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Speaker's verdict puts the heat on PM for compromise

Bob Rae holds redacted documents on Afghan detainees tabled by the Conservatives in the House of Commons in April, 2010.


Stephen Harper is being forced to choose between compromise and a snap election after the top officer in the House of Commons ruled the Conservative government could be considered in contempt of Parliament for refusing MPs a look at secret records on Afghan detainees.

The verdict is a culmination of an extraordinarily bitter period in Canadian politics that has generated explosive allegations, an eight-week parliamentary shutdown and mounting internal military probes.

The minority Conservative government has stubbornly pushed back when asked for more details of detainee handovers in the face of allegations that prisoners captured by Canada were transferred to torture at Afghan hands. It has said releasing uncensored versions of records on the matter would damage national security.

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But the Tories may now have to yield.

In a historic ruling Tuesday, Commons Speaker Peter Milliken affirmed that Parliament has a fundamental and unlimited right to ask for the Afghan records. He said the Conservatives appear to be in breach of parliamentary privilege by failing to comply when opposition MPs, a majority in the House, voted to demand uncensored copies of the documents last December.

Is it possible for the two sides, working together in the best interest of the Canadians they serve, to devise a means where both their concerns are met? Surely that's not too much to hope for. Peter Milliken, Speaker of the House

The Speaker gave the Conservatives 14 days to end the impasse over documents or risk being found in contempt of Parliament by opposition parties in the Commons. Mr. Milliken can't himself declare the government in contempt.

There are big risks for all parties if after two weeks the opposition is allowed to proceed with a vote that finds the Tory government in contempt. This would all but certainly trigger an election. "How can a government that's been found in contempt continue to govern?" said Patrick Monahan, legal scholar and provost of York University.

Mr. Milliken urged all sides to reach an accommodation before the clock runs out, saying they should be able to devise a system for viewing uncensored records on detainees without jeopardizing national security.

"Is it possible for the two sides, working together in the best interest of the Canadians they serve, to devise a means where both their concerns are met?" he said in his ruling. "Surely that's not too much to hope for."

In a brief statement Tuesday, the Harper government signalled it may be willing to bend even though, it warned, it would not sacrifice national security.

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"We welcome the possibility of a compromise while respecting our legal obligations, as acknowledged by the Speaker," Justice Minister Rob Nicholson said.

Opposition party leaders cheered the Speaker's ruling as a recognition that Parliament has untrammelled rights dating back centuries.

"The Prime Minister's not king and everybody in that chamber has to be respected," NDP Leader Jack Layton told CTV News.

Mr. Layton was the only leader to speak of a possible election, saying he was "absolutely" prepared to go to the polls over this issue should the government stonewall.

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All opposition party chiefs said they were willing to work out a compromise, suggesting select MPs could swear oaths to uphold national security before viewing documents.

Prof. Monahan said it would make sense for an independent party with no political stake in the outcome to scrutinize records and determine if some can be released without affecting national security. He suggested a refashioned mandate for retired Supreme Court judge Frank Iacobucci, already hired by the Tories to report back to the government on the subject.

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Mr. Iacobucci could report to Parliament instead, Prof. Monahan suggested, or the documents could be sent to the Security and Intelligence Review Committee, an independent body that monitors Canada's spy agency.

Such a compromise might find takers. The Liberal caucus is also currently debating whether it really wants to commit MPs to weeks of document reading -- a process that because of secrecy obligations would also effectively prevent them from speaking publicly on the subject.

Still, the Liberal Party leader yesterday said MPs deserve the right to review uncensored versions of these reports, memos and e-mails on detainees.

"If you can't trust MPs, you can't trust the Canadian people. We are put there by the Canadian people to do a job in their name," Liberal Leader Michael Ignatieff said.

The key decision facing Mr. Milliken Tuesday was determining which was supreme: the government or Parliament. He came down firmly on the side of Parliament, rejecting the Harper government's argument that official censors should filter what MPs see.

"It is the view of the chair that accepting an unconditional authority of the executive to censor the information provided to Parliament would in fact jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts," Mr. Milliken said.

"Furthermore, it risks diminishing the inherent privileges of the House and its members, which have been earned and must be safeguarded."

With reports from John Ibbitson, Bill Curry and Gloria Galloway

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