Former Supreme Court Justice Frank Iacobucci was enlisted Friday to investigate whether the release of documents relating to Afghan detainee torture would cause an “injurious” effect.
The release of these documents – which could prove damning if they show government complicity in torture – was widely cited as being the underlying reason for PM Stephen Harper’s most recent prorogue of Parliament.
The unsettled issues here seem to be the following:
- Is this, as critics allege, simply a transparent effort to hide from opposition pressure to release the documents?
- Will Iacobucci actually be given all of the relevant documents?
- Should Iacobucci fear personal reprisal – à la Richard Colvin – if his findings do not please the Conservative government?
- How binding will his decision be, given that it’s not a Supreme Court reference?
- If Iacobucci decides that releasing the documents would be injurious, is a Parliament majority vote to release them nonetheless binding on the executive?
Iacobucci previously led an independent commission from 2006 to 2008 investigating Canadian government involvement in the torture of three Arab-Canadian men in Syria and Egypt. He found that CSIS and the RCMP indirectly contributed to wrongful detainment and torture of the individuals.
I’m not entirely clear on what the law is with respect to the legislature’s entitlement to documents from the government. I imagine it is quite broad, but is it unlimited? Are there limits? If there are limits what is the test? Also does Parliament have mechanisms whereby even if the documents are handed over they remain confidential and don’t make it into the public realm? If anyone knows the answer to these questions I’d like to know because frankly, aside from political posturing (which doesn’t tell you much), I don’t know which side to take.
KC, a while ago there was a panel on prorogation at my school. The impression that I got was that there is no precedent in Canada for a showdown between Parliament and the executive. It depends whether you believe in responsible government (government as popular proxy) or representative government (government as elected but not accountable for every action). One panel member made reference to a precedent in Australia where the Prime Minister was forced to comply with Parliament, but I’m too tired to look that up now.
The way I see it is that Canada is fundamentally a responsible government. We do not have a US-style “executive”: the PM and cabinet are drawn from Parliament usually, subject to Question Period scrutiny, obedient to majority House votes, and responsible to the citizens. In this interpretation, a PM refusing to comply with a majority vote could be removed for contempt. But this is just conjecture.
I seem to remember an incident in which sensitive information was released to a parliamentary committee dealing with national defence, but not to all MP’s. I think that it had something to do with submarines, and I think that Bill Blaikie was on (chaired?) the committe. Can anyone clarify my memory?
Maybe something like that would be a good solution here. I’m not sure if the public is entitled to review every bit of information. We have become accustomed to accessing everything that we want to know/see all the time. But, I’m not sure if that’s a good way to deal with every case.
I would feel comfortable trusting a limited number of responsible parliamentarians to review the material to see if there is anything there to reasonably complain about.
The issue is not the Government withholding documents from MP’s. It’s the law that is STOPPING the documents from being shown to MP’s. Secret documents don’t just rely on the proper security clearance, they also require the “need to know” and if you haven’t got one….you don’t get the other.
as far as I know, many MP’s don’t have the required security clearance. Have the RCMP do background checks on MP’s and provide the required clearances if the background checks pass.
On another point though…..do you really think it’s a good idea to provide documents to people (regardless of their status as MP’s) who haven’t got the best interests of the country at heart?
Can you imagine the anti-semites in the NDP reading a document about MOSSAD assistance with DND or CSIS investigations? How long do you think it would be before these mp’s would be calling a press conference? What about the seperatists? Do they get to see everything?
What if we elected an MP that was completely hostile to Canada? (would most likely come from Toronto or Quebec)
Be careful what you wish for.
Here’s a great comment by Prof. Schneiderman at UofT Law. Heavily Diceyan.
http://www.law.utoronto.ca/visitors_content.asp?itemPath=5/5/0/0/0&contentId=1988
Bill was a member of the Defence committee but not the chair. They looked into the subs we purchased from Britain.