Iacobucci to decide - Macleans.ca

Iacobucci to decide


The Justice Minister has asked Frank Iacobucci, the former Supreme Court justice, to review documents relevant to the Afghan detainee issue and decide which can be turned over to the Parliament*.

The opposition seems unpersuaded. Jack Layton noted during Question Period this morning that Mr. Iacobucci would be reporting to the Justice Minister. Dominic LeBlanc asked why the government didn’t go further and ask Mr. Iacobucci to lead a full inquiry. Meanwhile, Derek Lee notes that the government already has, or should have, officials capable of deciding which documents can be released.

*This sentence originally indicated the documents would be turned over to the opposition. That was incorrect and misleading.


Iacobucci to decide

  1. Who the hell is Iacobucci to decide what Parliament can or cannot see? Who elected him? Is Parliament supreme or Frank Iacobucci?

    • More importantly, exactly what are his terms of reference.

      If this is little more than a large scale Access to Information request, it isn't enough.

  2. So, the Justice Minister does not trust his own Department to decide what is or is not "protected" information?

    Plus, the government does not trust elected members of parliament to decide on national security issues?

    Good Grief! What's in those documents that has TheStrategist so worked up?

    • This is all a smoke screen as the Justice has no authority to review protected documents nor to make decisions on whether exemptions applied were applied appropriately. There is a process for the review of decisions and the Justice will never likely get access to the records to even review them.

      Only a court of law (Federal/Supreme) can review the documents and review the decisions made by the person who has the authority to make decisions for the federal department(s) concerned.

      The Access to Information Act is a federal statute and nobody is above it, and the PC's can't appoint anyone to review decisions made under it. The Justice may be given access, but the PC's can't order the department to allow it. The Information Commissioner could ask the Justice's for an opinion, but that is hardly worth the trouble as it will be only an opinion and the Information Commissioner has its own lawyers specialized in this particular law – for which the Justice is not specialized.

      Further, if any of you trouble yourselves to check, you will see that before any court gets involved, the Information Commissioner has to have investigated the problem (on her own or as a result of a complaint made) and then she must have made a decision one way or the other. After that, the Information Commissioner may decide, depending on the importance of the issue, to bring the matter to Federal Court (Trial Division). If unsatisfied, she may later bring the case to the Federal Court of Appeal. Depending on what's what, it may go as far as the Supreme Court (and you can count years before it gets there, if ever).

      Oh yeah, I am an ATIP professional. The media should take some basic courses, as should MP's before they jump to conclusions about the power this Justice may have, which is really ZIP.

  3. Might I suggest that if the Justice Minister feels he has to go to former supreme court Justices to understand the wording of the motion Parliament put forward, he should be a former Justice Minister.

  4. This does nothing to address Parliament's vote ordering all unredacted documents to be turned over – Nicholson is still tryint o claim his government has the right to hide certain documents.

    Derke Lee and the Liberals (and if not them, another opposition party or MP) should proceed with their Contempt of Parliament Point of order, and furthermore ask the Seapker for a Warrant ordering those documents be produced.

    • It's just like the Fixed Election Date law, the Constitution can not be over-written.

      • but it can be ignored

  5. Aaron, I hope you correct your post. The question is what documents can be turned over to *Parliament*, not just the opposition. The distinction is, I think, important, and confusing the two plays into the government's hands.

    • But in Mr. Wherry`s mind the opposition is the government. A reckless opposition demanding the release of security documents needs to be counselled. Bring on the judge.

  6. Liberal response:
    “We hope that he will be given the terms of reference necessary to do the job, to re-establish the just authority of the House of Commons …

    In other words,
    the Constitution (SCoC) is supreme,
    not Parliament.

    sec 52, the Constitution is supreme and entrenched…..

    • Don't be absurd…you're basing your reading of the supremecy on the initial reaction of the liberals, really? If that's Ignatieff's final position then he's badly let parliament down. Hopefully lee will continue.

      • kcm, the SCoC rules on disputes in Parliament.
        Unlike the British, where Parliament is supreme,
        in Canada the Constitution is supreme, and the SCoC rules. Ask a Trudeau.

        • Care to provide an example of the constitution being supreme in a dispute with parliament, with reference to Trudeau.

