The ruling

by Aaron Wherry

Below, the full English text of Speaker Peter Milliken’s ruling, delivered in the House over the last hour.

Further coverage from the Canadian Press, GlobeCanwest, CBC and CTV.

The Justice Minister has just now breathlessly read a statement that includes the phrase, “We welcome the possibility of a compromise.” Official Liberal reaction is here. Derek Lee’s reaction is here. Official NDP reaction is here.

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I am now prepared to rule on the questions of privilege raised on March 18, 2010, by the hon. Member for Scarborough—Rouge River (Mr. Lee), the hon. Member for St. John’s East (Mr. Harris), and the hon. Member for Saint-Jean (Mr. Bachand) concerning the Order of the House of December 10, 2009, respecting the production of documents regarding Afghan detainees.

I would like to thank those three Members raising these issues.  I would also like to thank the hon. Minister of Justice and Attorney General (Mr. Nicholson), the hon. Parliamentary Secretary to the Government House Leader (Mr. Lukiwski), the hon. House Leader of the Official Opposition (Mr. Goodale), and the hon. Members for Toronto Centre (Mr. Rae), Joliette  (Mr. Paquette), Windsor—Tecumseh (Mr. Comartin), Yukon  (Mr. Bagnell), Toronto—Danforth (Mr. Layton), Outremont  (Mr. Mulcair), and Kootenay East (Mr. Abbott) for their interventions on this important matter on March 18, 25, and 31, and on April 1 and 12, 2010.

The facts that have led the House, and the Chair, to be seized of this case are the following:

 On February 10, 2009, the House recreated the Special Committee on the Canadian Mission in Afghanistan.  This committee conducted its business in the usual way and began, in the fall of that year, to seek information from the Government on the treatment of Afghan detainees.

 On November 27, 2009, the Committee reported to the House what it considered to be a breach of its privileges in relation to its inquiries and requests for documents.

 On December 10, 2009, the House adopted an Order for the production of documents regarding Afghan detainees.

 On December 30, 2009, the session in which this Order was adopted was prorogued.

 On March 3, 2010, when the present session began, the Special Committee was re-constituted and resumed its work.  Since Orders of the House for the production of documents survive prorogation, the House Order of December 10, 2009, remained in effect.

 On March 5, 2010, the Minister of Justice rose in the House to announce that the Government had appointed former Supreme Court Justice  Frank Iacobucci ―to undertake an independent, comprehensive and proper review of the documents at issue‖.  The Minister described Mr. Iacobucci’s mandate in relation to the Order of  December 10, 2009, specifying that the former justice would report to him.

  On March 16, 2010, the Leader of the Government in the House of Commons tabled the specific terms of reference for Mr. Iacobucci.

 On March 18, 2010, three Members raised questions of privilege related to the Order of December 10, 2009.  A number of other Members also contributed to the discussion.

 On March 25, 2010, and again on April 1 and 26, 2010, the Government tabled a large volume of documents regarding Afghan detainees ―without prejudice‖ to the procedural arguments relating to the Order of December 10, 2009. On March 25 and April 1, the Chair also heard interventions from Members.

 On March 31, 2010, the Government responded to the arguments made in relation to the questions of privilege raised on March 18, 2010.

 Last, on April 1, and again on April 12, 2010, the Chair heard arguments on the questions of privilege from several Members, took the matter under advisement and undertook to return to the House with a ruling.

Before addressing the arguments brought forward, I want to take this opportunity to remind Members of the role of the Chair when questions of privilege are raised.  House of Commons Procedure and Practice, Second Edition (O’Brien-Bosc), at page 141, states:

―Great importance is attached to matters involving privilege.  A Member wishing to raise a question of privilege in the House must first convince the Speaker that his or her concern is prima facie (on the first impression or at first glance) a question of privilege.  The function of the Speaker is limited to deciding whether the matter is of such a character as to entitle the Member who has raised the question to move a motion which will have priority over Orders of the Day; that is, in the Speaker’s opinion, there is a prima facie question of privilege.  If there is, the House must take the matter into immediate consideration.  Ultimately, it is the House which decides whether a breach of privilege or a contempt has been committed.‖

As Speaker, one of my principal duties is to safeguard the rights and privileges of Members and of the House.  In doing so, the Chair is always mindful of the established precedents, usages, traditions and practices of the House and of the role of the Chair in their ongoing evolution.  It is no exaggeration to say that it is a rare event for the Speaker to be seized of a matter as complex and as heavy with consequence as the matter before us now.

Because of the complexity of the issues that have been raised, and the large number of lengthy interventions made by hon. Members, I have taken the liberty of regrouping the issues thematically in order to address the arguments presented more effectively.

The Right of the House to Order the Production of Documents

The main and most important issue the Chair must address today concerns the right of the House to order the production of documents, including the nature of the right, questions related to the extent of the right, and the manner in which the right can or ought to be exercised.  All Members who have intervened on these matters of privilege have touched on these fundamental questions in one way or another. In addition, the Chair has been asked to determine whether or not the Order has been complied with, and if not, whether this constitutes, prima facie, a contempt of the House.

Intimidation of Witnesses

A second matter before the Chair is the contention – made primarily by the Member for Scarborough—Rouge River – that witnesses were intimidated by answers given in Question Period by the Minister of National Defence and that a letter written by an official from the Department of Justice was contemptuous of the House in setting out for potential witnesses a false basis for refusing to answer questions in a committee of this House.

The Form of the December 10 Order of the House

Arguments were also made in relation to a third theme, namely the form, clarity and procedural validity of the  December 10 Order of the House.  These issues arose when the Parliamentary Secretary to the Government House Leader contended on March 31, 2010, that the Order of December 10 was fatally flawed in that it seeks documents that he claims can only be obtained by way of an Address to the Governor General.  Related issues were brought to the Chair’s attention on the same day by the Minister of Justice, who stated, at page 1225 of the Debates:

―Mr. Speaker, as you will recall, the December order called for uncensored documents.  It listed eight different categories of documents to be produced.  The order did not specify exactly when such documents should be produced, who should produce them or to whom they should be produced.

The order made no reference to the confidential information being protected….‖

Accommodation and Trust

The fourth theme the Chair wishes to address concerns the issue of accommodation and trust which a number of Members on both sides of the House have raised.  Several Members have made reference to the need to safeguard confidential information that, in the words of the Minister of Justice, as found on page 7881 of the Debates of December 10, 2009: ― [could] if disclosed, compromise Canada’s security, national defence and international relations.‖  More significantly, a number of Members have indicated that they wish to find a way to accommodate the desire of the House for information while also accommodating the desire of the Government to protect sensitive information.

The Form of the December 10 Order of the House

The first arguments the Chair wishes to address are those related to the form, clarity and procedural validity of the December

10 Order.

The Minister of Justice has called into question the clarity of the Order.  On reading the Order, it is abundantly clear to the Chair that it is the Government that is expected to produce the documents demanded and that, in the absence of instructions to the contrary, the documents are to be tabled in the House in the usual manner.  In this sense the Minister and the Parliamentary Secretary are correct in asserting that no provision is made in the Order for confidential treatment of the material demanded.  The Chair will return to this aspect of the question later in this ruling.

As to when the material is to be tabled, the Order says very clearly ―forthwith‖.  House of Commons Procedure and Practice, Second Edition, at page 475 states:

―…if the House has adopted an Order for the production of a document, the Order should be complied with within a reasonable time.  However, the Speaker has no power to determine when documents should be tabled.‖

As to the procedural validity of the Order, as well as its form, the Chair wishes to draw the attention of the House to Bourinot’s Parliamentary Procedure and Practice in the Dominion of Canada, Fourth Edition, where it states at pages 245 to 246:

―Previous to the session of 1876, it was customary to move for all papers by address to the governor-general, but since that time the regular practice of the English houses has been followed.  It is now the usage to move for addresses only with respect to matters affecting imperial interests, the royal prerogative, or the governor-in-council.  On the other hand, it is the constitutional right of either house to ask for such information as it can directly obtain by its own order from any department or officer of the Government…[P]apers may be directly ordered when they relate to canals and railways, post-office, customs, militia, fisheries, dismissal of public officers, harbours and public works, and other matters under the immediate control and direction of the different departments of the Government. ‖

As this passage makes clear, an Order is used when seeking papers that fall under the ―immediate control and direction of the different departments of the Government‖.  As an example, in the case of the documents related to the Chief of the Defence Staff, referred to by the Parliamentary Secretary, it is simply not credible to claim that those documents are not under the control of the Government.

The Parliamentary Secretary has referred to certain rulings of my predecessors in making his arguments and has also provided additional material in support of his contention.  The Chair has examined these precedents – a ruling from 1959 by Mr. Speaker Michener and a ruling from 1982 by Madam Speaker Sauvé – but is not convinced that they directly support the particular circumstances faced by the House in this case.

A further point to be made on this issue has to do with the documents tabled ―without prejudice‖ so far by the Government in response to the Order of December 10.  The Chair wishes to point out that of the documents tabled, several appear to fall into the categories which the Parliamentary Secretary claims require an Address before they can be produced.  In addition, the fact that these documents have been tabled has been cited by the Government as a gesture of good faith on its part and an indication that it is complying, to the extent that it feels it can, with the Order of December 10.

