December 19, 2009
Editor’s Note: Although this is not directly about education, it is about the very rule of law in a parliamentary system of government. The actions of this government in refusing to obey the will of Parliament is a threat to the principles which underlie our system of governance and thus ultimately to our system of education. This piece by Reg Whitaker describes a means by which the Harper government can avoid a crisis and so is a must read for all concerned about the nature our democracy. It is shared under the terms the common good. The original can be read HERE (Toronto Star December 18, 2009)
Fresh talk of prorogation only feeds suspicion that the government has something to hide
While Canadians take time off to celebrate the holiday season, there is another potential constitutional crisis looming in Ottawa. The House of Commons has passed a motion requiring the release of unredacted documents concerning the Afghan detainees to the committee hearing the issue. The government has refused, setting up the possibility that it could be found in contempt of Parliament. If the executive and legislative branches of government were to come to deadlock, an unprecedented constitutional crisis could be precipitated.
It is only a year since the last constitutional crisis, when the Liberals and the NDP tried to form a coalition government, and the Governor General granted Prime Minister Stephen Harper’s request to prorogue Parliament to stave off the defeat of his minority government. Already Ottawa is rife with rumours of yet another prorogation, with no return until after the Olympics. How many times can Harper get away with closing down Parliament whenever his government is threatened?
The government can avoid this crisis quite simply. It can comply with the request of the House. Yet it seems unwilling to do so.
Government ministers have asserted that they are bound by the Access to Information Act. Section 15(1) states: “The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which 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.” They argue that material redacted from the documents would cause harm to Canadian military and diplomatic interests if disclosed.
It is no wonder that the Conservatives are taking this tack. It pictures MPs endangering the safety of Canadian troops. Indeed, the Conservatives have not shrunk from impugning the patriotism of their opponents. Polls indicate that the public is largely skeptical of the government’s position. They should be.
There is a parliamentary precedent for handling just such a situation without precipitating a crisis. In 1990, the House of Commons, on behalf of the justice committee, asked the solicitor general to produce unredacted reports provided to Correctional Services Canada concerning the escape of two inmates from federal prisons (one of whom was the notorious murderer Allan Legere). This was initially refused on the grounds that the minister was prevented by the Privacy Act from complying.
The standing committee on privileges and elections advised that Parliament has the power to call for “people, papers and records”; that the House could issue an enforceable order; and that anyone disregarding that order could be cited for contempt of Parliament. The House unanimously called upon the minister to provide the unredacted reports to be received by the committee in an in camera session, under terms including a ban on publication of any information protected from disclosure under either the Privacy Act or Access acts. The minister complied and, as it turned out, the committee concluded that the government had not, as first feared, been trying to cover up any impropriety.
In the present case, the government could provide unredacted documents to the MPs under a similar condition of confidentiality. National security would not be compromised. Committee members would no longer be at the absurd disadvantage of not having access to the documents that were contested before it by diplomat Richard Colvin and the public servants and generals who were called by the government to undermine his credibility. After all, the retired generals are no longer in government service, yet they were given full access to the documents, on the basis of which Gen. Rick Hillier termed Colvin’s claims “ludicrous.” Why should the elected representatives of the people be kept in the dark while trying to assess these conflicting claims?
There is another aspect to consider: Just because the government claims information disclosure would harm national security does not make it so. The law provides for review of access decisions by the Federal Court. Justice Dennis O’Connor’s inquiry into the Maher Arar affair ran into disputes with the government over what could be published in its report. Material was withheld from publication on grounds of national security confidentiality, but the commission appealed to the Federal Court. Federal Court Justice Simon Noël reviewed the redactions and ordered the release of much of the excluded material, with no harm to national security. In fact, it became apparent that some of the redactions had no basis other than preventing embarrassment to government agencies.
If the parliamentary committee were to receive complete documents in camera, it might decide to refer redactions it found questionable to the Federal Court. In this way, the public might eventually gain a better appreciation of the facts.
The government’s refusal to consider a reasonable accommodation with the parliamentarians is highly suspicious. Suspicions grow when we consider that it has stonewalled requests for documents from the Military Police Complaints Commission, whose investigation of the Afghan detainee issue actually led to the calling of the parliamentary inquiry. Yet the members of the commission are fully security cleared. Worse, the government has refused to renew the term of the MPCC’s chair, who had initiated the inquiry. Suspicions grow further when the government adamantly refuses to consider calling a public inquiry into the affair.
If the Prime Minister is actually considering proroguing Parliament in a desperate attempt to keep the lid on, suspicion will turn into certainty: This must represent a cover-up of serious wrongdoing.
There is no reasonable explanation of why the Harper government has gone to such lengths to suppress these documents, other than fear for its own political well-being. If it wishes to allay such suspicions, it can take up any of the available opportunities to provide transparency without endangering national security. If it does not, the public will have to draw its own conclusions.
Reg Whitaker is the co-author with Stuart Farson of Accountability in and for National Security, a study for the Institute for Research in Public Policy.
