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The Commons: Never mind the fine print

“The fact of the matter is the government cannot break the law”


 

The Scene. “Mr. Speaker, I hope I speak for everyone in this House when I salute your historic decision made yesterday.”

At least four Conservatives clapped at this submission from the Liberal leader. Michael Ignatieff paused to let the Speaker receive the House’s thanks and then continued.

“I would like to ask the Prime Minister if he will fully comply with your ruling yesterday,” he said, “and will he now work with us in good faith to do what we first proposed five months ago, that is respect the authority of Parliament, deliver the documents, and provide Canadians with the truth that they deserve?”

Confronted with the ramifications of a Speaker’s ruling as to the very foundation of Canadian democracy, the Prime Minister stood and shrugged.

“Mr. Speaker, you have made a ruling,” he observed. “At the same time, as you know and I think was recognized, the fact is that the government has certain obligations that are established under statutes passed by this Parliament. We obviously want to proceed in a way that will respect both of those things, and of course we will be open to any reasonable suggestions to achieve those two objectives.”

A day after the Attorney General of Canada had to be lightly, but soundly, corrected on his understanding of the law of the land, the Prime Minister seemed here to arguably misunderstand Peter Milliken’s verdict.

For sure, the ruling was long and nuanced and rife with arcane reference. And no doubt, the Prime Minister does not generally see much use in nuance. (Perhaps he worries about seeming elitist.) But here, apparently, Mr. Ignatieff felt it necessary to enlighten his counterpart.

“Mr. Speaker, I still did not hear a clear answer to the question as to whether the government will comply with your ruling,” the Liberal said.

Conservatives across the way grumbled.

“My question is now about his understanding of that ruling,” Mr. Ignatieff continued. “Does the Prime Minister now understand that the ultimate decision to invoke national security to prevent the disclosure of documents rests with this House, with the elected representatives of the people, and not with the government?”

Over again to the Prime Minister. “Mr. Speaker, as I have said, we look forward to both complying with your ruling and with the legal obligations that have been established by statutes passed by this Parliament,” he said.

“Weasel words!” cried a Liberal.

“The fact of the matter is the government cannot break the law,” Mr. Harper continued, “it cannot order public servants to break the law, nor can it do anything that would unnecessarily jeopardize the safety of Canadian troops.”

Right. Except that Parliament would seem to be the law, that which determines what can and cannot be disclosed, that which is ultimately responsible for determining what would and would not jeopardize the safety of Canadian troops. As Mr. Milliken pointed out to the Justice Minister just the other day, quoting Bourinot in 1884, “it must be remembered that under all circumstances it is for the House to consider whether the reasons given for refusing the information are sufficient.”

If the Prime Minister wishes to debate this point with Mr. Bourinot, Beechwood Cemetery is a short eight-minute drive from Parliament Hill.

In the meantime, Mr. Harper had to deal with Gilles Duceppe, who presented an omnibus complaint that managed to reference document disclosure, access to abortion for women in the developing world, Rahim Jaffer, transparency, ideology and democratic accountability.

Mr. Harper stood and, taking one of these issues in isolation, countered that his government’s position on the health of mothers was in keeping with the expressed position of Parliament. Mind you, if the expressed will of the House were the Prime Minister’s standard, we’d presently be in the midst of a public inquiry into this country’s handling of Afghan detainees.

Mr. Duceppe’s voice only grew louder and his face only redder in response.

Shortly thereafter it was Jack Layton’s turn to test the Prime Minister’s constitutional understanding. The NDP leader first ventured that the Prime Minister was accountable to Parliament. The Prime Minister seemed to agree, though with use of the word “confidence.”

“Mr. Speaker, the Prime Minister’s interpretation of your ruling, exemplified here today in the House, is wrong,” Mr. Layton ventured with his second opportunity, next citing some of the Speaker’s carefully chosen words. “Is the Prime Minister saying to us today that he is going to use other laws of Parliament in order to hide the truth that you have said has to be brought forward?”

Once more to Mr. Harper. “Mr. Speaker, I said no such thing,” he said. “You have delivered a decision. Obviously, the government seeks to respect that decision. At the same time, it seeks to respect its obligations established by statute and passed by this Parliament. That is the position of the government. The leader of the NDP talks about confidence. Of course, the government’s position always depends on the confidence of the House.”

Now Mr. Layton was quite upset, wondering if the Prime Minister was threatening an election. The Prime Minister insisted he was not.

“The government seeks at all times to respect all of its obligations,” Mr. Harper continued. “To the extent that some of those obligations may be in conflict, there are reasonable ways to accommodate that and we are open to reasonable suggestions in that regard.”

If you can ignore how we have arrived at such a willingness to compromise, this might be considered an achievement of some sort.

The Stats. Helena Guergis, 10 questions. Afghanistan, eight questions. Maternal health, six questions. Securities regulation, government appointments, infrastructure, workplace safety and prisons, two questions each. The arctic, employment, political financing, health care, Omar Khadr and forestry, one question each.

John Baird, 10 answers. Stephen Harper, eight answers. Jim Abbott, six answers. Vic Toews, three answers. Jim Flaherty, Rob Nicholson, Diane Finley and Lisa Raitt, two answers each. Peter MacKay, Jean-Pierre Blackburn, Steven Fletcher, Leona Aglukkaq, Lawrence Cannon and Denis Lebel, one answer each.