Finally, as the Member for St. John’s East noted, in response to objections raised at the time debate was commencing on the original motion, a decision was rendered that the motion was in order.  Consequently, the House went on to debate and decide the matter: the House has expressed its will, and that is where the matter now stands.

I have considered the arguments put forward, and for the reasons stated above, the Chair concludes that it was procedurally acceptable for the House to use an Order and not an Address to require the production of these documents.

Intimidation of Witnesses

The Chair will turn now to the allegations related to witness intimidation.  The Member for Scarborough—Rouge River has contended that the comments made by the Minister of National Defence, in reply to a question during Oral Questions on December 1, 2009, amounted to intimidation. He argued that the Minister’s contention that the documents in question could be released to the Special Committee on the Canadian Mission in Afghanistan only under the provisions of the Canada Evidence Act, was wrong and misleading, obstructed the House, and intimidated witnesses, especially armed forces personnel and public servants, thereby lessening the likelihood of their compliance with House requests and orders.

The hon. Member for Scarborough—Rouge River also took exception to a December 9, 2009, letter to the Law Clerk and Parliamentary Counsel of the House from an Assistant Deputy Minister from the Department of Justice on the obligations of witnesses before committees, and on the obligation to provide documents ordered by committees.  He argued that the letter constituted a contempt of the House by setting out for witnesses a  false basis for refusing to provide disclosure to the House or its committees after being ordered to do so.  In particular, the Member for Scarborough—Rouge River stressed that if the contents of the letter were crafted with ministerial approval, it could constitute a conspiracy to undermine Parliament and the ability of the House to carry on its constitutional functions.

The Government responded that the remarks made by the Minister of National Defence were simply matters of debate and differences of opinion between Members.  Of the second complaint, the Government took the view that the letter from the Justice official constituted nothing more than an exchange of views between legal professionals and that it could not be construed as―an attempt to intimidate the Government witnesses‖.

The hon. Member for Scarborough—Rouge River had argued that the Minister’s reply constituted a slander of Parliament’s core powers to hold the Government to account and thus was a contempt.  However, particularly since this exchange between the Minister and the Member for Vancouver South occurred during Question Period, I find that I must agree with the Parliamentary Secretary’s characterization of this exchange as a matter of debate.  I have no need to remind the House that freedom of speech is one of our most cherished rights.  Although Members may disagree with the comments made by the Minister, I cannot find that the Minister’s words, in and of themselves, constitute witness intimidation, hence nor do they constitute prima facie a contempt of the House.

As for the Member for Scarborough—Rouge River’s other concern regarding the letter from the Assistant Deputy Minister, the procedural authorities are clear that interference with witnesses may constitute a contempt.  House of Commons Procedure and Practice, Second Edition, at page 1070, states:

―Tampering with a witness or in any way attempting to deter a witness from giving evidence may constitute a breach of parliamentary privilege.‖

It is reasonable to assume that a letter signed by an Assistant Deputy Minister, acting under the authority of the Minister of Justice, is an expression of the Government’s view on an issue, and given that its contents have been widely reported and circulated, the letter could leave the impression that public servants and Government officials cannot be protected by Parliament for their responses to questions at a parliamentary committee, when this is not the case.

Specifically, I would like to draw the attention of hon. Members to a section of the letter in question, which the Member for Scarborough—Rouge River tabled in the House on March 18, 2010, where the Assistant Deputy Minister lays out a view of the duties of public servants in relation to committees of the House.  The letter states:

―Of course, there may be instances where an Act of Parliament will not be interpreted to apply to the Houses of Parliament (or their committees).  However, that does not mean automatically that Government officials — who are agents of the executive, not the legislative branch — are absolved from respecting duties imposed by a statute enacted by Parliament, or by requirements of the common law, such as solicitor-client privilege or Crown privilege.  This is so even if a parliamentary committee, through the exercise of parliamentary privilege, may extend immunity to witnesses appearing before it.  A parliamentary committee cannot waive a legal duty imposed on Government officials.  To argue to the contrary would be inimical to the principles of the rule of law and parliamentary sovereignty.  A parliamentary committee is subordinate, not superior, to the legislative will of Parliament as expressed in its enactments.‖

It does concern me that the letter of the Assistant Deputy Minister could be interpreted as having a ―chilling effect‖ on public servants who are called to appear before parliamentary committees, as contended the Members for Scarborough—Rouge River and Toronto Centre.  This could be especially so if the view put forth in the letter formed the basis of a direction given by department heads to their employees who have been called to testify before parliamentary committees.

At the same time, it is critically important to remember in this regard that our practice already recognizes that public servants appearing as witnesses are placed in the peculiar position of having two duties.  As House of Commons Procedure and Practice, Second Edition, states at pages 1068 and 1069:

―Particular attention is paid to the questioning of public servants.  The obligation of a witness to answer all questions put by the committee must be balanced against the role that public servants play in providing confidential advice to their Ministers. …In addition, committees ordinarily accept the reasons that a public servant gives for declining to answer a specific question or series of questions which….may be perceived as a conflict with the witness’ responsibility to the Minister….‖

The solution for committees facing such situations is to seek answers from those who are ultimately accountable, namely, the Ministers themselves.

It has been argued that there may be a ―chilling effect‖, which could come dangerously close to impeding Members of committees in carrying out their duties.  However, I remind the House, that this letter was sent to our Law Clerk so, on balance, I would need to see the use made of this letter, in particular, whether it was ever presented to a person who was scheduled to testify before the Special Committee with the intent of limiting the person’s testimony.  As things stand, there does not appear to the Chair to be sufficient evidence for me to conclude that this letter constitutes a direct attempt to prevent or influence the testimony of any witness before a committee.

For these reasons I cannot find that there is a prima facie question of contempt on this point.

The Right of the House to Order the Production of Documents

I now turn to the questions of the House’s right to order the production of documents and the claim that the Government has failed to comply with the Order of the House.

The hon. Member for Kootenay East argues that, even if the documents were provided to the committee, the committee could not, given their sensitive nature, make use of them publicly. However, I cannot agree with his conclusion that this obviates the Government’s requirement to provide the documents ordered by the House.  To accept such a notion would completely undermine the importance of the role of parliamentarians in holding the Government to account.

Before us are issues that question the very foundations upon which our parliamentary system is built.  In a system of responsible government, the fundamental right of the House of Commons to hold the Government to account for its actions is an indisputable privilege and, in fact, an obligation.  Embedded in our Constitution, parliamentary law and even our Standing Orders, it is the source of our parliamentary system from which other processes and principles necessarily flow.  It is why that right is manifested in numerous procedures of the House: from the daily Question Period, to the detailed examination by committee of estimates, to reviews of the Accounts of Canada, to debate, amendment and votes on legislation.

As I noted on December 10, 2009, House of Commons Procedure and Practice, Second Edition, states at page 136:

―By virtue of the Preamble and section 18 of the Constitution Act, 1867, Parliament has the ability to institute its own inquiries, to require the attendance of witnesses and to order the production of documents, rights which are fundamental to its proper functioning.  These rights are as old as Parliament itself. ‖

And on pages 978 to 979:

―The Standing Orders do not delimit the power to order the production of papers and records.  The result is a broad, absolute power that on the surface appears to be without restriction.  There is no limit on the type of papers likely to be requested, the only prerequisite is that the papers exist – in hard copy or electronic format – and that they are located in Canada…. No statute or practice diminishes the fullness of the power rooted in the House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power.  The House has never set a limit on its power to order the production of papers and records.‖

Further, Bourinot`s Fourth Edition, states at page 70:

―The Senate and the House of Commons have the right, inherent in them as legislative bodies, to summon and compel the attendance of all persons, within the limits of their jurisdiction, as witnesses, and to order them to bring with them such papers and records as may be required for the purpose of an inquiry.‖

In the arguments presented, the Chair has heard this power described as ―unabridged‖, ―unconditional‖, ―unqualified‖,―absolute‖ and, furthermore, one which is limited only by the discretion of the House itself.  But this view is not shared by all and so it is a privilege whose limits have now been called into question.

The Government’s view is that such an unqualified right does not exist for either House of Parliament, or their committees.  The executive, the holder of the sensitive information sought by the House, has competing obligations.  On the one hand, it recognizes that there is an expectation of transparency so that government actions can be properly monitored to ensure that they respect the law and international agreements.  On the other hand, the Government contends that the protection of national security, national defence and international relations demands that some information remain secret and confidential, out of the reach of those obliged to scrutinize its actions and hold it to account.

In his March 31 intervention, the Minister of Justice quoted from the 1887 parliamentary treatise of Alpheus Todd to support the view that ―…a due regard to the interests of the State occasionally demand…that information sought for by members of the legislature should be withheld at the discretion and upon the responsibility of ministers.‖  The Minister also cited Bourinot in 1884 observing that the government may ―…feel constrained to refuse certain papers on the ground that their production would be … injurious to public interest.‖  Had he read a little further, he might have found the following statement by Bourinot at page 281:

―But 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.  The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional, and the reasons very cogent, when it cannot be at once laid before the houses.‖

As the Members for Saint-Jean and Joliette commented on March 25, 2010, Bourinot’s Second Edition notes that even in instances where a Minister refuses to provide documents that are requested, it is clear that it is still ultimately up to the House to determine whether grounds exist to withhold documents.

