‘The national interest’


The Department of Justice responds to the Parliamentary Law Clerk’s opinion of what Parliamentary committees are entitled to.


‘The national interest’

  1. From page 2:

    A parliamentary committee is certainly not a court; nor is it "a body with jurisdiction to compel the production of information."

    That latter clause is simply a statement of opinion and begs the question. Why on earth would a House committee not be "a body with jurisdiction to compel the production of information"?

    The author of this memo is effectively giving the Government carte blanche to designate any information it chooses as information pertaining to national security and "the national interest." Crown privilege, for instance the absolute secrecy of Cabinet minutes, is something else entirely. It's basically a big "f*ck you" to the authority of Parliament.

    • You've certainly hit on the most astonishing contention in that letter, Jack, but I'd also like to point out that the "Assistant Deputy Minister, Public Law Sector" is taking quite the condescending tone to the little law clerk.

    • I think that "a body with jurisdiction to compel the production of information" would consist of a body in the judicial branch, such as a judge, or a police officer with a warrant. A committee is a group of MPs. It gives them no more jurisdiction than an individual MP.

      • From the House of Commons' own website, its procedural text has the following entry:

        Well I would copy and paste but for some reason I am limited compared to others as to how much text I am allowed. Here's the link: http://www2.parl.gc.ca/procedure-book-livre/Docum

        Can they compel the contents of a PM's desk drawer? If they did, I think that would be the least of his problems compared to having apparently lost the confidence of the House.

        • You are limited in text length when you first post, but then if you edit the comment there is no limit.

          • Thanks for the hint/work-around

        • Good link. http://www2.parl.gc.ca/procedure-book-livre/Docum

          The details are all there in the committee section under "to send for papers and records".

          Since committees do not have the disciplinary power to sanction failure to comply with their order to produce records, they can choose to report the situation to the House and request that appropriate measures be taken. Among the options available to the House is to endorse, with or without amendment, the committee's order to produce records, thus making it a House order.[168] In the past, the House has sometimes found persons failing to comply with an order to produce records guilty of contempt of Parliament. On occasion, it has even exercised its disciplinary powers.[169]

  2. It conveniently ignores the reasons put forth in Mr. Walsh's letter as to why a committee *is* considered to be such a body.

    Also interesting is the easily dispellable assertion that "separation of powers" is a constitutional principle, which it never has been in a Westminster style system. Supremacy of Parliament is the applicable principles. Separate and equal branches of government is an American principle and not at all applicable in Canada.

    This response letter is somewhat appalling.

    • Separate and equal branches of government is an American principle and not at all applicable in Canada.

      That was my strong impression too, and I'm relieved to hear it confirmed by someone who knows.

      I was also shocked to hear the Dept. of Justice back up its theoretical refusal to comply with House committee subpoenas in terms of ministerial responsibility. I believe deeply in the principle of ministerial responsibility and in ministers' accountability to the House. But when a Minister himself refuses to accept his responsibility and effectively denies that he is accountable to the House (by stonewalling and outright lying), other measures should be taken if possible. Moreover, the question at hand is not the compulsion of testimony from officials but the production of documentary evidence.

      Of course, it's all a bit moot, since all Parliament has to do is pass an Act allowing its committees to subpoena whom they please, regardless of what earlier acts say. The onus is on the committee, and Parliament generally, to act. If it does not act now, when the Opposition parties hold a majority of seats, when will it?

      • "Of course, it's all a bit moot, since all Parliament has to do is pass an Act allowing its committees to subpoena whom they please, regardless of what earlier acts say. The onus is on the committee, and Parliament generally, to act. If it does not act now, when the Opposition parties hold a majority of seats, when will it?"

        A very good point, there.

        • Ahem,

          Begore we get too carried away,

          … it is all a bit tricky, unless you somehow believe that there is no legitimate national security information in the redacted documents.

          I mean, do you really want the Bloc deciding whether or not some piece of information will harm Canada's relationship with another country, or will reveal a source? In this and in avery future case?

          Because that's exactly what your asking for here.

          • That claim -that the BQ are potential traitors – is as disgraceful as the CPC's Laurie Clerk claiming the Canadian Forces know only the CPC has their best interests at heart.

          • Political concerns are beside the point of the law, which is that Parliament and it's committees have the power to compel the production of whatsoever they wish, and that Ministers must obey Parliament, in whatever form it's constituted. That someone doesn't like or trust a particular MP or Senator or group thereof could never be a valid argument that Parliament couldn't compel the production of whatever it wished.

          • There's going to come a time when the Bloc controls a Parliamentary Committee completely on their own???

            If the Bloc ever holds a majority in the House of Commons I think we've got way bigger problems to deal with than whether or not a Parliamentary Committee can subpoena unredacted documents!!!