 

The Commons: Never mind the fine print

  1. While laws are passed by parliament, meaning the Commons, Senate and Crown jointly, the demand for documents in this case is made by only one part of that Parliament – the Commons. While I don't dispute the Speaker's interpretation of the rights of the Commons, it is not clear that a simple demand by a Commons committee is sufficient to absolve anyone of the effects of breaking a law passed by Parliament itself. In other words one may have to obey the Commons but also, by doing so, break the law. That is the conundrum the parties can resolve, as the Speaker suggested, by compromise.

  2. I may also be talking nonsense here, not least from my American legal perch, but I seem to recall something to the effect that Parliamentary privilege is not constitutional but is co-equal to the constitution, something that was specifically in 1982. My thought, then, is that the exercise of Parliamentary privilege in ordering the government to provide documents trumps any statute that Harper might think protects him.

    Of course, I see how my own logic can turn parliament into a new Star Chamber, so I am very, very happy to be corrected.

  3. I don't think co-equal, because they don't have the right to violate the constitution.

  4. I don't think you're right, Mike. I am pretty sure that a demand by Parliament that is properly an exercise of Parliamentary privilege trumps any assertion that there's a law that gets in the way.

    • I definitely agree. Otherwise, the first majority in power would
      pass laws that would in effect curb the Commons' privileges.

      Come on guys, this ain't rocket science.
      Haven't we all aced our ConLaw course?

  5. Well said!

  6. Well, your reading seems to be roughly right as I understand it. I could have sworn that somewhere in all of this, I read Milliken confirming that parliamentary privilege bordered on absolute and that he only thing restraining it was the collective discretion of parliament.

  7. If only he could break a, well, like a set-date election law or something to show his support of his legal obligation and respect for the laws of the land as passed by Parliament.
    The spider spins a web that he cannot escape from. Either that or Harper's the most obtuse caterpillar to envelope himself since Burton's Alice in Wonderland…

  8. Harper has not changed one iota.

    He listens to no one or anything, ethics mean nothing, principals are disposable and democracy a inconvenience.

    He is a controller, intimidator, manipulator and without any empathy whatsoever or conscience. The professionals have a label for him.

  9. If things are forbidden because of national security concerns, parliament, NOT the executive, get to determine what should or should not be released to the public. hence: “it must be remembered that under all circumstances it is for the House to consider whether the reasons given for refusing the information are sufficient.”

    also I don't think Parliament can break the law… because it *is* the law. Unless parliament does something that can be constitutionally challenged, like a breach of the Charter of rights and Freedoms, and be taken to the supreme court.

    Also, commons committees have the full power of parliament behind them to compel witnesses, get information, and hold people in contempt…. that's why they have a proportional division of committee seats to reflect party proportions of the house.

  10. yeah… but actually the government can break the law… everytime the government violates someone's Charter Rights, for instance, they break the law.. or does he mean *will not* break the law?

  11. I will be interested in Andrew Coyne's take on all of this. It seems that the conservatives have been piled up with a lot of problems for the last 4 years climaxing with Speaker Milliken's ruling yesterday or is there still more drum rolls? The beauty of it is we really wanted them to suceed after the Liberal scandals and Gomery – it was a bad time for this country. So far the Conservatives have not done better.

  12. While you might not agree with the opposition's request for that information, it's illegal for the government to withhold the information from the House when they've asked for it. There are NO grounds for it (and what has just been posted isn't grounds, because the House trumps it, as it should). The speaker just said so. LORDY. I'm not saying this to bash the Conservatives, but… it's majority rules. That's how democracy works. I hope they find a compromise instead of look for excuses to entrench their position.

  13. Harper and his ministers are deliberately misinterpreting Milliken's ruling right to his face. These people are lower than low.

    Here is the hierarchy: (1) the Constitution, including the Charter; (2) Parliamentary privilege, which may override any law that Parliament has previously passed; (3) Canadian legislation, including the Canada Evidence Act, as enforced by the executive. So (1) trumps (2) which trumps (3).

    Within the ambit of the Constitution, Parliament is supreme, and at least some opposition members must be permitted to see all of the unredacted documents if a majority of the House, as the voice of the people, so decides. If Parliament wishes to take national security concerns into consideration, it has the discretion, but not the obligation, to do so.

    Harper must do as he's told in this matter. From a legal standpoint his hand is weak. But as we've all seen time and time again, he is unimpressed by the law, and may try to steamroll anyone who stands in his way.

  14. He obviously wasn't beaten enough as a child.

  15. From Spector in the Globe: the ScoC MUST accept any reference made to it by the Governor in Council – i.e., the GG acting on the advice of the PM.

    So, if the PM can force the SCoC to look at this, and they must, by statute, give it a hearing and consideration, then this detainee docs issue is going nowhere fast. Harper has a built-in months-long delay tactic and he's no doubt known it all along.

    Relevant section of the Supreme Court Act:

    References by Governor in Council

    Referring certain questions for opinion
    53. (1) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning
    (a) the interpretation of the Constitution Acts;
    (b) the constitutionality or interpretation of any federal or provincial legislation;
    (c) the appellate jurisdiction respecting educational matters, by the Constitution Act, 1867, or by any other Act or law vested in the Governor in Council; or
    (d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised.