Bourinot, in referring to procedures for notices of motions for production of papers, wrote at pages 337 and 338:

―…there are frequent cases in which the ministers refuse information, especially at some delicate stage of an investigation or negotiation; and in such instances the house will always acquiesce when sufficient reasons are given for the refusal…But 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.‖

Joseph Maingot’s Parliamentary Privilege in Canada, Second Edition, also supports the need for Parliament to have a voice in these very matters when it states at page 190:

―The only limitations, which could only be self-imposed, would be that any inquiry should relate to a subject within the legislative competence of Parliament, particularly where witnesses and documents are required and the penal jurisdiction of Parliament is contemplated.  This dovetails with the right of each House of Parliament to summon and compel the attendance of all persons within the limits of their jurisdictions.‖

Similarly, in Erskine May, 23rd Edition, in a discussion of the exclusive cognizance of proceedings, at page 102, we find the following:

―…underlying the Bill of Rights [1689] is the privilege of both Houses to the exclusive cognizance of their own proceedings.  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.  This is equally the case where the House in question is dealing with a matter which is finally decided by its sole authority, such as an order or resolution, or whether (like a bill) it is the joint concern of both Houses.‖

In David McGee’s Parliamentary Practice in New Zealand, Second Edition, at page 621, he asserts:

―The Australian legislation [referring to the Parliamentary Privileges Act, 1987] in respect of article 9 of the Bill of Rights …may be taken to indicate the types of transactions falling within the term `proceedings of Parliament`.‖

He then goes on to state that such proceedings to which privilege attaches include  ―…the presentation of a document to a House or a committee…. ‖Odgers`Australian Senate Practice, 12th edition, at page 51, states clearly:

―Parliamentary privilege is not affected by provisions in statutes which prohibit in general terms the disclosure of categories of information…Statutory provisions of this type do not prevent the disclosure of information covered by the provisions to a House of the Parliament or to a parliamentary committee in the course of a parliamentary inquiry.  They … do not prevent committees seeking the information covered by such provisions or persons who have that information providing it to committees.‖

In light of these various authorities, the Chair must conclude that the House does indeed have the right to ask for the documents listed in the Order of December 10, 2009.

With regard to the extent of the right, the Chair would like to address the contention of the Minister of Justice, made on March 31, that the Order of the House of December 10 is a breach of the constitutional separation of powers between the executive and the legislature.  Having noted that the three branches of government must respect the legitimate sphere of activity of the others, the Minister argued that the Order of the House was tantamount to an unlawful extension of the House’s privileges.

This can only be true if one agrees with the notion that the House’s power to order the production of documents is not absolute.  The question would then be whether this interpretation subjugates the legislature to the executive.

It is the view of the Chair that accepting an unconditional authority of the executive to censor the information provided to Parliament would in fact jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts.  Furthermore, it risks diminishing the inherent privileges of the House and its Members, which have been earned and must be safeguarded.

As has been noted earlier, the procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents.  No exceptions are made for any category of Government documents, even those related to national security.  Therefore, the Chair must conclude that it is perfectly within the existing privileges of the House to order production of the documents in question.  Bearing in mind that the fundamental role of Parliament is to hold the Government to account, as the servant of the House, and the protector of its privileges, I cannot agree with the Government’s interpretation that ordering these documents transgresses the separation of powers, and interferes with the spheres of activity of the executive branch.

But what of the House’s responsibility regarding the manner in which this right can or ought to be exercised?  The authorities cited earlier all make reference to the long-standing practice whereby the House has accepted that not all documents demanded ought to be made available in cases where the Government asserts that this is impossible or inappropriate for reasons of national security, national defence or international relations.

O’Brien and Bosc, at page 979, states:

―…it may not be appropriate to insist on the production of papers and records in all cases.‖

The basis for this statement is a 1991 report by the Standing Committee on Privileges and Elections, which, as recorded on page 95 of the Journals of May 29, 1991, pointed out:

―The House of Commons recognizes that it should not require the production of documents in all cases; considerations of public policy, including national security, foreign relations, and so forth, enter into the decision as to when it is appropriate to order the production of such documents.‖

In his comments on this aspect of the matter before us, the Parliamentary Secretary to the Government House Leader referred to my ruling of June 8, 2006, where I stated that national security, when asserted by a Minister, was sufficient to set aside a requirement to table documents cited in debate.  The examples cited by the Parliamentary Secretary related strictly to documents that have been cited by a Minister in the absence of any other explicit expression of interest by the House in the said documents.

Having reviewed the June 8 ruling, it is clear to the Chair that there is a difference between the practice of the House which allows a Minister, on the sole basis of his or her judgment, to refrain from tabling a cited document for reasons of confidentiality and national security, and an Order, duly adopted by the House following notice and debate, requiring the tabling of documents.

Another important distinction between the Order adopted by the House on December 10, 2009, and the practice respecting Notices of Motions for the Production of Papers, referred to by the Member for St. John’s East on April 12 is that, with respect to such notices, there is an opportunity for a Minister or Parliamentary Secretary to indicate to the House that the notice is acceptable to the Government subject to certain reservations, such as confidentiality, or national security.

Thus, the House, prior to the adoption of the motion, is fully aware that some documents will not be produced if the motion is adopted.  If the House does not agree, the motion must either be transferred for debate, or be put immediately to the House without debate or amendment. Something similar happened on December 10, 2009.  Before the House voted on the motion that became an Order to produce documents, the Ministers of Justice, National Defence and Foreign Affairs all rose in the House to explain the reasons why the documents in question should not be made available.  This is in keeping with what Bourinot refers to as the Government’s responsibility to provide ―reasons very cogent‖ for not producing documents.  Under normal circumstances, reflecting on past history in the House, these assertions by the Government might well have been found to be acceptable by the House.  In the current circumstances however, the reasons given by the Government were not found to be sufficient.  The House debated the matter and voted to adopt an order for the production of documents, despite the request of the Government.

The reason for this, it seems, has to do with the issue of accommodation and trust.  On December 10, 2009, as found on page 7877 of the Debates, I stated that:

―It is unfortunate, if I may make this comment, that arrangements were not made in committee to settle this matter there, where these requests were made and where there might have been some agreement on which documents and which format would be tabled or made available to Members.  How they were to be produced or however it was to be done, I do not know, but obviously that has not happened.‖

Several Members have made the point that there are numerous ways that the documents in question could have been made available without divulging state secrets and acknowledged that all sides in the House needed to find a way to respect the privileges and rights of Members of Parliament to hold the Government to account, while at the same time protecting national security.

The Government, for its part, has sought to find a solution to the impasse.  It has appointed former Supreme Court Justice Frank Iacobucci and given him a mandate to examine the documents and to recommend to the Minister of Justice and Attorney General what could be safely disclosed to the House.

The Government has argued that in mandating this review by  Mr. Iacobucci, it was taking steps to comply with the Order consistent with its requirements to protect the security of Canada’s armed forces and Canada’s international obligations.

However, several Members have pointed out that Mr. Iacobucci’s appointment establishes a separate, parallel process outside of parliamentary oversight, and without  parliamentary involvement.  Furthermore, and in my view perhaps most significantly, Mr. Iacobucci reports to the Minister of Justice; his client is the Government.

The authorities I have cited are unanimous in the view of the House’s privilege to ask for the production of papers and many go on to explain that accommodations are made between those seeking information and those in possession of it to ensure that arrangements are made in the best interests of the public they both serve.  Certainly, from the submissions I have heard, it is evident to the Chair that all Members take seriously the sensitive nature of these documents and the need to protect the confidential information they contain.

The Chair must conclude that it is within the powers of the House of Commons to ask for the documents sought in the December 10 order it adopted.  Now, it seems to me, that the issue before us is this:  is it possible to put into place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain? In other words, is it possible for the two sides, working together in the best interest of the Canadians they serve, to devise a means where both their concerns are met?

Surely that is not too much to hope for.

The Member for Toronto Centre has made a suggestion, as recorded on page 615 of the Debates of March 18, 2010:

―What we believe can be done is not beyond the ability of the House.  It is done in many other parliaments.  Indeed, there are circumstances under which it has even been done in this House.  It is perfectly possible for unredacted documents to be seen by Members of Parliament who have been sworn in for the purpose of looking at those documents.‖

O’Brien and Bosc, at page 980, points to ways of seeking a compromise for Members to gain access to otherwise inaccessible material:

―Normally, this entails putting measures in place to ensure that the record is kept confidential while it is being consulted:

in camera review, limited and numbered copies, arrangements for disposing of or destroying the copies after the committee meeting, et cetera.‖

In some jurisdictions, such as the Legislative Council in the Australian State of New South Wales, and I would refer Members to New South Wales Legislative Council Practice, by Lovelock and Evans at page 481, mechanisms have been put in place, which satisfy the confidentiality concerns of the Government as well as those of the legislature.  Procedures provide for independent arbiters, recognized by both the executive and the legislature, to make determinations on what can be disclosed when a dispute arises over an order for the production of documents.

