House of Commons Speaker Peter Milliken handed down a clear, measured, and compactly reasoned ruling last Tuesday, a ruling which, on occasion, artfully employed both pointed understatement and carefully crafted elisions.
The primary question before the Speaker was of course whether the government had breached parliamentary privilege by failure to comply with the House of Commons’ Dec. 10, 2009, order that the government must produce uncensored copies of documents in a list of categories.
The House was, and is, seeking documents relevant to Canada’s policy and practice of transferring detainees to Afghanistan authorities and to concerns of Canadian involvement in incidents or even a pattern of torture notably by Afghanistan’s National Directorate of Security.
The Speaker structured his ruling to deal first with two witness intimidation allegations, on which he found for the government — albeit without precluding a different view if further information came to light that would situate the impugned conduct in a wider context.
He found in favour of the House of Commons by holding that, on a matter of form, an order to the government was proper (and an address to the Governor General not required).
On the key matter of substance, the government’s refusal to abide by the House’s order for production of unredacted documents “constitutes prima facie a question of privilege.” In an earlier portion of the ruling, he outlined why the Speaker’s role is to make such a prima facie determination, but that, once that is done, it is for the House itself to determine whether there has been a breach of privilege and, if so, also a contempt of Parliament.
The Speaker framed his findings of Parliament’s right to compel document production around a combination of long-standing doctrinal opinion and parliamentary practice, and drawing on background values of parliamentary democracy. As to the latter, he noted: “In a system of responsible government, the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and, in fact, an obligation.”
As to the former, he leaned heavily on formulations of the law in texts, most notably Audrey O’Brien and Marc Bosc’s House of Commons Procedure and Practice, 2nd. ed., from which the following statement of the law is endorsed by the speaker: “No statute or practice diminishes the fullness of the power rooted in the House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power.”
Identifying no such “explicit legal provision” or “specific resolution” hindering the House’s privilege to order the production of uncensored documents, the Speaker ruled the government had to obey the Dec. 10 order to produce the documents.
Milliken then staked out a procedural middle ground to deal with the failure of the House’s order to set out modalities for receiving and protecting sensitive information once in Parliament’s hands. Fashioning something analogous to a creative judicial remedy sometimes seen in the realm of constitutional law, he urged MPs to make best efforts within two weeks to come up with an approach to dealing with sensitive information in the document-production and scrutiny process that would be acceptable both to a majority of the House and to the government.
He framed this process not in terms of any legal obligation on the House but in terms of a wider notion of responsibility framed by values of “accommodation and trust” and also in light of parliamentary history revealing that Parliament does not always insist on such production when cogent reasons are given by the government and accepted by the House, for their non-disclosure.
If, at the end of two weeks, no solution has been achieved, the House’s power to compel production as it sees fit will kick in, with the path open for motions of breach of privilege and contempt.
Attention is now focused, rightly, on what sort of process either could or should be agreed to by MPs before the expiry of the two-week deadline. The simplest — and perhaps most useful — point is to note the relevance of cross-party legislative processes in other democracies — from the United States to Australia.
Without being naive about prospects, the issue is not the availability of workable models that can be adopted and adapted to the Canadian context.
Workable and effective approaches include enlisting the Security Intelligence Review Committee, creating a special process within the special committee on Afghanistan, or creating a hybrid of a subsection of SIRC and designated members of Parliament advised by an experienced sitting Federal Court judge with a strong record for even-handedness in cases involving security information (Justice Richard Mosley, for example, being oft-noted as just such a judge).
The real issues are twofold: one, whether the government will continue to insist on a process whereby Parliament can be prevented even from seeing some unredacted documents; and, two, what use may be made by Parliament of the unredacted information in the broader interests of accountability to Canadians and of justice.
On the first issue, MPs must be careful that they do not structure a process that ends up attracting the application of articles 38 and 39 of the Canada Evidence Act (CEA) — or, at least, attracting government arguments that it has been triggered.
Article 38 generates a web of possibilities for the government to challenge the production of evidence in any “proceeding before a court, person or body with jurisdiction to compel the production of information” where that information relates to “international relations or national defence or national security” that the government “is taking measures to safeguard.”
And art. 39(1), dealing with cabinet-related information, does not even require a “proceeding” to trigger the power to exclude evidence. Rather, it states that “[w]here a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen’s Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.”
One listed example of a confidence is “a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy” (art. 39(2)(d)).
We cannot ignore that central to the entire detainee-transfer debate is the possibility both of the Canadian state’s breach of a range of legal obligations (such as the international legal duty not to hand over a person to another country where there are substantial grounds for believing that the person would be in danger of being subjected to torture) and, potentially, of criminal wrongdoing by individuals.
That being part of the context, it takes little imagination to see how such records shielded by article 39 could contain highly probative evidence of high-level policy-making and decision-making relevant to criminal wrongdoing.
MPs should carefully consider how to finesse a negotiated solution so as to specify that the CEA does not apply to any process designated to receive and consider the documents.
If the government will not make that general concession, it might nonetheless specifically agree not to invoke the CEA — or any other right, such as might be argued to be found in common law — to exclude production, in exchange for rules acceptable to the government on how documents could then be made public.
The issue of dissemination beyond Parliament itself leads to a crucial challenge for the process: what are the duties of MPs — or any members of the process — should they come upon evidence of criminal wrongdoing in relation to Canada’s detainee-transfer policy and practice?
Among the potentially applicable criminal laws are the provisions of the Criminal Code on torture committed anywhere in the world, provisions of the Crimes Against Humanity and War Crimes Act, and the Geneva Conventions Act.
Situations may arise whereby key pieces of information tending to show criminal wrongdoing are inextricably connected to sensitive information or where information on criminal wrongdoing can be revealed but only by decontextualizing or making it incoherent because neighbouring sensitive information is redacted.
Any process must ensure that parliamentarians do not end up in an ethical cul-de-sac in such situations wherein they believe they have a duty to keep information confidential for reasons of national security even when that information shows, or tends to show, criminality.
Here, it should be borne in mind that there is nothing in the Criminal Code, and nothing express in the evidence act, that precludes the police from searching and seizing information (from documents to computer data) up to the highest reaches of government, subject to having a judicial warrant on the basis of a sworn reasonable belief that a crime has been or will be committed.
At the very minimum, MPs should at least feel free to report to the RCMP that they have seen documents that tend to show criminal wrongdoing and that the information cannot be disentangled from sensitive information, as well as indicating which documents or computer data the RCMP should specifically secure a warrant to search and seize.
In this manner, no specific conveying of sensitive information outside the parliamentary process will have occurred but sufficient information will have been given for the RCMP to then seek out the documents for purposes of investigation.
Craig Scott is a professor at Osgoode Hall Law School; director of the Nathanson Centre on Transnational Human Rights, Crime and Security. A more elaborated treatment of some of these issues and arguments appears on thecourt.ca.