. Bad idea.

    Really, is there any approach one can come up with that couldn't be thwarted at will by the government and thus become a simple scheme to delay until they are ready to force an election?

  5. Mr. Wherry, if you recall, Derek Lee's and Iggy's suggestions prior to the whole proroguing thing included references to SIRC as a model for a solution to Harper's intransigence.

    SIRC came up again when Frank Iacobucci was put forward by Harper as a filter. The ex judge wasn't accountable to Parliament, whereas SIRC is.

    SIRC's alumni are already made up of members of the Priv. Coun., nominated by the parties, so the good professor seems a bit redundant in his vetting suggestion.

    Even the comment boards here have seen mention of (my little hobby-horse) SIRC.

    In short, this is not a new idea. It may also be a day late and a dollar short. The SIRC model would have prevented this Parliamentary showdown back in December. Harper chose to press his luck and lost.

    Now, there's simply no reason why a MPs representing the parties (sworn in, etc.) cannot be the ones doing the vetting on behalf of the Committee. Indeed, the entire Committee can perform this function and report back to the House. no documents or testimony has to be released to the House as a whole, nor tot he public, to meet the requirements of the Speaker's ruling.

  6. However,Conservative Government incompetence security, is the number one priority of the PM, not Canadian national security, so don't look for quick acceptance of this very reasonable plan.

  7. Doesn't that sound pretty close, maybe not exactly, but pretty close to what they have a retired SCOC justice doing already?

  8. Oh I'm sure a couple of PhDs can manage. Or are you saying they're untrustworthy?

    Had Harper not stonewalled, there wouldn't be a backlog.

  9. I shall endeavour to carry on, notwithstanding NPoV's blistering critique of my comprehension skills. Or maybe I just didn't understand his comment. Anyhoo. From the existing terms of reference:

    (c) specifies that the Independent Adviser is to submit to the Minister of Justice and Attorney General of Canada a report, which shall:
    (i) make recommendations as to what information would be injurious to Canada's international relations, national defence or national security (“injurious information”) if it were disclosed;

  10. (ii) make recommendations as to whether any injurious information or a summary of it should be disclosed on the basis that the public interest in disclosure, including for the purpose of providing parliamentarians with Government information necessary to hold the Government to account on the matter of the transfer of Afghan detainees, outweighs the public interest in non-disclosure for the purpose of preventing injury to Canada's international relations, national defence or national security, after considering the form of and conditions to disclosure that are most likely to limit any injury to international relations, national defence or national security; and

  11. Why, it's almost like article (ii) actually inspired Professor Choudry's item (b). But there will no doubt be someone of good character and unquestioned reading comprehension to gracefully explain where I have, yet again, fallen down splat on my face.

  12. And…Judge Iaco' terms of review include reporting to Parliament/Canadians….:

    March 13, 2010
    Justice Minister Rob Nicholson announces full terms of review :

    ''..He (Judge Iaco') will prepare a report on his methodology and general findings for public release. ''

  13. "Sujit Choudhry, the esteemed University of Toronto professor of constitutional law"

    Yes, that's what Wheery would call a once-and-future Liberal Party employee/advisor. Choudry is just looking for another angle to get his boys back into power. Give it "esteemed prof.". No matter how many "academic" articles you and you faculty buddies publish comparing Harper to Robert Mugabe (that would be Lorne Sossin's thoughtful contribution) or whomever, you're not getting anyone elected. Go back to whatever hole your old patron Paul Martin is living in.

  14. All due respect to the professor, but this isn't just about what's written in law anymore. This sounds more like the approach of a professor when a student takes his essay back for a re-mark than the approach of a policy wonk when asked a question of national importance.

    It would appear the esteemed professor forgot about the part of the Speaker's ruling where he articulated his concern that the Government saw other MPs as somehow untrustworthy.

  15. Why precisely would this "not wholly satisfy those who are intent on asserting the supremacy of Parliament"? If Parliament determines that this will be the course of action, its staunchest defenders should be happy.

    This is exactly the sort of approach that the Opposition has collectively been requesting all along. Nobody has ever suggested that every document be posted on Aaron Wherry's blog. The question has always been who determines the process, not the process itself.

  16. Radically different, but then you've always displayed a complete lack of comprehnsion in your comments.

    so here goes:
    5 vs 1
    reports to Parliament not Gov't
    already have expertise in subject matter

  17. (iii) advise as to whether any document or information is subject to solicitor-client privilege or otherwise ought not to be disclosed for other reasons of public policy…

  18. What the professor said, but have the opposition parties prioritize what they want reviewed (you don't need a massive data dump all at once). Say, start with the Colvin memos. Give the Committee a few days – report and release documents – still redacted, semi-redacted , whatever.

    Then the opposition parties make the next request for specific documents (the size of the request determines the turnaround time). You don't necessarily need to have the full 10,000 or 100,000 pages reviewed, debated, and reported upon. Take them in manageable chunks – Work smart, MPs!

  19. How bout a joint Committee of CSIS employees and the current Afghanistan Committee. CSIS reads first. Then they draw straws and let one MP read the security risk lines. The rest are in the dark. By the end of the process the Afghanistan Committee will have read it all, but no one MP will know all literally, a group knowledge will direct decisions. Any leaks during the process and CSIS will know who did it.

  20. Preferably, the panel should be drawn from across the political spectrum.

    Ah see here's where we run into trouble… it has been well established that anyone who has not sworn fealty to His Magnificence, Lord King Stephen The North Star, Defender of the True North Strong And Free (to do what I tell you), is nothing more than a card-carrying Liberal-NDP-Bloc-Separatist-French-Troop-hating-Commie-Socialist-Terrorist, that may cause cancer, most definitely drinks Star Bucks, CBC watching, hippie who does not even deserve recognition as anything beyond a fringe special interest group.

    No the best bet is to just trust him. It's not like he's steered us wrong so far… well… except for complaining about all those pesky bank regulations (until the US crash), missing the recession completely, canceling a Liberal income tax cut just to re-introduce a lower tax cut later, ignoring the advice of every real economist and cutting the GST instead of an income tax cut (that would bring us back to the one Martin gave…), pitting province against province and calling it unity, making Canada an embarrassment on the world stage, breaking his own election law so that he could finally get his majority (and STILL didn't get it! Against DION! Combined with the lowest voter turnout in Canadian history!) and completely misunderstanding what "transparent and accountable" means (hint: it's what you've done for the past four years, completely reversed.)

    Sorry for the bitterness, but the fact that we are headed to the polls yet again, simply because Stephen has control issues is bothering me.