The Potential Costs of Going to War over the Afghan Detainee Issue

If there is one benefit of having a minority government in Ottawa, it’s that some aspect of constitutional theory actually gets put into practice. As any political science major (and law student) should know, the federal government is accountable to Parliament. Of course, in a majority government this is somewhat of an academic exercise, since the government in effect controls Parliament. But in a minority government, the executive doesn’t have quite as much of a free hand.

The Conservative government is being reminded of this as it deals with what has become known as the “Afghan detainee controversy.” A parliamentary committee is attempting to investigate allegations that the Canadian military transferred prisoners detained in Afghanistan to the Afghan authorities, knowing they would be tortured. In essence, the committee is asking the same question that was famously asked during the Watergate scandal: what did the government know, and when did it know it?

In attempting to answer that question, the committee (in addition to hearing testimony from former diplomats) is seeking reams of documents from the government. Unsurprisingly, the government has refused, citing national security concerns. In response, the opposition parties have put wheels in motion to find the government in contempt of Parliament, meaning the whole issue could eventually wind up before the courts.

Background

The government’s refusal to disclose unedited documents rests on s. 15(1) of the Access To Information Act, RSC 1985, c A-1 [ATIA], which allows the head of government institutions to refuse to disclose any records containing information where disclosure “could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities.” Section 38.13 of the Canada Evidence Act, RSC 1985, c C-5 [CEA], could apply as well, depending on whether the term “proceeding” encompasses parliamentary committee hearings. That section allows the Attorney General to prohibit disclosure of information in a proceeding for the purpose of protecting national defence or national security.

The counterargument is based on a mix of precedent and theory. The precedent comes from 1990, when the House of Commons (on behalf of the Justice Committee) asked the Solicitor General to produce unedited reports from Correctional Services Canada addressing the escape of two inmates from federal prisons. The request was initially refused on the basis that the Privacy Act, RSC 1985, c P-21, prevented the Minister from complying. Eventually, the standing committee on privileges and elections came to three conclusions: Parliament has the power to call for “people, papers and records”; the House is capable of issuing an enforceable order; and anyone disregarding that order could be held in contempt of Parliament. The Justice Committee received the reports in camera, a publication ban was put in place, and everyone was happy.

The theory is that the executive is accountable to Parliament, and does not get to dictate terms. A motion was passed in the House of Commons compelling the disclosure, and by refusing the government is in contempt of Parliament. The Speaker of the House, Peter Milliken, has been asked to make a contempt finding, and will likely announce his decision this week, after hearing submissions on the issue from Attorney General Rob Nicholson.

What About Legal Precedent?

Can the government claim the protection of either the ATIA or the CEA, or does parliamentary privilege trump those statutes? Do the courts have a role to play here? What would happen if this fight ends up there?

As Justice Binnie wrote for the Supreme Court in Canada (House of Commons) v Vaid, [2005] 1 SCR 667: “There are few issues as important to our constitutional equilibrium as the relationship between the legislature and the other branches of the State on which the Constitution has conferred powers, namely the executive and the courts.” Vaid involved a dispute between a former Parliamentary employee who challenged his dismissal on human rights grounds. The actual outcome of the case is immaterial for present purposes, but some of the comments Binnie J. makes about the proper place of the courts and of Parliament are interesting and relevant.

For instance, his characterization of the House of Commons as “the grand inquest of the nation” might support the view that Parliament can call for any documents it sees fit. Of slightly more legal interest is s. 4 of the Parliament of Canada Act, RSC 1985, c P-1:

4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise

(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and
(b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.

What this means is that the rights and privileges enjoyed by Parliament need to be defined by reference to those enjoyed in the United Kingdom. As you might expect, this is easier said than done: nothing much has been written down over there.

Nevertheless, Binnie J. laid out some guideposts for determining when a claimed privilege might exist. He held that parliamentary privilege includes the “necessary immunity that the law provides for Members of Parliament … in order for these legislators to do their legislative work.” Necessity is to be read broadly, and defined with reference to what the “dignity and efficiency of the House” require. (Binnie J. later draws from a leading text and defines “parliamentary privilege” as “the sum of the peculiar rights enjoyed by … Members of each House individually, without which they could not discharge their functions.”) Finally, once a category of privilege has been established, it is for Parliament, and not the courts, to decide whether the exercise of that privilege is appropriate.

Conclusions

It doesn’t seem to be too much of a stretch, starting from the proposition that the executive is accountable to Parliament, to say that members of the House must be able to review unredacted documents in the executive’s possession in the course of holding it to account. Without being able to review the documents, there is no way for the committee at the heart of the investigation to determine whose story should be believed. In this case, it should be for Parliament to judge what is injurious to national security, not a government advisor. Indeed, Binnie J. appears to endorse this reasoning in Vaid:

In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency. (Emphasis added)

Based on all of this, my advice to the government would be to watch out – by defying Parliament in this way, the government is on course for some extremely rocky shoals, and the courts aren’t likely to be of any help.

It’s possible that the Attorney General knows this already. This past week, in an attempt to mollify the opposition parties, the government laid before the House all of the documents that had been requested — except that they were mostly blacked out. Earlier this month, it was announced that former Supreme Court justice Frank Iacobucci would be brought on to advise the Attorney General about what information might be injurious to national security. This was a play for time, and a deflection from the real issue.

First, and without any disrespect, Justice Iacobucci has demonstrated in his Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmed Abou-Elmaati and Muayyed Nureddin that he is much more sympathetic to claims of national security privilege than someone like Justice Dennis O’Connor was. Justice Iacobucci is a respected jurist, but in this case, his determination should be given no more weight by the public than the determination of any other government advisor.

Second, the real issue is whether Parliament is entitled to these documents in any event, regardless of national security claims. There is strong support for answering “yes” – if the House decides it is entitled to them, then it is entitled to them. The Conservatives should wake up to this sooner rather than later, and quit threatening the principles underpinning government accountability.