Finding common ground will be difficult.  There have been assertions that colleagues in the House are not sufficiently trustworthy to be given confidential information, even with appropriate security safeguards in place.  I find such comments troubling.  The insinuation that Members of Parliament cannot be trusted with the very information that they may well require to act on behalf of Canadians runs contrary to the inherent trust that Canadians have placed in their elected officials and which Members require to act in their various parliamentary capacities.

The issue of trust goes in the other direction as well.  Some suggestions have been made that the Government has self- serving and ulterior motives for the redactions in the documents tabled.  Here too, such remarks are singularly unhelpful to the aim of finding a workable accommodation and ultimately identifying mechanisms that will satisfy all actors in this matter.

But the fact remains that the House and the Government have, essentially, an unbroken record of some 140 years of collaboration and accommodation in cases of this kind.  It seems to me that it would be a signal failure for us to see that record shattered in the Third Session of the Fortieth Parliament because we lacked the will or the wit to find a solution to this impasse.

The House has long understood the role of the Government as ―defender of the realm‖ and its heavy responsibilities in matters of security, national defence and international relations.  Similarly, the Government understands the House’s undoubted role as the―grand inquest of the nation‖ and its need for complete and accurate information in order to fulfill its duty of holding the Government to account.

Examples have been cited of mechanisms that might satisfy the competing interests of both sides in this matter.  In view of the grave circumstances of the current impasse, the Chair believes that the House ought to make one further effort to arrive at an interest-based solution to this thorny question.

Accordingly, on analysing the evidence before it and the precedents, the Chair cannot but conclude that the Government`s failure to comply with the Order of December 10, 2009 constitutes prima facie a question of privilege.

I will allow House Leaders, Ministers and party critics time to suggest some way of resolving the impasse for it seems to me we would fail the institution if no resolution can be found.  However, if, in two weeks’ time, the matter is still not resolved, the Chair will return to make a statement on the motion that will be allowed in the circumstances.

In the meantime, of course the Chair is disposed to assist the House in any way it can and I am open to suggestions on any  particular role that I as your Speaker can play.

I thank the House for its attention.




Browse

The ruling

  1. Like I said, prorogation in 13 days

  2. No, what it means is that Harper is not the boss and that he has to obey orders. Hey, PM! Do as you are told!

  3. From what Kady wrote, Harper was not present in the House. Scared? Afraid he might kick a chair or two.?

  4. Milliken and his team obviously did their homework on this file. It seems to me that his decision strikes the right note by giving Harper fair notice that he will not rule in their favour, and giving them two weeks to rethink the ramifications of continuing to ignore the supremacy of Parliament. If Harper decides to continue ignore this one last chance to work with Parliament, then what follows will be on him and him alone.

  5. Any decision made by the Canadian gov`t on this matter will be in the interests of the safety and security of all Canadians.

  6. He has made his decision. But he's saying that the instution of Parliament is diminished if he's forced to act on and simply dictate the immediate release. In an effort to avoid that, he's put it out to the entire house to act accordingly and save a bit of insitutional face by moving forward with their own solution. He's doing his best to look out for the institution as a whole.

    We're not always best served by the absolute use of available power. In fact, some of the wisest folks know to refrain from directly using their power wherever possible.

    I think you should reconsider the 'coward' charge against the Speaker.

  7. *yeesh* Give us at least a few minutes to enjoy it, won't ya? ;)

  8. I maintain that – despite the apparent support of Parliament's authority over the Executive – this is going a whole lot of nowhere. What Milliken has done is to bifurcate the decision: "yes" on the principle and "we'll see" on the substance -i.e., can Parliament force disclosure. It's a clever deferral in the hope of avoiding a crisis.

    Regardless, I cannot see Harper/Cons backing up at all. The fight they've put up so far would indicate they believe they have much to lose from full disclosure. More likely the LIbs will swallow hard and take a weak compromise.

    Canadian democracy survives but is further weakened by the behaviour of both big parties.

  9. Yes, I second that.

  10. I'm sure this sounds better in the original German.

  11. I think the decision got made for them.

  12. A good decision from Milliken demonstrating balance and common sense. It's encouraging to see the overreaching grasp for power from Harper's PMO finally get reined in.

  13. A very fair ruling by the Speaker, now its up to the MPs to act accordingly.

  14. "But he's saying that the instution of Parliament is diminished if he's forced to act on … "

    Parliament is diminished if Speaker does his job after having weeks to think about issue?

    Milliken punted because he does not have spine to make decision. Parliament is diminished when The Speaker refuses to act/rule in timely manner.

  15. Supporting Harper on this simply wasn't a legitimate option – there was only some question of whether the speaker would do the right thing.

    And it's sad to think that we have come to this – where we have to sit with bated breath for months just to see if the government of the day will condescend to follow proper procedure.

    This shouldn't be the kind of thing we need to celebrate, this shouldn't happen at all!

  16. And by Canadian gov't, you mean all the representatives currently sitting in the House of Parliament.

  17. Two weeks hardly counts as punting, and is pretty darned close to light speed for these sorts of matters. The decision is there, he's simply hoping the house can find an agreeable way to honour it.

  18. No. He found Harper in contempt and has ordered him to produce the documents as called for in the Order.

    What he has also done is given the House 2 weeks to figure out an appropriate agreed upon process for releasing the unredacted documents.

    Big win for Parliament. Big win for democracy in Canada.

  19. Unbelievable. Miliken didn't cave and found Harper in contempt ordering him to deliver the documents in full, subject to working out the process within a tight 2 week deadline.

    “Accordingly, on analysing the evidence before it and the precedents, the Chair cannot but conclude that the Government`s failure to comply with the Order of December 10, 2009 constitutes prima facie a question of privilege.

    I will allow House Leaders, Ministers and party critics time to suggest some way of resolving the impasse for it seems to me we would fail the institution if no resolution can be found. However, if, in two weeks' time, the matter is still not resolved, the Chair will return to make a statement on the motion that will be allowed in the circumstances. [...] "

  20. Would you prefer Harper be frog marched out of the House by the RCMP and detained pending release of the documents?

  21. [cont]
    "… It is the view of the Chair that accepting an unconditional authority of the executive to censor the information provided to Parliament would in fact jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts. Furthermore, it risks diminishing the inherent privileges of the House and its Members, which have been earned and must be safeguarded.

    Wow. I'm kinda stunned and very impressed.

    So nice for Parliamentary democracy to win one once in a while.

  22. Also, I'm puzzled that anyone could see it as a bad thing when our representatives work together to find amenable solutions (albeit, at gunpoint in this instance). That's supposed to be a particular benefit of minority parliaments, and strikes me as precisely why we cage them all together in Ottawa in the first place.

  23. I wonder what use, if any, the Government will now try to make of their favourite Supreme after this utter rejection:

    "However, several Members have pointed out that Mr. Iacobucci's appointment establishes a separate, parallel process outside of parliamentary oversight, and without parliamentary involvement. Furthermore, and in my view perhaps most significantly, Mr. Iacobucci reports to the Minister of Justice; his client is the Government."

  24. Parliament is diminished when The Speaker refuses to act/rule when he's supposed to and instead offers twaddle about how its failing the institution if he actually does something now after giving both sides weeks to come to agreement.

    Maybe. But Parliament is diminished more when its MPs cannot (be bothered to) resolve issues of national importance through consultation and cooperative efforts. I think, having listened to the Speaker's ruling in full (not just reading the text) that this was the spirit in which it was delivered.

  25. Thank you Mr Speaker for preserving the basis of democracy in Canada.

    Many seem to think that this will result in a vote of non-confidence in the government (I agree) over contempt of Parliament which would lead to an election (not necessarily). People should be aware that Parliament has the right to punish government officials who are found in contempt of Parliament, including imprisonment. It will be very interesting to see if the current Governor General will agree to take any further orders from a Prime Minister who is in comptempt of Parliament and who might possibly be behind bars. I suspect that the Prime Minister's powers might cease if and when he is found in contempt of Parliament. Harper's deceitful shenanigans could well lead to a request from the Governor General for the oposition to form a coalition government.

  26. The question is whether Harper can act out of character enough to work with anyone.

  27. I'd like to see that. I'd even buy the DVD.

  28. Wow. A most excellent ruling by the Speaker, which on first reading I summarize thusly:

    "Yes, the House of Commons has the authority to have these documents produced. But it had better be really sure it wants to pull the pin out of this grenade, since there is a history of accommodating the government's reasonable positions on national security. And if there is no way to find a solution to these competing interests (national security secrets vs. holding the government accountable), the governance of this country is in deeper trouble than we thought. Work it out, people."

    Continued…

  29. ..continued

    The super-sized elephant in the room is the MINORITY GOVERNMENT that puts us in this situation, since it is up to the House to compel document production (or not) after debating the merits (or lack thereof) of the secrecy pleas. In a majority, the government can outvote everyone else in the holding of itself to account; in a minority, the opposition can wield enormous power over the government.

    This is a huge opportunity for MPs to sort out the remaining thorny issues (a task for which I give full marks to the Speaker for its assignment), or for Harper to convince the electorate on the importance of a majority to overpower an allegedly untrustworthy opposition. Since, notwithstanding the Speaker's notion on the supremacy of the House over the government, the supremacy may end up (in this case) resting with the electorate which created this House.