    Other questions

    (2) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning any matter, whether or not in the opinion of the Court ejusdem generis with the enumerations contained in subsection (1), with reference to which the Governor in Council sees fit to submit any such question.

  16. That may be correct, but I'm not aware of any case where that has been established in a court. Could a civil servant, for example, face charges under the Official Secrets Act, for releasing information to the public via the Commons committee? (Setting aside the question of who would lay the charges). If that Act (or just the FIPA) doesn't specifically allow for exemptions via a demand by the Commons, would that be a valid defence in law? I don't think the Speaker's ruling addresses that issue – other than by recognizing that a responsible compromise will avoid the issue.

  17. I don't see how you get that from his response. It seemed to me to be a serious reply to the Speaker's ruling, as was Mr. Ignatieff's offer to work towards a compromise.

  18. But, of course, this is not "Parliament", but one House of Parliament. Legislation can't be changed by a resolution of only one House. So the conundrum remains. If legislation passed by all of Parliament makes it illegal (under FIPA for example) to release personal information about individuals on the public record, but the Commons, within it's power, requires it to be released, how do you reconcile the two? Not by simply ignoring the law, surely?

  19. Our system is becoming a joke. I should premise this by stating that I vote for the party who seems to bring my interests to the forefront, and I don't care if it is NDP, Lib, Con…. Now that I have stated this, when did we become a dictatorship? Harper runs the country like Stalin and believes he is only accountable to himself. Last time I looked he had the backing of about 32% of canadians not 65. I know he doesn't trust anyone including his own soldiers but it is time to start governing and build a concensus so we can move onto the real issues such as unemployment developing our economy etc…

  20. No. Parliamentary supremacy is fundamental constitutional principle. The Speaker did not rule that Parliament can compel the government to release any piece of information to the public, but that it is an absolute prerogative of Parliament – not the government – to determine what information can be released.

  21. Since we're considering Machiavellian moves, I'm sure you've realized that a majority of the House of Commons and the Senate (where Harper still has only a plurality) may repeal paragraph 53(1)(d) of the Supreme Court Act in fairly short order. Royal assent for such an enactment would be granted by the Governor General, not the Governor in Council.

    Why is it that Harper and his pip-squeak supporters (including that embarassment, Spector) always engage in games of brinkmanship? It's as if they know they can't win without finagling and intimidation. Canadian public life shouldn't have to be a never-ending constitutional law seminar – but that's what we get when one branch of government constantly challenges its own legal limits.

  22. Yes, the Commons (again, its the Commons, not Parliament that has made the demand) can require release of documents. That does not mean there is no conflict with the laws that make release of such information an offence. It may be possible that the Commons has the power to compel the government to break the law. That would be an unfortunate result – and one that can be avoided, as the Speaker suggested strongly both sides should attempt to do.

    As a practical matter, as well, the "unredacted" information may contain the names of those who have offered us help confidentially in Afghanistan. Public release of those names would sentence them to death. Surely the opposition realizes that is something that should be avoided if possible?

  23. As the people's house, the House of Commons has greater legitimacy in these matters. But each house has its own powers and does not need permission from the other house to act. Look it up – all of the citations you need are contained in Milliken's ruling.

  24. He has the backing of the House of Commons. So long as he retains that his government has the right to govern.

    It is the opposition it seems that is obsessed with matters like how Afghan prisoners are treated by their own government. The government is quite happy to deal with the economy, which, you may have noticed, is doing pretty well.

    • And what, exactly, is the government doing on the economy?

  25. Is this supposed to be unbiased reporting?

  26. I think Coyne nailed it: it's either pure pigheadedness or they have something truly awful to hide.

    Either way, I'm thinking that unless Iggy takes a bad compromise, Harper will go nuclear before he releases a paper clip.

  27. When did anybody say ANYTHING about releasing " personal information about individuals on the public record "?

    What did I miss ?

  28. I think you are correct. In fact there is no law possible, short of changing the constitution that can put anything higher than Parliamentary privilege in this respect. Not only that, it is not amenable to any court – as I'm sure Harper will discover if he puts it to the Supreme Court, what's the bet they refuse to take it? This was not a Committee asking for the documents, this was the majority of parliamentarians in the House that made the "order." And it was and is, an order. There is no getting out of this – the government does not break the law in responding to this, nor is it culpable of "ordering civil servants to break the law." This IS the highest law in the land – an order properly made by the lawmakers of the land. He is going to weasel out of it somehow …. I can see by many of these posts that many people STILL do not understand how this parliamentary democracy works. Sheesh!

  29. That is the nature of some of the redacted information. Names of soldiers involved in operations. Names of prisoners. Names of translators. Names of informants. Etc etc. Sensible people would agree that type of information should be kept out of the public record, especially given that we are fighting an enemy that resorts routinely to assassination and terrorism. If the opposition demands that all documents be placed on the record before the committee, and none of them may be redacted, then that is the type of information that will be released.

  30. He is not going to backdown and it is pigheadedness, am sure there have been some mistakes, after all it is war, but I can't see from the Liberal Government or Conservative Government any malice, slow responses, yeah, but no malice.

    And it will cost Iggy the most.

    • There doesn't need to be malice to be something awful to hide. Look at how many commentators around here are going, "Yeah, so them brown-skins got tortured.. we didn't do it, so who cares?"