          • Please don't remind us that these documents could have been in the hands of Maxime Bernier at some point. There are more dangerous organizations in Canada than the Bloc.

  3. Er, I meant

    "Before we get too carried away…"

    • It was kind of Irish the first way. I liked it.

  4. "A fourth principle is the separation of powers." Eh! Did someone move the 49th parralel since yesterday? Or is the just another facet of Harper's scheme to further decentralize the country?
    Pariliament is supreme, but apparently some parts are more supreme than others. At the top…his excellency the right honourable S.Harper, head of the govt, head of the military and lord of all he surveys
    …ring kissing by appointment only… available on short notice for tax payer funded PR gigs…ps…can supply own piano…[singing gratis].

  5. This is Nixonian and Cheneyesque. Why is Harper, aka TheStrategist, so intent on blocking access? Is it because he's afraid of what might be out there, or is it because he knows what's out there, or is he just being himself?

    • That's what I find so odd…I think he's just being himself. I think they pick things to battle on that they think will blow over – most of it usually does because the media gets bored (did we ever get the riding-level stimulus data?)

  6. The law clerk responds!

    "In my view, your legal opinion fails to recognize the constitutional function of the House of Commons to hold the Government to account and does not adequately address parliamentary privilege as part of the constitutional law of Canada," House Law Counsel Robert Walsh writes in a faxed letter dated today to Carolyn Kobernick, assistant deputy minister of DOJ's public law sector. "Your opinion engages peripheral legal issues to defend the withholding of evidence from the Special Committee, disregarding its powers and authority."

  7. Pah.

    I didn't suggest that they were traitors, only that given, given the power (or shared power, depending on how this new law is structured) to make decisions regarding the Canadian national interest, they might put Quebec's interest first.

    Don't be so precious.

    • By your measure, you should be outraged at how Mr. Harper's party has put the interest of Alberta's O&G industry ahead of the nation's interest — why else would he allow our industrial, energy and environmental policies to be drafted on flights between Calgary and Washington, DC?

      (Just kiddin')

    • Yes, actually.. you did. Because they're elected to the gov't of Canada, and swear oaths on becoming MPs.

      I mean, someone could equally turn around and suggest that Reform CRAP Conservative Harper's party might disseminate information against this countries national insterests if it was in the interests of Suncor, and the cries of discrimination and shameful that would bring would echo across the country.

      It's disrespectful, distasteful, and damn close to libel. The BLOC are elected MPs like everybody else. If you don't have enough respect for the judgement of your fellow Canadians, I really don't see why you remain here.

        • Actually, I'm not. I'm sick and tired of bigots coming just shy, or sometimes not even, of accusing elected officials as traitors to this country. This speaks of so much disrespect to the people who elected them it ends for me any confusion about why they would choose to elect separatists or the like.

          • I'll ignore the bigot charge, I'm a big boy.

            But let me suggest that you are mistaken on a couple of key maters:

            1) There is no oath compelling MPs to keep state secrets. There is no penalty for revealing state secrets. Why? Because Parliamentarians, generally, aren't privy to such secrets.

            2) The Bloc is not "the government". The party with the plurality of seats gets to form the government, and currently that's the conservatives. Parties that do not form the government do not, in our system, have access to national security secrets.

            3) In most western democracies, the proposition that every last member of the parliament or legislature would have access to sensitive national security information, just because they had been elected in their local riding, would seem absurd.

            4)The Bloc has publicly stated, many, many times, that their first loyalty is to Quebec, and that they put Quebec's interests first. I take them at their word. I mean no disrespect to them. I admire Serge Menard, for example. But the interests of Quebec seen through the eyes of a sovereigntist, are different than those of the whole country. i just through that as an example. The same could be said of someone elected from an Alberta or Newfoundland independence party (and it's not impossible that their could be such parties with MPs in the future).

          • And now a response to your issues:

            1) Well, actually the Oath of Allegiance implies keeping state secrets by way of fealty to the Queen. But regardless, like anyone else in government, MPs would gain various levels of clearance, depending on their duties. I would think the committee would have sufficient clearance for this.

            2)While we often call whatever party with the most seats the government, in reality it's a lot more than that. All MPs are part of the government. You may not like it, but them's the facts.

            3) Agreed. But that's not what is being asked for. What IS being asked is that members of a specific committee, who by the nature of it's work, must have the proper clearance to view sensitive information, get to see the uncensored reports.

            4) Irrelevant. Stephen Harper has argued for Alberta separatism, has campaigned on changing the very nature of Canada, and last year one of his key ministers publicly advocated sedition (check quotes from Baird). Perhaps based on that the Conservatives should not be allowed to see sensitive material either.

          • Sorry, wrong on too many counts to respond to.