        • Wilson, yes it does, but Parliament has the final nuclear option…the Notwithstanding Clause.

          • The NWC is in the hands of the gov't of the day only isn't it? The issue of parliament's right to know and hold the gov't accountable, as opposed to the duty of the gov't to protect national security needs to be established.

          • Oh yah, the option Paul Martin wanted to scrap so as to take power away from Harper…….

            a familar theme coming from the LPC eh

          • You reallly are a fool. Most libs acknowledge that Martin's gambit was the move of a desperate politician and nothing whatsoever to do with taking power from Harper, who wasn't even PM at the time. I see you haven't bothered to provide evidence to support your assertion above…Quelle surprise!

    • The constitution may be supreme, but as far as I know it does not prevent parliament from ordering the release of gov't documents. This argument appears to be irrelevant.

      • Meh.. it's from wilson. That it's irrelevant is taken as a starting point.

        • lol…wish i could learn that lesson.

  7. So Iggy rolls over on this as well ROFLMAO!

    • As an arch conservative, you should be applauding the fact that the PM and Ignatieff now have shared a goal: both want to avoid an election until Harper feels it is safe for him to pull the plug.

    • Another hill created by Liberals,
      another hill Iffy climbs down.

      Thing is, the UNredacted documents over an Afghan detainee being cuffed upside the head with a shoe,
      have already been released, back in 2007, to Amnesty Intl.
      Liberals are asking a former Judge of the SCoC to go on a witch hunt and find more such info and release it to them.

      There is no way in h—, judging by prior release of secret docs to the mediai,
      that ALL of this info, IN A TIME OF WAR, will be kept secret.

    • Since you see nothing wrong with calling the Leader of The Opposition by a demeaning name, I expect that you'll have no problem with others calling the P.M. "Harpo". In this case a piano takes the place of the Marx brother's harp.

  8. Handing over these documents to Iacobucci is a good first step, however the terms of reference will be critical as well. Is he to determine which documents need to stay private for national security reasons? Is he to decide which documents satisfy the former but also fall within a given mandate about the Afghanistan issue?

    • And how does the fact that the order of parliament specifically said the documents be produced "in their unredacted form" fit in?

      • It fits into the fact that there may very well be national security issue related to these documents and they should be reviewed by an impartial third party. The government's behaviour up to now in responding to the Opposition has been reprehensible, but in there somewhere they were correct about the potential national security ramifications. Blind squirrel, broken clocks et al.

        • I would say that if the original order is valid, stephen Harper is in contempt if Iaccobucci redacts the documents before they're sent out. Unless the original motion is altered.

      • And the Judges decision will have to be tempered with the fact that we are at WAR.

        • Wel, I think I'll let the judge decide that

          • You don't think Canada is at war?

  9. "Judge Iacobucci, 72, is a former law professor and deputy justice minister who served on the Supreme Court from 1991 to 2005. He recently led an inquiry into on the overseas torture of three Arab-Canadians.
    Several disputed pages of his findings were made public last week — 16 months after his original report. The Harper government and inquiry lawyers negotiated for more than a year about the sensitive portions of the report, which the government tried to keep secret due to national security concerns."

    While the judge is eminently qualified, this does nothing to address the question of parliamentary supremecy. We''ll know more when his terms of reference are disclosed, but his previous assignment doesn't bode well for timely disclosure. Once more we see the chess master's obssession with removing all impediments to his march toward glory…your move opposition.

    • The issue of Parliamentary surpremecy is an important one and one that needs to be looked at in-depth, but the Afghan issue, is unfortunately only a symptom of the disease.

      These documents are obviously sensitive. There should be a trained eye looking over them before we send them out to be front page news in all the papers. Of course, the government should have taken this step months ago as soon as the motion was passed, not spend 3 months using reprehensible talking points about the Opposition not supporting the troops.

      • By allowing an 'outsider' to side track their witch hunt,
        Liberals have acknowledged that Parliament 'may' NOT supreme.

        This isn't a Liberal time-out,
        the Cons can and likely will challenge an unfavorable report by going to the Supremes.
        In our Constitution, the Supremes are the last voice in Parliamentary disputes.

        The Opps do not want the Supremes to decide if Parliament is supreme, they like weilding an assumed power they just may not have.