      I could easily see several people within Harper's cabinet holding the same position — including Peter MacKay, etc. The problem is, who cares is the Hague, and unlike random forum users here, those MPs bear the responsibility for it, which can also include the punishment if the Conventions are violated. It wouldn't at all surprise me to see if once the issue started coming up and was serious they looked into it and went "Oh crap… but we didn't know.."

      So not malice, per se, but ignorance, apathy, and passive acceptance of cruelty.

  31. It has the power to demand the documents. That does not mean those who respond to that demand are not breaking the law. It may create an unfairness for which courts would be very reluctant to allow a conviction, but the conundrum remains. That is why the Speaker, sensibly, called on both the government and opposition to compromise and didn't simply demand the government table all documents willy nilly.

  32. By Wherry? Not in his blog.

  33. Because the leftist media assumes malice in everything Harper does, that there is zero substance to any of his positions (just various ways in which Harper tries to appear to have a position for nefarious goals),

    you won't find any genuine efforts actually consider the contra argument – that is, the safety of the troops, just may, may, trump a desperate opposition's desire to overcome its inherent shortcomings with a political gotcha moment.

  34. No, you miss the point.
    The Commons is supreme in its privileges, and it has the right to demand what it demands. It cannot unilaterally amend or suspend any other laws that have been passed by Parliament, which is what you suggest it is doing now. It is supreme within its own bounds – but if complying with that demand means a law is broken, then it is broken and those who commit the breach may be answerable (although it would be an interesting case to defend).

  35. I don't think the point is so much that the SCoC would support the Executive over the House, but that if they are obliged to consider the issue, then then we're into a delay of months, at least. That only benefits the government. If Harper can survive until the summer adjournment, then a dissolution prior the fall session is likely better for the Cons than going to an election now.

  36. I don't think you understood me. If it helps, imagine that within the text of each law, there is an invisible clause which says "unless trumped by Parliamentary privilege". I've already said that Parliamentary privilege itself may be trumped by the constitution, so this invisible clause could not contravene the constitution.

  37. Help me out here Bettie. Your quote of Harper is exactly the same as Wherry's quote of Harper. I'm staring at the words. I don't see the slightest difference. What are you on about?

  38. No, a reference is just an opinion. The SCoC cannot intervene to delay the force of the Speaker's decision or any motion of the Commons. At most, the government could ask for more time for such an opinion to be rendered, but I doubt anyone would see that as anything other than an obvious delay tactic. Conversely, the Court could simply respond that this is a matter for the discretion of the Speaker and the Commons, and so defer to the Speaker's ruling.

  39. "…although it would be an interesting case to defend."

    Only if you crave press time and futility.

  40. Once again, information released to a committee of Parliament is not information released to the public at large. The government's position is baseless.

  41. So what you're saying is that you don't trust the opposition to make that discretion, not that they don't have the right to see the documents? Or do I have you wrong? If I don't, then I will simply state that your opinion on the matter is totally irrelevant.

  42. Really, let's be practical. This is politics, not law school. If the SC Act requires a reference by the Governor in Council to be given a hearing and answer each question referred together with rationale for each decision, then the process would take months.

    This has nothing to do with the SCoC somehow deferring the Speaker's decision or subsequent House motions. This is politics. It's certainly possible that Harper could effectively freeze all House activity against the Executive by arguing "it's before the Court". As with all things political, the facts and legal technicalities matter less than whether Harper can get public and media support. Think back to the coalition "crisis".

    The Cons have proven – with some obvious exceptions – very adept at making simply "truthy" arguments to defeat opposition facts. Of course it's a delay tactic. But does the House dare act against the government waiting on a SCoC opinion and risk an election under those circumstances. Not bloody likely.

  43. I'm pretty sure it's both, as there is now a court case in the UK on the matter as it relates to the UK in Afghanistan that one of the lawyers stated has plenty of of relevant information that is applicable in Canada also.

  44. "safety of the troops" yeah sure. Harper drags that in every chance he gets. There is NO GOOD REASoN why a committee of all parties, duly sworn, cannot examine the documents. I suspect the problem is – the relevant documents have already been put where the sun don't shine. Call me cynical but realistic.

  45. Where's the conflict exactly? Mr. Harper asserts that there are conflicting legal imperatives, what are they?

    Can anyone point to any statute that forbids information being released to Parliament when it is specifically demanded?
    Anyone?

    Milliken has just categorically affirmed Parliament's authority in the matter. And Harper responds with such a weak, whiny, recalcitrance… : "Weeeellll, I Dunno…. we'll do what we can but… I dunno." It's like being served at the gas-bar by some half stoned, half ass-ed, sullen teenager with his hoodie and his headphones and his ill-mannered thickness.

    I don't understand why people accept such contemptuous bullsh*t from anyone. Cite the statute that's causing your concern Mr. Harper, or sit down and shut up until you can think of something at least a little bit smarter than that.

  46. Considering the headlines today, I would suggest that your scenario is unlikely. Exactly what would the reference be? What are the questions? From the filing of questions to the decision for the Secession Reference, almost two years passed. This is not a question of "facts" but of parliamentary privilege, i.e. power, and it really doesn't matter what Harper does to try to twist public opinion. Secrecy and the "culture of deceit" are not winning campaign themes.

  47. Serious question: when Harper refers to "legal obligations that have been established by statutes passed by this Parliament", what is he referring to?