          • If you say so – and you do.

    • and Stephen 'Firewall' Harper might put Alberta first, so what.

  8. This Assistant Deputy Minister in the DoJ may have misunderstood the term "separation of powers" in the context of the Canadian Constitution and Parliamentary Law. In Canada, such a separation generally refers to functional responsibilities rather than competing, co-equal authorities.

    For instance, the "executive" is reigned in by the notion of Ministerial Responsibility … the elected MP, when in Cabinet, becomes functionally responsible for the actions of his or her Ministry, an arm of the executive. This is a functional separation of powers, not an actual one, as the Minister also remains an MP within the legislative realm at the same time. They have functional legislative responsibilities as MPs, separate from their functional executive responsibilities as a Minister. The absence of any true separation of powers is evident every time a cabinet is shuffled … the ex-Ministers remain MPs, functioning in Parliament, but loose their functional responsibilities for Ministries.

    Similarly, this ADM may also have confused the functional separation of the courts, in terms of judicial review for instance, with the Constitutional reality that Parliament is, for all intents and purposes, THE LAW in a Westminster system. Sadly, I think some of the commenters are right in assuming that the Justice Department has become infected with American notions of the Separation of Powers, where branches of government have functional separations but are also Constitutionally co-equal. In Canada, Parliament is supreme, not co-equal to other institutions. Full stop. Therefore, this notion of a separation of powers as suggested by the ADM in her letter is poppycock. She shouldn't write her briefs while watching Law & Order.

  9. The argy-bargy between Department of Justice and Parliamentary Law Clerk is great example of why our constitution is equally maddening and brilliant. This is an important issue and you would think some strict/clear guidelines would have been established after all these decades.

    Does anyone know if Supreme Court can get involved and decide issue or do we just leave it up to bureaucrats/lawyers to sort it out.

    And claiming exec privilege where there is none seems to be going around. White House claimed separation of powers to stop its social secretary from testifying about a party last week.

    • The Supreme Court has no jurisdiction. A matter of parliamentary law.

      • Wrong again, Scott:

        The collective privileges of the House of Commons and the individual privileges of its Members are not unlimited. They are constrained by the limits put on them by the Constitution…. It is the prerogative of the House to determine how it will exercise these privileges and if it wants to insist on them or not.[95] Given that the privileges enjoyed by Parliament are part of the general and public law of Canada, the courts must judicially take notice of, interpret and defend these privileges as they would any branch of law.[96]

        It was thus inevitable that the courts would become involved in determining questions related to parliamentary privilege. Since the effect of the assertion of privilege could result in certain functions being shielded from review by the courts, the courts had to balance their role to apply the law with the constitutional freedom of Parliament to act independently and without outside interference.


  10. Except the whitehouse is on firmer ground, since separation of powers actually is written up in their system.

    • I don't want to debate merits of WH claim but you also make my point. At least Americans have something written down to guide them.

      In comparison we get Canadian version of kremlinology – Diane Davidson, and many others I am sure, opining on what they think "to send for persons, papers and records" means and use Sections from the Bill of Rights of 1689 in their reasoning.

      • I don't think it's too hard to decipher. "to send for persons, papers and records" speaks for itself. That our Executive is part of and responsible to – Responsible Government, remember? – makes it clear that it is subservient to it when the majority say so. So that must be the key – most executives enjoy a majority and woudl rarely be under threat of the Hosue of Commons turning on them. Minority Government has many facets to its complexity. Looks like Christmas keeps on giving when it comes to our constitutional governance.

  11. Do you know who does? If neither me nor the supreme court can make a decision here, who can?

    • Parliament I would presume – in this specific case, the Speaker.

          • sorry should have capitalized Jack. but exactly.

          • Oh, sorry, I was just agreeing with you. You wouldn't have a link about the accounting officer reform, would you? I'm curious to know more.

          • this is the second time, that the current government has attempted to direct Parliament on how to conduct parliamentary operations that I am aware of (formally as as opposed to just the normal shenanigans). The other was in the implementation of the accounting officer reform last year through the PCO, which Ned Franks and others have written about.

  12. It seems to me that the MPCC was established for this very purpose: to provide accountability, but protect soldiers and our national interest from potentially harmful disclosure. They are part of the military with special clearance to view precisely this kind of information for precisely this purpose.

    And yet, the Conservatives have attempted just as much stonewalling, witness silencing, story changing, document withholding, document redacting and covering up with the MPCC as they have with the Parliamentary Committee. In fact, the Parliamentary Committee only got involved because of the Conservatives attempt to cover up and escape any accountability.

    So to now claim it is all about "national interest" and "security" completely ignores how we got here in the first place.

    • Precisely, and especially when we have clear evidence that the Department of Justice was redacting for purposes other than National Security, or privacy considerations, or international agreements.

