The Minister of Justice and Attorney-General of Canada, David Lametti, maintains he had nothing to do with his department’s unprecedented decision to ask the Federal Court for relief from an order of the House of Commons.
The Commons has twice demanded that the government produce all documents related to the mysterious firing of two scientists from a top-security research laboratory, without redactions. The government has refused. The Speaker of the House, Anthony Rota, was considering a motion to send the Commons Sergeant-at-Arms to seize the documents when the government announced it was taking him to court.
Routine stuff, you understand. A requirement under the Canada Evidence Act. It’s all being handled by department officials. Nothing to do with the minister.
Yes, indeed. So routine it has never been done before in the history of Canada, and probably the Commonwealth. Entirely on their own initiative, anonymous Justice Department officials decided to set several centuries of precedent on their head: Not merely to defy an order for documents – in breach of one of the most fundamental of all parliamentary privileges – but to ask the courts to pass judgment on a House proceeding, which would entail an even more serious violation of its privileges.
There can be few more settled matters of constitutional law than the right of Parliament to send for “persons, papers and records,” a right that is absolute and unabridged, except so far as Parliament decides it should be abridged. If it were not settled before, it was settled by the former Speaker Peter Milliken, in his definitive 2010 ruling in the matter of the Afghan detainees.
Then, as now, the House demanded to see certain documents related to the case, and then, as now, the government refused, invoking national security. The Speaker would have none of it. “In a system of responsible government,” he wrote, “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.”
He quoted an array of authoritative sources in support, from House of Commons Procedure and Practice to Bourinot’s Rules of Order to Erskine May and beyond, all of which, he noted, are “categorical” in asserting the powers of the House to order documents be produced. “No exceptions are made for any category of Government documents, even those related to national security.”
How, then, do the government and its supporters justify their position? Two arguments are commonly advanced. One claims that Parliament is in conflict with itself: On the one hand demanding documents be produced, and on the other insisting, via the Canada Evidence Act, that they be withheld.
The other positions the conflict as between parliamentary privilege and Crown prerogative: The Crown’s residual authority, the bits it has not ceded to Parliament. To allow the legislative branch to dictate to the executive branch, on this theory, would violate the separation of powers. In either case, proponents argue, we are presented with an ambiguity that can only be resolved by the courts.
But there isn’t any ambiguity to resolve. There is no conflict between the statute and parliamentary privilege: The latter is presumed to apply in all circumstances. If Parliament had wanted to carve out national security as an exception to the general rule it would have said so.
So, too, with Crown prerogative. It may permit the executive to act, in certain circumstances, without Parliament’s consent. It does not permit it to act in defiance of Parliament, or in violation of its privileges. Those birds have flown.
To assert that something is a matter of parliamentary privilege is not to subscribe to any broader doctrine of parliamentary supremacy, which has never been part of Canada’s constitutional order. Parliament may not pass laws in areas of provincial jurisdiction, or that violate the Charter of Rights. But whatever limits may apply to Parliament’s power to make laws for others, it is absolutely sovereign within its own precincts.
Certainly it is not for the courts to pronounce upon it: that was settled at least as long ago as the Glorious Revolution (1688). As Mr. Rota told MPs last week, “the legal system does not have jurisdiction over the operations of the House. We are our own (court). That is something that we will fight tooth and nail to protect.”
One assumes, then, the courts will dismiss the government’s case out of hand. But what if they don’t? Parliament would have no choice but to ignore such a ruling. But who enforces the will of the House then? Suppose the Speaker sends the Sergeant-at-Arms to collect the documents, and the government bars the door? What then?
We were already in something of a constitutional crisis before the government decided to get the courts involved. But this takes things to another level.
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