  48. One thing that both sides are factoring into the equation is this: the Canadian people don't want an election. It's an elaborate game of chicken: whoever calls an election loses.

  49. "So far the Conservatives have not done better. "

    I would say they have done much worse. The only thing the Liberals did was carry out a plan to keep Québec in Canada and spent money on it, very little of which was abused. The bulk of the money was spent on legitimate programs (within the definition of the project). The uproar that ensued was akin to a man, after having sex with a beautiful woman, complains when he realizes he has to pay for it.

    The Conservatives on the other hand have perverted the process of Parliament by obfuscating/proroguing on any issue they felt threatened them, refused to accept any form of criticism, and they think they are right to do that. Moreover, they have allowed/enabled/permitted/acquiesced to/ordered (pick your favourite) criminal acts by the military when gauged by the law of the land and international instruments to which we are signators.

    Say what you will, the Liberals were choir boys compared to these jamokes.

  50. As Coyne notes in another post, 'Milliken quotes Erskine May to the effect that “both Houses retain the right to be sole judge of the lawfulness of their own proceedings, and to settle—or depart from—their own codes of procedure.”'

    Milliken made a distinction between what Parliament "ought" to compel the Government to do and what is "should" do … but there is no doubt that Parliament, duly convened, has the authority to compel the production of any persons or papers it seeks in exercising its duty to "hold the government to account".

    There is no conflict between the laws Parliament has passed and the power to compel … because Parliament alone may determine the bounds and propriety of its powers. Harper is arguing whether or not water is wet … and he's drowning.

  51. How about his fixed election date law? Or denouncing floor crossers (remember Emerson?)? Or the elected Senate (remember Fortier in cabinet in the first week)? Or how about the income trusts issue? When does it end? When does the Canadian public finally stand up and hold Mr. Harper to task for his blatant disregard for not only the principles of democracy, but his own explicitly stated principles?

    I sure hope I'm not the only one planning on making this government pay in the next election, and I surely hope the polls are wrong when they say that over 30% of the country support this abomination of a prime minister.

  52. This is how Mr. Harper replied to Mr. Ignatieff:____

    "Mr. Speaker, we look forward to both complying with your ruling and with the legal obligations that have been established by statutes passed by this Parliament. The fact of the matter is, the government cannot break the law, it cannot order public servants to break the law, nor can it do anything that would unnecessarily jeopardize the same of Canadian troops.”

    Compare this to what you, Mr. Wherry, said he said. You wanted him to sound cold and brusque and uncoopertive, and he did not at all.

  53. Good catch.

    Now instead of sounding "cold and brusque and uncoopertive", he sounds cold and brusque, uncoopertive, weasly and deceptive.

  54. iT'S

    It's his usual passive-aggressiveness that is so irritating.

  55. They never do want an election and Harper sure repeated it over and over and over and over again just so everyone believes it to be the truth.

  56. Well, if there is an agreement and a mechanism to ensure they are kept in camera, that should solve the problem shouldn't it? The question is, what assurances will the Opposition give that they will keep this information in camera? And what reasonable safeguards are they willing to accept to ensure national security is preserved?

  57. Not really. It would be an unprecedented issue – which is always of at least academic interest.

  58. Yes, if there was such a clause, or any court, anywhere in this country had ever read such a clause into legislation that would be a valid point. At the moment, apart from the opinion of the Speaker – which applies to the Commons, but nowhere else, that is not the law.

    It may be, of course, that if a case is taken on this, that the law will agree with you. It is by no means certain that it would. As I've said elsewhere, that is why the Speaker, wisely, advocated a compromise.

  59. I don't trust the opposition to keep matters in camera unless there are procedures in place to ensure the information will stay in camera – as in the CSIS oversight committee. As well, as in other jurisdictions there may be information that is by its nature too sensitive to release even to MPs – and as the Speaker suggested there are means by which the members can agree to have those matters adjudicated. In this case asking Justice Iacobucci to report to the committee rather than the government may be a reasonable response.

  60. It seems to be in their DNA.

  61. Well, among other matters, the Official Secrets Act, the National Defence Act and the Freedom of Information and Protection of Privacy Act. Those, and a number of other Acts restrict the government's ability to release certain types of information to those who are not authorized by the legislation to receive it.

    There is also the likelihood that documents from Afghanistan may identify indifiduals in that country who have been cooperating with our Forces. Release of that information will likely result in their deaths. To inject a note of realism to this otherwise arcane discussion.

  62. No, the Commons, or the Senate, can control their own procedures and they do, I agree, have the power to compel production of the documents they have requested. The fact that may then conflict with the language of laws they have passed earlier is not cured by the Speaker's ruling. It may still be a matter of the rights of the
    Commons forcing a breach of the law and, rather more importantly, the injury to individuals or the state that such a breach would cause.

    All of that, of course, can be avoided if the parties accept the sensible advice of the Speaker.

  63. Yet, the whole point of this exercise is that the Government refused a previous compromise, no?

    What is inherently wrong with the opposition that you don't trust their motives? What if the Conservatives were the opposition in this case?

  64. Not on your life… never is!! Wherry prides himself on being unfair.

  65. Laws that have to do with the governments duty to keep security issues a matter of secrecy of course.

  66. Why are you assuming that everything the Government is saying in regards to national security is in fact correct, and not an excuse simply to not be shown in bad light? For that matter, why are you questioning the oppositions motives in such a way as to presume they are out to destroy the state?