  30. The speaker has also given strong hints of what he would consider to be a reasonable resolution of this matter. Unlike some of the people posting here he has acknoledged that security over confidential information is an issue that has to be dealt with seriously. This is not an order to simply turn all available documents over to Aaron Wherry. It invites both the opposition and the government to work constructively to arrive at a solution – and he has suggested clearly what that could look like.

    • Interestingly, by citing a Bob Rae proposal.

  31. Although perhaps now we have a better understanding of why he used the phone to prorogue last time..

    ..after all, even if Parliament sends him to prison, he still gets a phone-call doesn't he?

  32. John please explain how prorogation will help anybody with this? This isn't a piece of legislation that will die on the order paper as proved by the last prorogation nor do I honestly believe the GG would grant it. If what you are saying is you expect Harper to cut and run then I think he will be calling an election not prorogating.

  33. No. He did not find Harper in contempt, he gave him two weeks to find a way not to be found in contempt.

  34. Harper will never convince people to give him a majority when he is in contempt of the Parliamenrt of Canada. He must obey Parliament or he is finished.

  35. The only way not to be found in contempt is for him to obey Parliament.

  36. Technically what he said was: the government is completely wrong on this, going with the government's view jeopardizes an important part of our democracy, this "constitutes a prima facie question of privilege" and you must produce those unredacted documents.

    Basically: you are in contempt and if you don't do exactly as I say, goddammit, I will formally find you in contempt so start acting reasonably Mr. Harper and don't force me to do that.

  37. For once we agree on something Holly Stick. I, too, would like to see that but I wouldn't buy it on dvd, tho.

  38. Sean has nailed it, which is no surprise. The Speaker's ruling was top notch in all regards.

  39. Neither you nor I know whether he would be successful in convincing the electorate.

    But at this point, I do not see the election option as off Harper's table.

    Let's say you're right. Let's say Harper gambles, and the Liberals win a minority or a majority — I wonder how eager they would still be to share the documents with the House. I would not take it as a given.

  40. Um, in a word, no.

    In a few more words: what he is saying, expressly, is Harper has no right to withhold those documents from Parliament and he must produce them, that refusing to do so jeopardizes a fundamental part of our democracy, that Harper basically is in contempt of Parliament but don't force me to formally rule you in contempt of Parliament because that causes other problems. However, if you continue to ignore the many suggestions from the opposition parties, then I will find you in contempt.

  41. I would love for Harper to go to an election on this issue.

    Imagine telling people the reason why he is calling an unnecessary unwanted election is because he doesn't want to listen to Parliament.

  42. "Would you prefer Harper be frog marched out of the House … "

    That does not have to be the opening gambit but he should have taken some action. Clearly Milliken thinks Harper has to give documents over to Parliament but he does nothing about it. The Speaker just gave them a two week extension on their deadline to come to some kind of agreement for no reason.

  43. So Nicholson has said “We welcome the possibility of a compromise.”
    Wasn't there already overtures of compromise? In camera/sworn in MP's etc?

  44. He found a prima facie case, but did not rule against the government. An equally strong part of his decision was the recognition that there are legitimate concerns regarding security and legality in making public the information the government is concerned about. Hence the speakers attempts to have the opposition agree to a compromise – along the lines he suggested were available for implementation if we looked to other jurisdictions, such as New South Wales. The opposition also has an obligation to take his decision seriously.

  45. The Canadian Government and cabinet consists of members of the duly elected CPC Party. Nothing has changed today, We elected a gov`t in 2008 and we expect them to work with Parliament to ensure that one of the roles of good government is to provide safety and security for all Canadians.

    The elected gov`t is ultimately responsible to all Canadians.

    For example, the Mulroney gov`t of the 1980`s did not use the wisdom of John Turner to negotiate NAFTA.

    And the Chretien gov`t of the 1990`s did not use the integrity of Preston Manning when they siphoned public funds to their Liberal friends in Quebec.

  46. Actually, he was at a press conference with Bev Oda, talking about why Canada doesn't believe abortion should be part of a maternal health initiative. Given that the press conference was announced during Question Period, he basically timed it to coincide with the moment no one would be paying any attention.

  47. …continued.

    The Speaker has declared that there is a question of privilege; he has most certainly NOT declared a finding of contempt. A motion of contempt may proceed in the very near future, get debated and then voted upon, but it would be nice if everybody could arrive at a satisfactory resolution before getting to that point. It is the House that finds the contempt, not the Speaker.

    I don't even know whether I should call your attempt "spin." But it is most certainly a misstatement of the Speaker's ruling today.

  48. Not even close, ted. Sorry. Read the ruling. Important snippet right at the end, here:

    Examples have been cited of mechanisms that might satisfy the competing interests of both sides in this matter. In view of the grave circumstances of the current impasse, the Chair believes that the House ought to make one further effort to arrive at an interest-based solution to this thorny question.
    Accordingly, on analysing the evidence before it and the precedents, the Chair cannot but conclude that the Government`s failure to comply with the Order of December 10, 2009 constitutes prima facie a question of privilege.
    I will allow House Leaders, Ministers and party critics time to suggest some way of resolving the impasse for it seems to me we would fail the institution if no resolution can be found. However, if, in two weeks' time, the matter is still not resolved, the Chair will return to make a statement on the motion that will be allowed in the circumstances.

    Continued…

  49. You don't understand what the Speaker did. Harper has refused to provide the documents by claiming national security as an excuse, and he has also refused to work with the opposition to find a way to release the documents to Parliament while keeping them secure. Harper has just been told that he has two weeks to work with the opposition or he will be most likely found in contempt of Parliament. If that happens he is finished as PM and good riddance to him.

    The Speaker's concern is to make government work. This should also b e the aim of the governing party, but Harper and his thugs have consistently disrupted government committees and behaved destructively. They must now either cooperate with the opposition to make government work or get turfed.

  50. …as the opposition has already been suggesting it would be happy to do for months now.

  51. The opposition made overtures. The Conservatives stupidly did not respond.

  52. You and Holly Stick are some sick people. Had Harper not attended the press conference with Bev Oda, he would have been accused of being a coward for not attending THAT particular event. Now that he didn't attend the ruling by the speaker, he is wrong on that account. It doesn't matter what Harper does. According to the likes of you, everything is concluded beforehand. You two pretend to be adults but you don't even know what it means to be an adult.

    You people are sick!

  53. Are you silly enough to believe Harper did not deliberately schedule the press conference for that time?

  54. Yeah, I find my self agreeing with MYL. Shocking?

    The Speaker has affirmed the <bold>principle of Parliamentary supremacy<bold/> but has avoided the substance. The substance being: can Parliament actually force the Executive to comply and, if so, by what mechanism and what are the consequences?

    The ruling is, sadly, less than it appears to be.

  55. No, they're right, and you're trying to win an argument you cannot win..

    The Oda conference was not a MOON PHASE. It was an event planned and scheduled by the government, which the PM chose to attend instead of this much more significant event. It was not a random or natural sequence of occurrences, it was the Prime Minister's schedule, and that is not something that is thrown together or happens by accident.

    Your choice was to defend it as innocent, which you're free to do. That's doesn't make anyone else sick, though it brings into question your dedication to perceiving the reality of applied politics.

  56. I'd make it my screen saver.

  57. He painted him into a corner.

  58. Actually Bev Oda is in Halifax so Harper was not bravely facing the press on the abortion issue. I'm sure he and the boys in his office were glyued to CPAC..

  59. Milliken's ruling basically states for both sides to go back to the drawing board.

    Nothing wrong with that.

    I think Milliken believes the process which led to the disagreement, could have been largely avoided on both sides, and if that's what he believes, I agree with him on that wholeheartedly.

    Neither sided came out as a clear winner.

    This disagreement has not been settled yet, but if both sides will be reasonable, the issue can and will be resolved, the key being, of course, that both sides understand the meaning of being reasonable.

    It might be helpful to draw back to a beginning and start asking the most important question as to what the ultimate aim is in regards to coming to the bottom of the Afghan detainee transfers. I believe this fundamental question has been lost out of sight, on both sides I must add.

  60. I hope his American advisors provided him with chairs to kick.

  61. You actually value "safety and security" over democracy? Why are conservatives such wimps?

    And we do not "elect a government." We elect representatives, our own MPs. Harper is the leader chosen by a minority of those MPs, and he is in contempt of the majority.

  62. Well, given what the government's doing over at the Millitary Police hearings re documents – 'they'll be ready when they're good and ready' and now that the've been thrown into sea containers, the location of which seems to be unknown – I'm predicting Harper will continue to play silly bugger.

  63. Another Conservative fairy tale. The Conservatives have been obstructive, secretive and completely uncooperative. Harper brought this on himself by his arrogance.

    Don't bother trying to push the party line that 'both sides were at fault'. The Conservatives are at fault.

  64. Harper's absence today makes me think that he knew he would lose this one. I also do not believe that he will comply. I don't think that he's gonna put in a confidence motion. Instead, I think that he will buy time by sending this one to the Supreme Court.

    He'll likely put forth an unworkable proposal to show good faith and when the Opp turns him down, he's gonna give Milliken another chancce to rule and take to the Supreme Court.