        • Is that why the Conseratives won't bring their Senate election bills to the SCC?

          • They don't have to, to change the length of terms, nor to have Senators appointed that had been elected by the Provinces……

      • The interesting question will be what is the judge allowed to see…presumably whatever he wants. I can't see there being much there in the way of damning stuff as far as our military is concerned…surely it's much more likely to be embarassing stuff vis vis the Afghan gov't. It's all rather puzzling…i can't see this judge looking at evidence of duplicity or dereliction of duty from our gov't and remain silent. More stonewalling is my guess, but to what end? When we get the majority we can do whatever we want?

        • Maybe it has something to do with the Govt not being allowed to offer up docs from a previous administration,
          but this ex Judge can make that request…?

          Have the Opps requested documentation dating back to 2002, when the first Afghan was detained by cdn troops?

      • sorry WDM but disagree strongly.

        1) Iacobucci is well qualified to examine the documents from the perspective of the whether the redactions made fit with the requirements of the law with respect to the general public release of the documents. but… that is the not the pertinent issue.

        2) as you say the Afghan docs are merely a symptom which is why the real issue is privalege. while Iacobucci well understands that issue it is unlikely to be part of the mandate. Team Harper is unlikely to cede control of that decision to a third party and Iacobucci already has made his point clear on that matter historically: that is for no one but Parliament to review decisions on parliamentary privilege:

        "In summary, it seems clear that, from an historical perspective, Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning. These privileges are part of the fundamental law of our land, and hence are constitutional. The courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, but have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege."


        3) so to the degree that anyone accepts that there is a legitimate role for a third party to review what is appropriately released to parliament when parliament (as opposed to the public….the latter never being a real issue here) has demanded underacted documents is to subjugate parliament's privilege and contravene Iacobucci's earlier ruling.

        Lee's motion should go forward.

  10. suppresion of information is an ongoing thing with this government

  11. Nicholson and the government are welcome to get whatever legal advice they want. I don't blame him for not trusting the opinion provided by his own department; it was based on less than a wish and a prayer.

    Nothing to do with Parliament, however, because I don't recall a vote to request legal opinions, just a motion to order the production of documents.

    • and to order them in an unredacted form, which is surely what the cons are asking iaccobucci to do.

  12. …in a dispute in …

  13. Correct. But an Inquiry itself would also be a delaying tactic, to put off issue until after next election (time to set it up, etc.). And given Gomery etc. examples, no reason Parliament can't also inquire in meantime. In fact, it should and must! And a Parliamentary Order, ignored for 84 days, is not to be delayed further, nor investigation behind it. The docs, all docs, must be turned over ASAP. Parliament must censure Govt. Stand Up For Parliament, Opposition (Iggy)!!!

    If this Iaco Gambit was necessary, why not respect MPCC a year ago? Why not ask for Iaco's help then? Or when Committee requested docs? Or when Order made, 84 days ago?! Why wait for entire prorogation, and NOW ask for Iaco the Submissive to review docs? So he'll read this one little bit, and after consideration, write. Then lengthy delay for "translation". Then push release back as far as legally possible, as with gun control. And oh look: Summer Break! Pity. Well, I guess we'll just have to wait till Fall: Oh look, election! Oh well, accountability, democracy, Parliamentary Supremacy, who needs it? I much prefer Bonapartism-Harperism, authoritarianism. Or, if Libs play along, limp-wristed collaborators. When the Parliament and democracy needed defending, who did what? We won't forget. Opposition better stand up for Parliament, or else.

    • If after all the fuss over prorogation and given the ignored parliamentary subpoena Ignatieff should fold like a cheap suit, he will not only lose all credibility on this issue, he will have demonstrated once and for all he has zero political instincts. If this should be the case, the party can't drop him down a deep hole quickly enough for my tastes. Let someone lead who wants to lead..granted i may be panicking a little early…not for the first time.

  14. Will all the documents, dating back to 2002, be forwarded to the exJudge?
    Harper can not offer the docs up, but can the Judge request them?
    Or is this a Con-only whitch hunt?