  67. Once again the Liberals and dips finesse their way into a corner! Idiots!

  68. Why assume the opposite? If the opposition is really concerned that Canadian soldiers, diplomats and politicians have abused Taliban prisoners then they can agree on reasonably steps to preserve those aspects of sensitive information that reasonably need to be protected.
    The reason I tend to assume this is not a real issue for the opposition, especially the Liberals, is that no one thinks the Afghan prison system even comes close to approximating what we want it to be, or that we had any real option but to do what we did in the circumstances – turn prisoners over to them while working with them to try to improve their capacity to administer justice.

  69. I wouldn't call the Bloc the "Loyal Opposition" (well, not since 1997 anyway). And in practice – have you ever met an MP? Do you really think that, in the absence of clear rules and agreements they could be trusted to keep their mouths shut over sensitive issues – even matters that are, in reality, those of life and death importance?

    There are means of protecting this type of information and sharing it with the appropriate parliamentarians. The Speaker gave examples of those mechanisms. There is an issue that has to be addressed by the opposition – not just a demand to be allowed to see everything and "trust us". That is the essence of the Speaker's ruling. You should read it if you haven't had an opportunity to do so yet. That is why he called for compromise from both sides – not surreder from the government.

  70. I don't think you understand the purpose of a *reference* case, which is a request for an *advisory* opinion by the Court, not a binding ruling. The Supreme Court cannot intervene and at most I expect it would defer to the Speaker's decision.

  71. The electorate is the hiring and firing authority for members in the House. This is a bad thing?

  72. "you won't find any genuine efforts actually consider the contra argument – that is, the safety of the troops, just may, may, trump a desperate opposition's desire to overcome its inherent shortcomings with a political gotcha moment. "

    Yet, even if the safety of the troops does not trump the rights of the House to know, it would still be wise for all members of the House to think about what is the aim here. What are we, as Canadians, ultimately expecting to come out of this research into detainee transfers. I believe it should be looked into, but to what ultimate effect? That would be a most valid question to aks …………………to begin with!

  73. I don't assume that they don't have some legitimate reasons, but all parties in power will try to limit information that could be damaging to themselves regardless. That is the nature of power, and of this exercise.

    Not all prisoners are guilty when captured or associated with the Taleban. Most of the Guantanamo prisoners are widely considered to be innocent.

    If this was only about reasonable compromise, this would have been dealt with already months ago.

    You may be right about not having many choices, however there are still consequences regardless and until we are prepared to face up to what we are doing/or not we are deluding ourselves and are not being transparent or accountable with our actions. That is why this is so important, and why the current government is being called out on this, especially in light of promises of accountability that were made in order to attain power.

  74. You're not reading correctly. It is not that the Commons is requiring the government to release any information publicly, but that it must be released to a committee of the Commons. The documents can be examined in camera and it will be at the discretion of that committee to release pertinent information publicly. Parliamentary privilege trumps assertion of the Royal Prerogative, and this is *absolute*.

  75. I see we're campaigning already.

  76. The way Mr Harper has it figured, the court of spun public opinion trumps the will of the House, and he`s perfectly willing to push all his chips into the center of the table to prove it. He won`t call the election, but he is daring the opposition to force one.
    I don`t think much of his position, or of him, but it is what it is.

    The way I see it, you either call his bet, or let him haul in the pot.

    • nicely put.

  77. I may disagree with the Blocs ultimate goals, but as MPs they are quite good in general. If the question of separation was ever settled, I'm sure that many of them could serve in cabinet positions and be quite competent in their roles.

    I agree that there should be rules, but not dictated by the Government. Besides the motion that he was ruling on, wasn't that the plan anyway? That is why the Speaker ruled in the way that he did.

    So it seems the point of contention here is trust, and who should specify the rules upon which to proceed. Lets hope the meetings go well. However, ultimately Parliament has the power in this, it's just that that hasn't been tested as much because we haven't had a minority for some time before 2004. I am confident that, if the Harper government wishes to resolve this amicably, the parties involved will come to a reasonable compromise.

  78. As JMG has pointed out, a reference to the Supreme Court would not stop a contempt motion from passing in the House, nor would it prevent government from falling. There is no mechanism to stop the House from exercising its own privileges while a reference is being considered by the Court.

    From a political standpoint, the risks are at least as great for the government as for the opposition.

  79. Glad to help out. Mr. Wherry does not have Mr. Harper saying, ""Mr. Speaker, we look forward to both complying with your ruling and with the legal obligations that have been established by statutes passed by this Parliament." Now does that not sound cooperative. Wherry has him replying to Ignatiff, "Mr. Speaker, you have made a ruling."

    I see a difference… don't you see a difference?

  80. Strangely. He actually can write decent articles. When he blogs, for some reason, he prides himself on coming across as a supercilious twit. I suppose he thinks it matches his photograph.

  81. Bravo bettie!

    I wonder too why sometimes direct quotations are used and at other times parts of a quotation. It gives a slight slant. The slant is very sublte, of course, but those subtle slants are the most dangerous ones: because very few people notice this slight slant by "hand", the direction of opinion gradually creeps in. It's setting a tone indeed, and the setting of tone should not be ignored so readily.