  65. Harper's absence today makes me think that he knew he would lose this one. I also do not believe that he will comply. I don't think that he's gonna put in a confidence motion. Instead, I think that he will buy time by sending this one to the Supreme Court.

    He'll likely put forth an unworkable proposal to show good faith and when the Opp turns him down, he's gonna give Milliken another chancce to rule and take to the Supreme Court.

  66. "or for Harper to convince the electorate on the importance of a majority to overpower an allegedly untrustworthy opposition, by calling a snap election basically on this single issue."

    Did you not hear the multiple references he read out on the subject? Miliken couldn't have been more clear. He stopped short of citing the government for contempt but his intent is crystal clear. Harper has two weeks to work out a compromise (and there are many options on the table) or he will most certainly rule against the government.

    He just put Harper on notice. He's giving him a chance to save face and avoid plunging the country into a constitutional crisis. But Miliken's speech makes it very clear that he will bring down the hammer onto Harper's head if he continues to defy the will of the House.

  67. It doesn't really matter where Bev Oda or PM Harper are, were or will be! According to the lot of you, he is never in the right place in any case. Case closed.

    You people have but one thing on your mind: to show everyone how truly empty inside the head you all are.

    You people are not interested in reasonable debate. You people are not capable of reasonable debate. For you people it's all surface material that shines. And what a false shine it is.

  68. Correct me if I'm wrong but it is the Ministers who will end up doing the perp walk if Harper continues to defy the will of the House, yes?

    Nicholson, Mackay and Cannon's rear ends are on the line but not Harper. At least, that's how I understand this.

  69. You couldn't be more wrong.

  70. For the longest time, I could not imagine people like you being in existence. How wrong I was: it is abundantly clear that people like you can and do exist. My mistake was to never hold it as a possibility.

    You people are sick!

  71. uh… Mike R? the appropriate safeguards you speak of were proposed to Harper months ago.

  72. Holly, as ususal, you are a paragon of objective impartiality.

    How is it that you are able to rise above partisan passions and always see and appreciate both sides of an issue?

  73. Are you also pushing the new CPC line that 'both sides were at fault'? (CPC = Coathanger Party of Canada)

  74. Holly, why won't you all do us a favour and go lay on a couch somewhere, go watch a soap opera on tv (any channel will do), and suck your thumb real hard.

  75. The Liberal Media is reporting that Harper was meeting with Danny Williams.

    LOL

    But I am one of "you people" and therefore should not be trusted.

  76. Better sick than stupid. Sick people can recover.

  77. I thought Williams was in the House for the Speaker; at least he was recognized there beforehand, according to Kady. But maybe he left.

  78. I certainly think it makes more SENSE to punish MacKay or Cannon, but I do believe that technically Parliament could lock up any MP on these types of charges, so there's no technical legal reason for Harper to be in the clear.

    That said, let's get serious. Nobody's spending a second in jail over this. Even with our current Parliament I can't imagine for a moment that the government would ever let things get that out of hand.

  79. "Sick people can recover"

    But not when being as sick as you are, Holly.

    You no longer have the capacity to hold reason within. Once humans are capable of setting reason outside of the self, the self is lost completely, and therein lies the answer to no cure being available.

  80. I guess you're ignoring what's going on over at the Military Police hearings.

  81. I believe that FV has suggested that he is a she….

  82. You are eaten up with spite. Talk to a priest or a psychiatrist.

  83. Some of you folks are just getting unnecessarily giddy by this Speaker Ruling today…….all this talk about contempt and the RCMP putting the PM in handcuffs.

    Forget about all this stuff about Parliament is supreme etc. The one phrase you need to remember is " governing party " . The CPC are the governing party and they were elected with 30 more seats then the other two federalist parties combined.

    So no matter what word games you want to play, the people have decided who the governing party should be.

  84. Or, as Ben Franklin proposed, "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."

  85. This is not about chavinism, Jan.

    You tnink Holly Stick has shown evidence within one of her posts that she is capable of doing anything better than laying on the couch, watch the soaps and suck her thumb?

    Because if you have evidence to the contrary, please advice.

  86. "I will allow House Leaders, Ministers and party critics time to suggest some way of resolving the impasse for it seems to me we would fail the institution if no resolution can be found. However, if, in two weeks' time, the matter is still not resolved, the Chair will return to make a statement on the motion that will be allowed in the circumstances."

    It sounds like Milliken has put the ball back in PM/MPs hands for two weeks and then threatens to do something if there is no agreement.

    Will Miliken go Dirty Harry – Go Ahead. Make My Day – or will it be more like a savaging by dead sheep if they don't come to agreement within two weeks.

    Are parties about to play a game of chicken and see how Miliken reacts?

  87. "I am the psychiatrist, Holly!"

    And now I'm going to eat lunch. (You will probably think that is another batch of nonesense I am spewing, but you don't understand one thing about me. Not a thing!)

  88. I hope I am wrong.

    I hope the government accepts fully the Speaker's ruling and concludes that they should make a full, complete and immediate disclosure of all the detainee docs in a manner that allows the whole truth of what has happened since 2003 to be made public.

    You?

  89. I'm sure all those folks living in ridings held by BQ will be glad to hear your binding decision that their votes don't count, especially those who voted against BQ, who still have the BQ member as their representative.

  90. You don't understand how parliamentary democracy works, do you? Parliament is supreme means that Harper doesn't get to be supreme dictator.

  91. Funny time for lunch. I'm not actually all that interested in you.

  92. For those Canadians now paying attention, any resistance from the Harper party to doing what Milliken has proposed will be seen as exactly what it is – at attempt by Harper to undermine our parliamentary democracy by imposing his will upon all those we elected to represent us. There is no reason for any of the opposition parties to swallow hard and take a weak compromise because an election fought on this issue will likely resonate with voters. It's a very simple concept – either your vote counts for something whether or not you vote for the Harper party, or it doesn't. Even those who claim they don't vote as a matter of principle would likely take exception to that.

  93. I guess Williams & Harper both left for their meeting after QP.

    Although I'm sure Williams would have enjoyed watching Millikens ruling as well.
    Harper. Not so much, I expect.

  94. Yes, you are interested in me, Holly, and you are very interested in people like me, for we are the only ones capable of pointing out your shortcomings completely, since we have reason still attached within. That is our secret.

    There, it's out there.

  95. Milliken's ruling basically states for both sides to go back to the drawing board.

    Actually, I think it's more accurate to say that the ruling basically asks for the government side to acknowledge the existence>/i> of the drawing board.

    The opposition has been suggesting ways to get around this impasse for MONTHS. It's not that the opposition hasn't been willing to negotiate some terms here, it's that the government has refused to acknowledge the very need to negotiate ANYTHING, as they've been challenging Parliament's right to even determine that there's an issue to negotiate here.

    The Speaker has basically ordered the government to enter into the type of negotiations that the opposition has been demanding since 2009. I don't know what constitutes a "clear winner", but when Parliament said to the government "You should do what Parliament says" the government's reaction was "la, la, la ,la , la, la… I can't hear you". As they felt perfectly empowered to ignore Parliament's order, negotiating the terms under which they would comply with Parliament's order never even came up. Now, that Miliken's basically said "No, Parliament's right, you DO have to comply with their order, but I'll give you two weeks to negotiate the particular details of compliance with the opposition", I don't see how Parliament's not the clear winner. The important point to keep in mind is that the government wasn't just refusing to give Parliament the documents, they were refusing to acknowledge Parliament's right to demand the documents, let alone to even consider working with the opposition on a compromise process for their diclosure.

    When one side is demanding negotiations for months, and the other side is refusing to acknowledge that there's even a legitimate issue to negotiate over, I'd say a ruling giving the obstinate party two weeks to conclude negotiations is a pretty big win for the side that's been demanding that the government sit down and negotiate with them since before Christmas.

  96. Problem 1: most Canadians are not paying attention. Most Canadians think Parliament is the building.

    Problem 2: the Con core support base is rock solid and will not impacted by this ruling. It may even be energized.

    Problem 3: Layton is ill. Libs likely not financially ready for an election.

  97. I think Harper’s gonna hold his ground. This grace period will show us what the opposition is made of.

    • Exactly what ground is Harper going to hold?? the idea that he alone decides what MPs can and cannot know? If so, he will be found in contempt. Harper has to move on this one.

      Meanwhile, I could understand the opposition holding their ground, as it sounds reasonable:

      "We are delighted at the ruling and we will make haste to arrive at a process by which we can review the documents, get the information Parliament needs, without compromising national security." [Ignatieff]

  98. There you go again…

  99. Quite honestly, I haven't been following this story and the proceedings and history closely enough to make a determination of that. As long as the law and parliament are respected, and our legitimate national security interests are looked after, I really don't care about anything else.

    In my experience, pointing fingers and assigning blame are generally the obsessions of immature children, partisan hacks and people with personality disorders.

  100. Sigh. The Speaker does NOT cite for contempt. He decides whether there is enough material in the complaint to proceed with a motion, a debate and a vote. The House decides whether or not there is contempt.

    But thanks for quoting two lines of my posts in order for you to start talking about something else. Really moves the discussion along in a free flow.

