'The government is obliged' - Macleans.ca

‘The government is obliged’


Parliamentary law clerk Robert Walsh tells Ujjal Dosanjh that Parliamentary committees are essentially entitled to whatever they seek.

While uncensored papers may present some concerns about national security for the government, “at the end of the day, the government is obliged to supply to the committee whatever information it requests in the performance of its mandate from the House [of Commons],” parliamentary law expert Robert Walsh says in a letter to defence critic Dosanjih.

Walsh’s letter is available here. This would seem to correspond with a recent majority opinion of the Public Accounts Committee.


‘The government is obliged’

  1. Well, duh.

    The fact that people who purportedly self-identify as "Tories" would pretend otherwise is a little absurd.

  2. I just want to say that I have little doubt about Ussal Dosanjh's Credibility, and He is in my opinion, the biggest shaker and mover on the issue. And the Issue here is one of Credibility.

    He also had this to say: " The Conservatives are making this absurd argument that Parliament, in passing Section 38 of the Canada Evidence Act, barred itself from seeing uncensored documents in violation of its own constitutional rights ."

    Canadians have a Right to know the truth, and a Left to help us find it.

    • " Canadians have a Right to know the truth, and a Left to help us find it. "

      The problem is that when the Right raises its right hand the Left has to say: no, your other right hand. ;)

  3. The Harper Tories aren't great respecters of law.

  4. Hi ho, hi ho, it's off to court we go.

    • No it shouldn't come to that. Litigating the heck out of this will only drag on the process. The Gov should give up the documents now, get it over with

  5. The respect of the CPC for Parliamentary procedure – indeed for the law – is miniscule (except of course when they are using the law to shut someone up outside of Parliament!)
    No doubt they will attempt to run out the clock on Parliament and hope the public forgets over Xmas (like they did last year) what all the fuss is about!
    Peter Donolo better be on the ball for the next few weeks and Mr. Ignatieff better cloth his gonads in steel – because it's going to be a bumpy ride – Son of Coalition coming up!

  6. Parliamentary committees are essentially entitled to whatever they seek.

    That's nice, but without some method of compelling the government to give them whatever they seek it's meaningless.

  7. Haven't they got some kind of broad-axe-toting officer of Parliament who can function as their bailiff? Or the modern equivalent?

  8. The Not-so-Gentlemanly-Usher of the Chainsaw.

  9. YES! Vote of non-confidence + election!

  10. The Speaker is broadly responsible for the observation and interpretation of Parliamentary rules and traditions, so it's possible this sort of question would fall under the mandate of his office. I don't think he's ruled or been asked to rule on this particular question, though.

    (And while axe-toting in parliament is generally frowned upon, they do have this guy who totes a really sweet Mace.)

  11. So what is the poena implicit in a committee's power of subpoena?

  12. If the opposition parties were serious, they would have a vote of non-confidence.

  13. If a person refuses a subpeona or summons of a committee, the committee can report to the relevant House, and if the report is adopted, the Speaker is obliged to find a contempt of Parliament. In that case, it is open to the Speaker to order the Sergeant-at-Arms or, I think, the Usher of the Black Rod in the case of the Senate, to apprehend that person and bring them before Parliament. The last time this was done in Canada was, I believe in 1913, when the Sergeant to the train to Montreal to haul some fellow before the Commons. Parliamentary privilege surpasses common and statute law, so individuals detained by authority of Parliament have none of the normally associated civil or Charter rights. In theory, although it would be fairly improper, a House could throw anyone in the basement for as long as the session lasts.

  14. man i wish we had a speaker that was not just in for the popularity on the cocktail circuit.

  15. Agreed. And it would be a fully justified move, at least in my opinion.

  16. Thank you very much, that was very informative.

    So . . . could the House not constitute itself as a judicial inquiry of sorts, using the Sergeant-at-Arms to force the Government to obey its subpoenas?

    Not that it's particularly relevant here, as the Defense Committee is CPC-dominated.

  17. I agree too…would take some balls but though and a huge risk.

  18. I'm not sure what you're looking for that a judicial inquiry would have that a committee wouldn't, exactly… can you be more specific? A committee already has the powers to compel the production of documents or attendance of witnesses. It is essentially always a judicial inquiry, albeit much less organized and in many cases less *effective*, in any sense that I can think of. The only real difference is that an inquiry is headed by a judge, which has its obvious advantages concerning the already mentioned organization and effectiveness, and that a judicial inquiry is limited by the scope of its terms and by statute, common law and Charter constraints.