  82. Mike R, I offered the invisible clause as a useful heuristic for you, but you perversely insist on misinterpreting the law as uncertain and conflicted. Let me state it bluntly – if a majority of the House of Commons decides to publish all of the Afghan documents unredacted on a website for all to see, it has the legal right to do so. It may decide to shield the documents from public view for reasons of national security or for other political reasons, but it is not required to do so.

    Public servants, and the government itself, must follow the will of the House. and are not acting illegally when following instructions given to them by the House. The only caveat is that the House must be acting within the constitution.

  83. Okay, thanks.

    Do any of those laws mandate that members of Parliament are not authorized to receive these certain types of information? Even in secret? My guess is "no".

    These laws would mandate that secret information should not be released to the general public, but no one is asking for that.

  84. I appreciate the citation… but you really ought to have read it and quoted it a little more.

    This is what precedes your quotation:

    Section 43 of the Anti-terrorism Act replaced sections 37 and 38 of the Canada Evidence Act by sections 36.1 to 38.16 and section 44 added a schedule to the Act, set out at Schedule 2 to the Anti-terrorism Act itself.

    and this is what follows your quotation:

    The superior court hearing the objection to the production of information or, in other cases, the Federal Court determines whether the objection should be upheld in whole, in part or not at all. These provisions set out rights of appeal to the provincial court of appeal or the Federal Court of Appeal, and to the Supreme Court of Canada

    Meaning that – in this case – the government can object but Parliament as a whole will decide (as gottabesaid already said).

  85. Fortunately, Canada has a Governor-General that does not march, without at least thinking about things first, to the orders of the Prime Minister or I suspect Mr. Harper would already have prorogued Parliament again.

    Mr. Haper does not want to fight another election he knows that he will lose (at least in a minority sense). Those in the back rooms who control the CPC will not allow him the luxury of staying on as Leader if he loses his fourth election.

    http://viableopposition.blogspot.com/

  86. I think the ultimate question is whether or not the law as drafted clearly includes the right to withhold information from either house of parliament. In other words, that the law takes away a privilege.

  87. No, it is not a bad thing.
    It does bother me though, that matters of principle will be settled by polls.
    If there was polled support for this, the opposition would be demanding an election and Mr Harper would be backpedaling down some other dark alley.
    There are times when you step up, show some mettle and give it all you have. If the opposition are not willing to do that, then that's what we're dealing with.
    As a voter, what I see is a government that will dispute absolutely anything it does not like, and it would not surprise me one bit if this obstructs efforts to determine how the infrastructure billions were spent. Yes, I even think they'd try to undermine Sheila Fraser if they had to – just ask Peter Milliken.
    Say what you want about the Liberals, but the fact they initiated the Gomery Inquiry and took their lumps – far more accountability then you will ever see out of this lot.

  88. Over again to the Prime Minister. “Mr. Speaker, as I have said, we look forward to both complying with your ruling and with the legal obligations that have been established by statutes passed by this Parliament,” he said.

    That's what Wherry posted. Now it seems it's you who's misquoting Harper since you don't include the "as I have said" part.

  89. The question is, what assurances will the Opposition give that they will keep this information in camera?

    I guess the same assurances that Government ministers must give. I'm not sure where this nonsense about Opposition ministers comes from. Just as members of the governing party, they have been elected by the citizens of Canada to represent the citizens of Canada.

    Unless they are unable to pass security clearance requirements, I see no reason why Members of Parliament should be blocked because of their party affiliation.

  90. I think one of the privileges that parliament has is free speech and that this is given to witnesses appearing before committees. Here is an excerpt from their own procedure book:

    Witnesses appearing before committees enjoy the same freedom of speech and protection from arrest and molestation as do Members of Parliament.[618] At the committee's discretion, witnesses may be allowed to testify in camera when dealing with confidential matters of state or sensitive commercial or personal information.[619] Under special circumstances, witnesses have been permitted to appear anonymously or under a pseudonym.

    Tampering with a witness or in any way attempting to deter a witness from giving evidence may constitute a breach of parliamentary privilege. Similarly, any interference with or threats against witnesses who have already testified may be treated as a breach of privilege by the House."

    So it may be that this privilege protects thepublic servant when compelled to provide information. Any thoughts?

    Link to full text is here:http://www2.parl.gc.ca/procedure-book-livre/Document.aspx?sbdid=DC42FA65-ADAA-426C-8763-C9B4F52A1277&sbpid=A67ED1D4-3D3E-4A5D-BADA-BA619985669F&Language=E&Mode=1

  91. Why assume the opposite?

    Because its the Government. The Government has an obligation to be transparent and accountable.

    If the opposition is really concerned that Canadian soldiers, diplomats and politicians have abused Taliban prisoners then they can agree on reasonably steps to preserve those aspects of sensitive information that reasonably need to be protected.

    They have. The Liberal proposal, as I understand it, suggests an in camera Parliamentary committee. The problem is that the Government seems to think that these reasonable steps include not investigating any of it.

  92. Stalin references must to be Godwin-able.

  93. Chet,

    Why do you hate Canada?

