Opposition parties have set the stage for a confrontation pitting the rights of Parliament against national security concerns by forcing through an extremely rare Commons motion ordering the Harper government to release confidential records on detainees captured in Afghanistan.
The Liberals, NDP and Bloc Québécois, which together outnumber the Harper Conservatives in Parliament, passed a motion by a 145-143 vote that seeks to compel the release of thousands of uncensored documents on Afghan prisoners.
If the Conservatives ignore the order, as expected, opposition parties could vote to find the government in contempt, sparking a battle that might result in the courts being asked to weigh the limits of parliamentary privilege.
Ministers or other MPs found in contempt could be admonished and embarrassed by being compelled to appear before the Bar of the House – the floor of the Commons – to face a grilling from MPs.
But this House order-to-produce is a rarely used power and one that is in potential conflict with laws – such as those concerning privacy and national security – that Parliament itself has passed.
The Commons adjourned Thursday night and the debate will continue outside the House until it reconvenes in January.
The Tories have been on the hot seat since Nov. 18, when diplomat Richard Colvin alleged that likely all detainees captured by Canadian soldiers were tortured after being transferred to Afghan hands in 2006 and early 2007. But the Conservatives have resisted all demands to release uncensored copies of the documents on detainees.
However, the opposition is now emboldened after stunning military revelations on Wednesday that a Canadian-captured detainee was abused in June, 2006, after being handed over to the Afghans – contrary to Tory government assurances that there was no evidence prisoners were tortured.
The Harper government responded to Mr. Colvin's testimony with a series of attacks on his credibility, an onslaught that this week brought a letter of protest from former ambassadors against the diplomat's treatment.
On Thursday, the number of former ambassadors putting their names to the letter climbed to 95. The open letter castigates Ottawa for dismissing Mr. Colvin's 2006 and 2007 torture warnings as irrelevant and suspect – a move ex-ambassadors fear casts a chill over the foreign service's ability to report frankly from abroad.
“I have never seen foreign-service officers come together like this before in my life,” ex-ambassador Gar Pardy, an organizer, said of the effort.
The list, now approaching 30 per cent of all retired Canadian ambassadors, in the last day signed up ex-heads of mission such as former Liberal cabinet minister Allan Rock and James Bartleman, who once served as Ontario's lieutenant-governor.
During a debate on the opposition motion to produce documents, Defence Minister Peter MacKay warned divulging confidential records would jeopardize Canada's troops by revealing things that “could be helpful to the enemy.”
But Liberal MP Ujjal Dosanjh said opposition parties are prepared to take steps to safeguard the documents and protect the information.
“The government can't act like a dictatorship where Parliament is not supreme any more,” the Liberal MP said.
The motion the opposition parties passed says they are relying on what they call the “undisputed privileges of Parliament under Canada's constitution, including the absolute power to require the government to produce uncensored documents when requested.”
Ned Franks, a constitutional expert and professor emeritus at Queen's University, warned that Parliament might lose out if the dispute ever reaches the courts because judges could rule that MPs have to respect secrecy laws. He said he'd like to see “one side or the other back down” instead of the Tories being forced into a corner.
“My guess is the government will say no and then you get into something that the House of Commons has really tried to avoid for many, many years – that somebody might want to refer this to the courts,” Prof. Franks said. “And then courts would be ruling on parliamentary privilege.”
Bloc Québécois Leader Gilles Duceppe vowed to use Parliament's power to force the government to release records.
“We will push this for as long as it is possible,” he said.
But Foreign Affairs Minister Lawrence Cannon maintained the government is bound to respect those parts of the Canada Evidence Act that safeguard national security.
“That's the law, and we abide by the law,” he said.
The dispute is reflected in duelling legal opinions between Parliament, whose officers are independent of the government, and the Justice Department, over whether Parliament itself is bound by the statutes – such as the evidence act – that it passes.
The Justice Department is arguing in a letter circulated by the Tories that there are legislated limits to what can be released under privacy and security laws that politicians must respect. But Robert Walsh, Commons law clerk, has countered that MPs in parliamentary committees have the power to read uncensored documents.
Canadian courts traditionally have been wary of wading into disputes over the rights and powers of Parliament. Unless a political resolution can be found, however, they may have no choice.
Separately, the opposition plans to keep the pressure on the Tories by restarting parliamentary hearings on the Colvin affair early in January, far before the House resumes sitting. And a military watchdog agency plans to resume separate hearings into the detainee issue next March. But critics fear that a new chair the Tories plan to appoint for the Military Police Complaints Commission will not be as keen to probe the matter as was the departing head, Peter Tinsley. His tenure ends today and the Tories have declined to extend it.
