Curiouser and curiouser

There is something odd about the reasons given by the Conservative government for refusing to hand over to the Commons Special Committee on the Afghan Mission documents it has requested. The Committee requested the documents after the testimony it heard from Canadian diplomat Richard Colvin in November 2009 concerning the tranfer of detainees to Afghan authorities. At first, the government refused, citing the Canada Evidence Act as the reason, in particular section 38, which was introduced as part of the Anti-Terrorism Act in 2001, and which seeks to restrict the disclosure of sensitive national security information in legal proceedings before courts and tribunals. Bolstered by the written opinion of the Commons Law Clerk and Parliamentary Counsel, who is the country's foremost expert on the legal powers of the House and its committees and the application of federal laws to the business of the House, the Committee disputed the government's right to withold this information, and reported what it considered to be a serious breach of privilege to the House so that it could address it. The Government then released a heavily redacted version, again citing section 38 of the Canada Evidence Act. Then it came to light that even the Department of Justice agreed with the Parliamentary Counsel that section 38 of the Canada Evidence Act does not apply to the proceedings of a Parliamentary Committee . This led the House to pass a motion demanding full disclosure of the requested information on the last day of the second session of the 40th Parliament, which was then recessed until January 25. Failure to comply could lead to a motion of censure, basically finding the Prime Minister guilty of a crime against the nation. This is what faced the Government as it entered the Christmans break, seemingly boxed in on all sides. As we all know, the Conservative brain trust came up with a novel escape plan and on December 30, the Prime Minister prorogued Parliament, thus disbanding the special committee, leaving all its work in limbo.

However, the issue has not gone away and Parliamentarians are again asking that the Government comply and provide the requested documents. The PM's line of defense? The Department of Justice is making us do it. This was the PM's response during Question Period on March 4. But, on March 5, the government announced that it was hiring a retired justice of the Supreme Court, Frank Iacobucci, to advise it on what it can release. Didn't he say in the House the day before that they were releasing everything that was possible to release, "according to the law". So, which is it? Does the Canada Evidence Act apply to the proceedings of a House Committee or not? All legal opinion, and a simple reading of the legislative record, says not. However, if it did, as the Government seems to still be maintaining, the Act provides a very detailed procedure covering consideration of potential disclosure by the Attorney General of Canada, the serving of notices concerning his decision, the opportunity for judicial review of the decision, further opportunity for appeal, culminating in a final Supreme Court decision either ordering the disclosure, in full or in part, or confirming the Attorney General's decision to withold information. The hiring of a retired justice of the Supreme Court to advise them on what to disclose is clearly not part of the procedure. It's just a made up dodge to make it look all serious and legal. By choosing this course of action rather than the procedure specified in the Act, the government is basically conceding that the legal basis that they have been claiming in support of their refusal to submit to the will of Parliament is a sham. Justice Iacobucci should gracefully decline this job offer, lest he be found complicit in this travesty.