  94. Possibly. Certainly it would apply to a civil service actually appearing before the committee. Does that protection also extend beyond the bounds of Parliament Hill? I'm not sure. Would a prosecution for release of confidential information fall within the ambit of a "threat against a witness?" An interesting point. The question remains as to how one balances, if there is a balance, between clear statutory language of laws enacted by Parliament as a whole, and the rights of members of Parliament. Perhaps a blanket statutory amendment would clarify matters.

    More to the point, of course, is the obligation of members to ensure that information they do receive is, as the procedure book states, subject to the appropriate levels of protection. I expect that once those appropriate levels are agreed to, the opposition will lose interest in the subject fairly quickly, as it will no longer lend itself to the type of grandstanding and crocodile tears that this particular committee has been indulging in.

  95. “Weasel words!” cried a Liberal.

  96. we have good goverment
    deport iffy iggy

  97. Government ministers are members of the Privy Council and, therefore. entitled to deal with confidential information (that's the Privy part). There have been instances where opposition members have been sworn in as Privy Coucillors to allow them access to such information. That is probably not necessary here, so long as the appropriate safeguards over the information can be agreed upon. But members of parliament do not, by their status simply as MPs, acquire any specific security clearance or assumption they can keep a secret(Fred Rose was, after all an MP).

  98. Except there's no legal precedent which says anything otherwise either, and giving it the "reasonable person" test falls invariably on the side you argue against.

    Or in other words, stop playing the pedant and be reasonable.

  99. But members of parliament do not, by their status simply as MPs, acquire any specific security clearance or assumption they can keep a secret(Fred Rose was, after all an MP).

    I intentionally separated the final sentence in my previous post so that readers wouldn't miss that I said:

    Unless they are unable to pass security clearance requirements,

    Before I said:

    I see no reason why Members of Parliament should be blocked because of their party affiliation.

  100. That is an interesting point, but I'm not aware of any precedent of statutory interpretation that deals with the issue. In any case, no one, now, questions the right of the Commons or Senate to enforce their own privileges. The issue (which may only be theoretical if the government and opposition behave reasonably) is whether the exercise of a privilege by the Commons would absolve anyone not a member of that body from the effects of breaching legislation enacted by Parliament as a whole. It may be, as some here have suggested, that there is an underlying exemption to all such legislation that would be read into them. I'm just not aware that any court anywhere has stated that to be the case.

  101. The first part of your statement is correct. The Commons committee could choose to demand any documents it wants and publish them if it wishes – no matter what the consequences. That is the effect of the Speaker's ruling and he is, I think, correct in his position.

    The second part of your statement, that anyone complying with those demands is not acting illegally is simply an assertion on your part. As I've said, there is no legal precedent of which I am aware that supports that conclusion. It requires a reading into legislation of some form of exemption from the clear terms of legislation passed by Parliament. Such a "reading in" has not, I think, been considered by any court in this country. I'd be interested in any precedent you could point to that had, in fact, reached the same conclusion you have asserted.

    I'm not saying, by the way, that you are necessarily wrong. It may be that is what the law is. I'm just saying the point is by no means settled.

  102. No, they shouldn't be blocked by reason of their party standing. An MP, for these purposes, is an MP. So long as reasonable steps are taken to ensure the secrecy of information that by its nature must remain secret, any MP who is willing ot abide by those measures should be entitled to see the information.

  103. "Being reasonable" would, to most people, including the Speaker, mean agreeing on a framework by which members of parliament can see the information they need, but ensuring their are processes in place to protect the privacy and security of individuals who may be named in the documents, and the security of the nation as a whole.

    I take it we are agreed there is no legal precedent to deal with the conflicting issues of Parliamentary privilege versus the plain language of statutes passed by Parliament itself. It seems most responsible people in Ottawa have now agreed to avoid further legal bickering and return to the substance of the issue.

  104. Well. so far. managing it better than any other member of the G-8.

  105. No, you're backsliding – you agreed above that Parliament's right to the documents is unconditional, and that taking into account national security is a matter of choice, not obligation. But it is 'reasonable' to interpret the law such that civil servants and members of the government who follow the House's order cannot be prosecuted or sued later for doing that.

    At this point, though, it is obvious that you don't care about the law or the authorities – you simply want to cavil because you support the government.

  106. Sorry, I forgot to state that I don't see the relevance of the Blocs ultimate goals as to whether they will hold discretion or not. Canadian Forces also include soldiers from Quebec. They would have to be ultimately completely idiotic to compromise soldiers that they would consider to part of Quebec.

  107. That is, unless Harper's in opposition. Then they want elections immediately.

  108. I'm not disputing the quality of many Bloc MPs, although by nature of their party's platform their loyalty in general is suspect. My reference to them not being the "Loyal Opposition" is simply a factual matter that they held that title from 1993 to 1997, and were then displaced by the Reform Party in that role. It is not a title that attaches to all opposition parties, only that of the Leader of Her Majesty's Loyal Opposition.

  109. Really? How? What are they doing?

    Are you to partisan to acknowledge that what this government is doing on the economy is precisely nothing? The stimulus package was forced on them by the opposition, not the government. The interest rate environment we find ourselves in that has allowed us to recover well was the position of Mark Carney, not the government.

    The strength of our banking institutions is due to a more risk adverse position in our banks, as well as actions taken by the Liberals several years ago in preventing large bank mergers. The only thing our government has done to "manage" our economy that they can truly claim as their own is cancelling a change they themselves put in place when they saw how it blew up in the US.

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