  15. Iacobucci is an officer of the court with recent expertise in judicial inquiry in this field, who at the same time is currently independent of any branch of government. If he can't be trusted to make a public-interest review and report fairly, who can, exactly? Unlike MPs, five minutes after receiving the documents he's not going to have excitable underlings wanting leak sensationally misleading excerpts, at least.

    • Sorry avr, but this is the government still trying to deny that Parliament has supremacy, and that it can order the government to turn over documents or anything else to Parliament whether the government likes it or not. This is also not a public inquiry – which is the out the Liberals offered to the government to get out of the contempt motion. This is a pesudo-consultation which the government is using to imply that it can decide what to turn over.

      The opposition parties should proceed with the contempt Point of Order. Nicholson's actions and his Conservative governments actions today show that same contempt for Parliament.

      • I'm sure Ignatieff will be sure not to have enough Liberal MPs in the House to support passage of their own contempt motion.

        It's all part of our Rubber Stamp Parliament. Once Harper thinks he has a shot at a majority, only then will we have an election.

        • Would it be a motion? the order already went out. Do they need a vote to enforce it, or can somebody just bring something like a point of order to the speaker? This isn't court, you might not have to specifically apply for a contempt order.

      • This is a gov't that refuses to be accountable or act in an accountable manner; when there's a real, authentic decision to be made they off-load it to some other body. Wanna change our national anthem? Here's the idea and we'll pass it along. Wanna see some files regarding treatment of afghan detainees? Someone else will decide.
        What's just as scandalous is that, while they eagerly look to others to take the responsibility from their shoulders, who's the first person to lambast the judiciary, senate, governor general, et al, when a decision comes out that makes them look bad?

      • Correct. But an Inquiry itself would also be a delaying tactic, to put off issue until after next election (time to set it up, etc.). And given Gomery etc. examples, no reason Parliament can't also inquire in meantime. In fact, it should and must! And a Parliamentary Order, ignored for 84 days, is not to be delayed further, nor investigation behind it. The docs, all docs, must be turned over ASAP. Parliament must censure Govt. Stand Up For Parliament, Opposition (Iggy)!!!

    • I see the government's contempt for parliament resonates with its supporters.

  16. This last-minute arrangement for a review of the documents suggests that Harper & Co. were somewhat rattled at the prospect of Derek Lee's motion that was scheduled for today. Wonder when Nicholson approached Iacobucci about doing it.

  17. An interesting story on the CBC tonight – seems the lid is starting to lift on the coverup cauldron. Stay tuned folks.

  18. LKO, given Iacobucci's previous findings as a member of the SCoC as I posted above I can onloy assume he was given a narrow – and frankly irrelevant – mandate: to assess whether past redaction is consistent with the law with respect to general ATIP requests. Otherwise he will have to tie himself in knots.

    I would urge that you do not accept a well written judgment from the Supreme Court of Canada stating that Parliament is not permitted absolute latitude in demanding that the government of the day produce documents that Parliament deems necessary to hold the government to account. The courts, not even the SCoC should be permitted to establish the scope of Parliament's privileges.

  19. Another pathetic attempt to mislead the parliament and the Canadian people by the Cons. With all due respect, the retired judge is simply a retired private individual, may be a PRIVATE lawyer retained by the cons. to save the dictator's hide for a little longer! This scam was presented to the parliament as if an impartial due legal process is being taken… Law Professor Attaran has correctly called this a 'smoke and mirror SCAM and the Canadian citizens need to know that this government and this PM have been acting as if they are above the law of the land, They are clearly in contempt of the Parliament and no amount of deception can hide the fact that sooner or later these power hungry bozos have to face the music and be accountable to the people of Canada

  20. I am a very disappointed Liberal. Mr. Ignatieff doesn't seem to get the issue – he is focusing on the inquiry about Afghan detainee's. While this is no doubt important – the supremacy of the House of Commons and the government being responsible to the elected representatives of the people is the fundamental issue here. This is not a partisan issue and it is a sad day when our elected representatives do not take a stronger stand on the issue. We have a Government that will do anything to hang on to power and is accountable to no one and an Opposition that is obsessed about winning the next election and willing to sacrifice its fundamental Parliamentary privilege in the process. I commend Mr. Lee for an excellent job and urge him to stand his ground and do the right thing for Canadians.