      In fact I'd say this is exactly the worst-case scenario envisioned and that vested committees with unlimited powers to compel people and documents in the first place. Our Constitution is the most fabulous document ever.

      • That's an interesting point. We've seen some of the stuff that was previously redacted. Often, "this material was redacted for national security reasons, or other reasons of paramount interest to the nation" sounds great right up until the moment you see what was redacted. Often, it's less convincing after the fact.

      • Well put. And I think it's the only way of enforcing ministerial responsibility. We seem to think that ministerial responsibility is just a nice thing that a sweet little dutiful minister will fulfill — and perhaps there are Catonian ministers still out there who would fulfill their duties according to conscience alone. But, practically speaking, people like Mackay will only act properly if the alternative is worse: in this case, having their whole briefing book subpoenaed and themselves shot out of a cannon while wearing a beanie. Once that's the alternative, Question Period will cease to be a circus.

        • Any idea how we can go about getting that cannon and beanie thing passed into legislation, Jack?

          Sounds like a fine idea to me.

  13. Evidently the two parliamentary counsels agree. But this has long been a contentious issue, and by convention, national security information is never provided to these committees.

    So parliament can pass a law to clarify this, if it dares to.

    • Well, it's awfully funny for someone to claim a committee is “certainly not… a body to compel information” when that's precisely what the bloody thing exists to do. It's like saying a can opener is certainly not a device for opening cans.

      • It may be a hand-operated appliance, but it is certainly not an appliance.

      • I think the key word is "compel". What are the limits? Can they ask for an individual's appointment book?

    • So, apparently, Parliament needs to pass a law saying, essentially: "Remember when we gave all those powers to Parliamentary Committees? Yeah, we actually meant that. Sorry for those of you who thought we were just kidding."

      Though, will Parliament "dare" to pass a law that says that the government must respect the powers Parliament has already given to Committees? If the government refuses to acknowledge powers that already exist, can Parliament dare not call them to task for it???

      • Well,

        Legislation seems to be a pretty reasonable way to resolve a longstanding conflict between DoJ's advice on this issue, and the views of the Parliamentary law clerks. This has been brewing for a long time.

        On the other hand, I suppose we could merely defer to the experts here on this blog…

    • ooooh if it dares to, what is this the opening to a tacky horror flick or just normal high school bs.

  14. From my understanding I think even the Government recognizes that the committee, by the letter of the law, could get the documents, but the argument on national security suggests that they do not trust the opposition to keep it secret. So, I have a question of curiosity,

    What if the members of the committee were given full access to the document under the condition that they could not directly or indirectly reveal its contents or make any reference to it except within committee. Further to this, the committee would not be able to open its door's to the media. Full access, they can do their work, no public disclosure. Would this be a win? Would it even be close to a reasonable compromise?

    My example above may be somewhat unreasonable, but it does seems to me to be the crux of the concern regarding national security. If we assume that the opposition will indeed want to make hay of the matter by revealing details to the public, then we have a potential violation of the National Security Act.

    • As I noted above, the MPCC has this kind of clearance and confidentiality obligations, and was set up for exactly this purposes – to investigate without concern for security breaches.

      And yet Harper redacted and blocked witnesses and refused to produce documents with them… which is in fact WHY the committee had to get involved.

      The security claim is a smokescreen.

  15. it is not a matter of sensibilities, i just think it is funny hat one would position it as parliament 'daring' to assert is primacy.

  16. You seem to be not at all bothered by the propect of the executive not being answerable to parliament.

    • Au contraire.

      It's a vexing problem. My point is that Parliament has the power to fix this through legislation.

      It's a little much to expect the Department of Justice to suddenly reverse a position it has taken, oh, for the last 50-odd years, just because some Maclean's Blog readers, and contributors, just became aware of it.

      • Sorry, on further reflection, that last comment was unduly snarky of me.

  17. The compromise would have been to tell the truth in the House. We are playing way past that now. The violation, if any, of national security will be the result of the minister's contempt for Parliament. Anyway, there is NO violation of national security that could compare to the violation of our constitution by elected officials.

  18. That'd be great if you have a spare moment, thanks! My email address is given on my website, which you can see in my ID profile.

  19. Any real Tories with any actual principles would recognize that any further delay after Parliament's vote today is straddling a line somewhere between subversion and treason.

  20. "The Department of Justice has great respect for the work of parliamentary committees …"

    This sounds like its from a template for responding to complaint letters from the public, and is more than a bit condescending.

    Perhaps the clerk could wirte back andlet the Assistant Deputy Minister of Justice that the D of J is also governed by the rule of law, and that rule comes from parliament, not whatever cabal of regressives happen to be trying to prevent accountability this week.

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