  101. "And if it hadn't been for those blasted kids and their dog, I would have gotten away with it!"

  102. I don't believe that Harper will dare to prorogue the House again. I also do not believe that he will put the matter to a confidence vote. Harper does not want to face the electors on an issue of accountability to Parliament and let's not forget the ever-unfolding Jaffer/Guergis matter.

    I think that Harper will try to run the clock to the summer break and send this matter to the Supreme Court. He has no where else to go with this. The voting booth is the very last place he wants to be given these variables.

  103. I meant that you were wrong on your interpretation of the Speaker's ruling.

  104. Isn't that what they said when Harper prorogued? Canadians aren't as dumb/unengaged as you think.

  105. A regional Party like the BQ has no hope to form gov`t but the governing party has a duty to see that those ridings are treated equally to others. The CPC gov`t does a good job in seeing that this is done.

    If the LPC becomes a regional Party of downtown Toronto, those ridings will also be treated equally.

  106. Do you mean the opp. of seasonal flu, wafers, bathroom breaks etcetcetcetcetc……….Think again.

  107. Still can't come up with any evidence to the contrary, eh, Jan!

    Some day give it another try. Holly might decide to alter her ways.

  108. "The substance being: can Parliament actually force the Executive to comply and, if so, by what mechanism and what are the consequences? "

    Did you not hear the multiple references he read out on the subject? Miliken couldn't have been more clear. He stopped short of citing the government for contempt but his intent is crystal clear. Harper has two weeks to work out a compromise (and there are many options on the table) or he will most certainly rule against the government.

    He just put Harper on notice. He's giving him a chance to save face and avoid plunging the country into a constitutional crisis. But Miliken's speech makes it very clear that he will bring down the hammer onto Harper's head if he continues to defy the will of the House.

  109. What Sean said…

  110. wallpaper

  111. Nicely put, Sean, except the Speaker cannot compel the immediate release. What he said today is, absent everyone smartening up, he is prepared to proceed with a House motion / debate / vote on a charge of contempt of the existing House order to release the documents.

    But I agree completely that Milliken has very wisely told everyone to smarten up and get to work.

  112. There, it's out there.

    That's not the only thing "out there."

    Enjoy the lunch. Might I suggest the Zyprexa?

  113. Agree that proroguing again is not feasible. Delay is Harper's best tactic. If he can get one of the Oppo parties to cave, then he's golden.

    With respect to an election, I really don't think Iggy wants to fight his first as leader on what amounts to obscure – important, I'll grant, but obscure nonetheless – Parliamentary privilege issues.

    Moreover, if the opposition really wants to go to the mat on this, they'll have to move and pass sanction (right term?) motions in the House. At that point, I think they allow Harper to go nuclear and claim it's another coalition coup, usurping his legitimately elected government, etc. Remember how well that turned out for the opposition last time?

    This just doesn't feel like a winning election issue for the opposition.

  114. Sorry, but you can't change what he said just because he went so strongly against the government.

    1. Harper refused to provide unredacted documents; Milliken said he had to.

    2. The opposition said Harper had breached privilege; Milliken agreed. A prima facie breach of privilege in fact. If he breached privilege then contempt was found. But what he did, was give Harper 2 weeks to fix that. It was like a finding of guilt but a conditional sentence: breach the conditions and I'll impose the full sentence.

    3. Harper claimed he didn't have to reveal the documents; Milliken ruled against Harper here too. In fact he had his harshest words for Harper on this issue and said that Parliament had the right and to unilaterally ignore that right jeopardizes a significant part of our democracy. He said concern for security and confidentiality are reasonable but it doesn't matter, it is no excuse. There are lots of ways Parliament deals with that and the opposition parties have suggested a number of them.

  115. The crowds are growing, and not one of you is capable of reasonable debate.

    You know, you people are like parasites: in need of another body for staying alive.

    Our human world is no longer divided between "left" and "right". Those terms are completely outdated. The new division is marked between those who can and those who cannot. The ones who cannot, cannot afford to lose the ones who can, for it would be the end of the cannots.

  116. [cont]
    Indeed, he went on to say: "But 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. The right of Parliament to obtain every possible information on public questions is undoubted"

    4. Harper claimed Iacabucci was a reasonable compromise; Millike said that ruse was a farce.

    5. He did savagely ripped into the opposition parties for their rhetoric which he said was, um, "unhelpful".

    6. The only points the opposition lost was on the specific items focused on what McKay said in the House and the intimidation of witnesses, and even there he said he was very concerned about the government's actions but could only find intimidation of a real witness not a possible witness.

    Dems the facts I'm afraid.

    The opposition parties wanted the documents and had suggested a number of ways to ensure confidentiality. Milliken said Harper has to give them what they want and work with them, not just walk away.

    A victory for Parliamentary demcracy through and through.

  117. It shoudn't be anybody in a possible coinflict -of-interest – like current Cabinet Ministers or officers who were involved with the Afghan mission.

  118. Alright on the narrow technical point, I will concede he did use the word contempt.

    What he did say was that Harper was wrong on all counts, had breach privilige, he would be found in contempt if there was a vote and, if he doesn't fix the problem within 2 weeks, he will let that vote proceed.

    It's like saying: all the facts support the charges, we all know you did it beyond any reasonable doubt and the facts are indisputable, the jury is going to find you guilty without a doubt. But here's what I'm going to do. Before I call the jury back in for a vote, I'm going to let you decide that the Crown's last plea offer is a good one. You better take it though, because if you don't, it's your jail cell.

    If that is some victory, you can certainly have that.

  119. But Jan, they are there to argue for or against release; they don't get to vote in this little multi-party committee of mine. And yes, I would prefer the people who are most connected to the issue have an opportunity to make the case.

    But don't worry. This idea of a little Canadian who can see the need both for accountability and security-inspired secrecy won't get very far around here.

  120. Evidence of what?

  121. We can hope. But what if the Cons are hiding the really,really bad stuff: evidence of torture? I for one can't see that national security should keep knowledge that from Canadians. So, how to distinguish such "legitimate" Oppo demands from purely political motives?

  122. This is what I've put to you in my previous post to you: "You tnink Holly Stick has shown EVIDENCE within her posts that she is capable of doing anything better than laying on the couch, watch the soaps and suck her thumb?

    Perhaps you have seen the evidence. Please let me know if you have.

  123. Especially when the obstinate side doesn't have the numbers. This seems to be Harper's block – he can't seem to acknowledge that he is in a minority position.

  124. I see you can't help yourself with the partisan swipes at your Prime Minister, but you have in fact done a somewhat better job in the last two comments summarizing the Speaker's ruling.

    I don't get your "breach privilege" line, though. Perhaps you could expand on that; I fear you still don't completely grasp the parliamentary to and fro. Some members raised a question of privilege because, they allege, the government was failing to abide by a valid order to provide the documents. The Speaker, following House debate and time for reflection, has just said that there is enough evidence to support the question of privilege. That finding is what will permit further events to proceed.

  125. Sounds like you know what's in those 'security e-mail documents'.

  126. It also gives the opposition a chance to act responsibly by working with the government to have appropriate safeguards in place to ensure that information that is sensitive is not released to the world at large.

  127. MYL Call me cynical but I can think of one large reason why the Liberals will never go along with your little plan.
    I have never believed that the LPC position had anything to do with the Geneva convention or Canada`s place as the conscience of the world or the protector of Afghan detainees.

    I think the Liberals approached this issue just like all the other phony scandals…….a way to make the gov`t look bad. Now, you propose to take that away from them by making them swear to secrecy…….you`ve taken away the reason why the Liberals have tried to keep this issue in the news. This was never about the actions of the troops or the reputation of Canada in the world. It was always politically driven……just another attempted smear-job by the Party of Kinsella and Reid and Easter.

  128. Well, some of us think Harper's 'we can 't risk national security' is just an excuse to cover his government's ass. Let's call is a draw.

  129. PUBLIC INQUIRY . Over and over again. How'd you miss that?

  130. And this koolaid tastes so good!

  131. I am honestly surprised that Millikenm stood up for Parliamentary democracy. Will the opposition do the same? I hope so…

  132. Of course the crowds are growing, thats what happens when they see a train wreck.

  133. Not wanting to bestow a direct reply to the steaming pile left behind by madeyoulook ….
    (I think that adds to the ill-gotten 101 points he/she has – humour alert – I am just jealous about the points)
    …. I must say that in this case the spin is not only untrue – it isn't even plausible!

  134. And BOTH of you are what Milliken slapped around today, lamenting the lack of goodwill on both sides of this question.

  135. The ruling is not – "less that it appears" unless you fail to understand what the speaker can and cannot do

  136. I have to confess – it's a recurring fantasy of mine. Today makes is a slightly less remote possibility.

  137. Please educate me.

    So suppose some Opposition MP's get sworn in the Privy Councillors and get to see the unredacted documents. Does that effectively put a gag order on them. i.e. they will not be able to speak about what they read without breaking the law?

    i.e Doeosn't the Opposition just lose its ability to bloviate about the detainee issue if a few of them get to see the documents? Does not seeing national secrets necessarily mean that you lose the right to speak on what you have seen?

    i.e. Congresspersons on the Intelligence committees in the States get to see everything, but they then basically cannot speak in public at all about what they have seen.