  19. I agree with you that it would involve a huge risk to vote non confidence, but unless the opposition parties are willing to do that it is very difficult to believe that the sense of "outrage" by the Liberals and NDP is anything other than political theatre.

    Norman Spector has a similar take in his Globe online blog today in which he points out that while our ambassador friends were right to criticize those who attack Colvin on personal grounds (as opposed to attacking the substance of his testimony, which can be legitimate), the retired ambassadors lose considerable credibility when they fail to criticize Colvin for not blowing the whistle sooner if he truly believed something wrong was happening.

  20. Why does it take a vote of non-confidence to get the govt to release documents that a duly constituted committee of Parliament needs to do its job. It's not as if a finding of blame for the govt is automatic…and this would leave all of the infomation in the govt's hands if an election were to result…this would be a dumb move on the part of the opposition…i can see the Tory slogans now…"WE" support the troops"!!

  21. In other words, you do not have confidence in the Canadian people to do the right thing?

  22. Nice try. Misdirection is i believe the correct term. There is a sitting committee that is perfectly capable of making at least an initial assessment…if they are allowed to…there is also the issue of thwarting the will of parliament…is Harper to get an election everytime he is called out on something? I somehow doubt you'd be so keen if Harper wasn't riding so high in the polls right now. There is a process, let it work.

  23. Your description certainly seems accurate to me, concerning the efficiency of an inquiry when it comes to enforcement. A judge's order is a lot more direct, and more certain to be made.

    It also seems to me that talk of no-confidence is beside the point. In a minority situation, a vote to enforce a subpeona or summons could be passed by the opposition without the need to resort to making it a no-confidence vote. That's really quite secondary. Parliament may want to do so; it may not. That's really a political consideration, but entirely separate from simply enforcing Parliamentary power.

  24. So if the Defense Committee did feature a majority of Opposition MP's, they could (with a little cooperation) force the Government to cough up the documents? That's quite reassuring. Why don't they use a different committee to subpoena them? Like, say, Justice & Human Rights? It's 6-5 Opposition-Government there, not counting the Chair.

  25. An opposition-majority committee would be much more likely to send a report to the House on the matter, which would still require a majority of the House to adopt it, but again, the opposition numbers are sufficient, if enough of them concur. As to why not using a different committee, I imagine part of the matter is propriety. You'd need the *appropriate* committee seized of the matter. Presumably Justice and Human Rights could be one such committee in this case. I'm not in a position to answer whys, though. I'm just discussing the legal possibilities. (And no, don't read that to mean that I have some special knowledge I'm not imparting. I just prefer to stick to talking about the law. Everything else gets messy.)

  26. Thanks for your help, much appreciated. I'll ponder if the Opposition doesn't really want the documents or is just badly disorganised.

  27. I would keep in mind as well that most MPs don't have a deep grasp of parliamentary privilege and powers, evidenced for example by the need to have the Law Clerk draw up a memo stating the bleeding obvious.

  28. Vote of non-confidence in the House? Would be nice to have an election about democracy instead of the hidden agendas of stupidly partisan but barely different parties.

  29. Although I don't know much about these things, it seems to me that in the face Conservative MPs boldly lying about parliamentary privilege, having the ability to cite an objective and credible opinion is much more useful than a shouting match over which band of MPs is in the right – whether the wrong ones know they are wrong or not. Further, In this instance it seems more a case of most of the public failing to grasp parliamentary privileges, hence the government's ability to fail to oblige those privileges with little or no consequence, and, again, being able to point a credible non-partisan source on that privilege is helpful in the arguments.

  30. Vote of non-confidence in the House?

    Oh hell no. I don't think I could take yet another round of jackass pundits braying that Canadians don't want an election.

  31. Well, I'm not sure where I'm going with this, but it seems to me that refusing the compulsion of a judicial inquiry would have immediate, rather severe consequences, in that the judge would find the refuser in contempt and order the police to force compliance; whereas a House committee would have to first report to the House, have its report on a refuser's contempt adopted, get the Speaker to act, and then send out an officer of Parliament who hasn't been used in that capacity for nearly 100 years. So the machinery, while potentially very effective, is extremely rusty. Perhaps if some Parliamentarian had the guts to oil it up, and to lead the Opposition in forcing the House to accept a committee's report, you could actually use the subpoena power to practically hold the Government accountable in default of a non-confidence vote. But maybe that's asking a lot of an exceedingly fractious House — and anyway the CPC dominates the Defense Committee. But I wonder if mechanisms like the one you've kindly described won't be renewed, if the Minority Government Era continues indefinitely.