    Can somebody explain exactly what the Opposition is trying to achieve. Not being allowed to see the documents mean they can bloviate endlessly on the issue. Seeing the documents means they will have to shut up. In either case, the media and the public are never going to know anything more than we know now.

  138. Brilliant Jan……It`s a draw. I think you`ve nailed it.
    Reps. from the 4 parties will get together and come up with the Great Canadian Compromise which in this case will consist of some kind of delaying mechanism for the gov`t and a sufficient feeling of control for the opposition.
    And we`ll call it a draw……..which is what the good Speaker wanted.

  139. 'You People"? Batsh*t crazy _itch!

  140. That`s very witty John, but next time could you also call me some name, something original……I know…..how about conbot.

  141. Jeebus H. Christ, stfu FV, yur a goddam horror and a menace to democracy.

  142. My gawd she/he is stoopid.

  143. Good point. They ALL suck anyway.

  144. Well, "menace to democracy" might be a bit much :)

  145. Harper is not going to give up that easily, he is going to go for it.

  146. I wonder if he is one of the climate change denialists who get all hysterical over the CRU emails. I've noticed rightwingers tend to reuse the arguments that are used against them. Saves them having to think originally.

  147. Not too sure about that, don't dismiss him so easily, you might be surprised!

  148. The response above was to Holly Stick…

  149. Back to the new CPC party line 'both are at fault'. Sorry, but no. The Conservatives are at fault, and they got their final warning today; "Start cooperating and acting like mature responsible adults governing for the good of the country or be cited for contempt in a couple of weeks."

    I don't think the Harper Conservatives are capable of rising to the level of good government.

  150. "or for Harper to convince the electorate on the importance of a majority to overpower an allegedly untrustworthy opposition, by calling a snap election basically on this single issue."

    smh

  151. Some conservatives and even some of the old Reformers may remember that their original goal was to reform government, not to destroy it.

  152. If they don't get to vote – how do they come to a decision?

  153. Ouch! It's not often that you get to see a self-righteous ranter kick himself in the teeth like that. Do you need help picking those Chiclets up , FVerhoeven?

  154. There are lawyers, and then there is the jury. Each party's rep makes up the "jury." The others, who plead for or against secrecy but do not vote to decide, are the "lawyers."

  155. Agree. Harper surely won't make any meaningful concessions after fighting so hard for so long against release of anything of substance. He'll delay and hope that the opposition are unwilling to bring this to a head and hope he can make it to the summer adjournment. if he make it that far, I expect he'll request (and get) a dissolution from the new GG before the House convenes in the fall. If so, he wins and the matter effectively dies.

    If the opposition parties have the balls to even attempt to take down the Cons, then Harper would be willing to force an early election rather than give them any meaningful access to the docs. I don't see the Bloc giving the Cons a pass on this, but with Layton ill and the LIbs apparently not yet election-ready, either could be looking for a graceful way to avoid a crisis and/or an election.

    Either way, I expect no meaningful disclosure of detainee docs as a result of this ruling.

  156. Way to confirm the chauvinism, FV. It lurks just under the surface with you guys.

  157. Is it possible that the opposition, unlike the government, don't actually decide what they should do based upon what gives them the opportunity to bloviate endlessly on an issue? I mean, I know that the current government keeps killing it's own legislation over and over again in order that they can keep on complaining that their legislation keeps getting killed over and over again, but maybe the opposition just doesn't roll that way.

  158. I'm amused by the hardcore partisans who are frothing at the mouth by the notion of working together.
    So sad…..

  159. You have any evidence of Holly Stick contributing in a meaninfull way when she posts?

    I haven't, and so it would be better for the well being of our democracy if she would stick with what she would do much better. No doubt about that in my mind..

    I would love to hear Holly's reasoned opinion on issues, but she either doesn't want to or she isn't capable of it. She's the menace to a well workings of our democracy, not I.

  160. Jeez, tone it down. Any reasonable mind should know there is no threat to liberty or democracy in 2010 Canada. It is perfectly reasonable to expect to have democracy and security at the same time.

    All these hysterical notions that some security e-mail documents that are not released immediately may be a threat to our democracy is just damaging to what the role of an opp. should be………wait for something important.

  161. Dude…. you're not sounding so good. Are you……. sick?

  162. How about paranoid? Dillusional? Grumpy?

  163. "but I do believe that technically Parliament could lock up any MP on these types of charges"

    Uh… Yes they can. That's why it's called contempt of Parliament. They can have the Ministers detained until the PMO complies with the order.

    "Even with our current Parliament I can't imagine for a moment that the government would ever let things get that out of hand"

    Hello? Have you met our Prime Minister?

  164. And now the speaker has ruled it would be appropriate to put them in place. Much to the disappointment of those who are more interested in "scandals" than having information. I'm not sure how happy the press or the opposition generally will be when the information is released to the committee members and no one else.

  165. "…Fed up with months of government foot-dragging on their demand for uncensored documents related to the alleged torture of Afghan detainees, opposition MPs sought a formal ruling from the Speaker of the House of Commons that their parliamentary privileges have been breached…"
    http://www.thestar.com/news/canada/afghanmission/

    "…The precedent here today is the clear, unequivocal, benchmarked statement of authority of the House to send for papers and records and it is absolute. And he says the House has never acted to curtail its powers. It was always absolute and it still is. So that's the rule, that's the law…" Derek Lee
    http://thestar.blogs.com/politics/2010/04/speaker

  166. I have wondered about that myself. Suppose the Tories invite a couple of trustworthy (hey, don't give up yet, conbots!) Liberals into the inner circle, the better to clearly understand why there are compelling national security issues demanding that information stay locked up. Might there be a chance for these two to go back to all opposition MPs and say "OK folks, trust us on this, for the good of the country we need to keep this sealed forever / for fifty years / until our troops come home / etc." Is that dreaming on LSD, or not?

    Better yet: Swear in one member from EACH party, and have that group of MPs wield Iacobucci's black marker, instead of the retired Justice who answers to the minister, have this group of privileged (and hopefully principled) MPs answer to the House. Throw in a couple of Ministers (Justice, Defence) and a DND lawyer and a DND general to make the case for operational security, and a CSIS higher-up to make the case for national security; but no one on this sentence gets a vote.

    This process will require more than two weeks, but an agreement to proceed with (something like) this would most certainly satisfy the Speaker. More challenging, this will require mutual trust, the lack of which was so eloquently lamented by the Speaker: trust that the Tories may just be justified in keeping some stuff super-sealed for the good of the country, and trust that the opposition will not be blabbing to Jane Taber that afternoon.

    Good luck, Parliamentarians. Your country needs you to get this right.

  167. "The opposition has been suggesting ways to get around this impasse for MONTHS."

    What, specifically have they been suggesting for months? Something official? Let's hear it first before we continue on such unfoundational basis. Can't build a case on flimpsy statements.

  168. Please see above on your confusing "breach privilege" choice of phrase.

  169. I was (mostly) joking. Implying that the Speaker gave them 14 days to solve the problem, so he will prorogue in 13. At least I hope it was a joke…

  170. Back already, Holly, to come and play with the adults>

    For your information (since reading comprehension goes right over your head): if you go back over my previous posts above, you will see that I referred to "official suggestions" in regards to the compromise the speaker has called for today. The speaker did not rule that all documents can be released unconditionally.

    Some posters seemed to suggest that the opposition parties had made official suggestions to the effect in the past (meaning before today's ruling) and that is simply not the case.

    It's not so difficult, is it Holly, to try and follow someone's post and figure out what the discussion is all about.

    Oh, and Holly: simply copying quotes from the Star without much further ado won't cut it when wanting to participate in an ongoing discussion. But perhaps you really like to prove yourself as being a copy-cat………miauwwwwww…………..

  171. " I don't think. the Harper Conservatives are capable of rising to the level of good government"

    See what one simple period is capable of, Holly? Amazing, ain't it?

  172. Then why did the Liberal party not officially serve a motion to such effect, rather than wasting their time presenting a motion on considering abortion to be a form of contraceptives?

    The opposition could have been real serious about it all. Suggestions are fine, but where is the official stuff?

    • You haven't followed this at all, obviously.

  173. Holly, in case you still haven't noticed: your Star quotations used serve as proof that you have not been able to follow this particular discussion at all. Go think about it, and it will become clear, eventually. (Hopefully)

  174. can you enlighten us sick people why the presser had to occur at the same time as the previously announced ruling and couldn't be delayed a bit? and stop insulting people! we don't accept that childish behaviour here.

  175. Actually, the press conference probably did not happen, as Jan pointed out above that Oda was in Halifax, while Harper was in Ottawa.

    Someone else has said Harper was meeting with Danny Williams.

  176. … so that's a "no" for the Zypextra?

  177. Not surprising. My point was just that the talking point excuses were weak in the extreme.Sent from my iPhone

  178. You seriously need a rest or something.

  179. I need to give it a rest?

    And according to you, when should Holly and her band of tiresome remarks about Harper, give it a rest?

    You people think it's funny to still shout "Harper evil" and "Hidden agenda" after doing so for years and years and years?

    Contribute something meaninful and I will give it a rest.

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