April 28, 2010

Following torture allegations, and months of procedural geekery, the government must now release uncensored documents

It's been five months since diplomat Richard Colvin first levelled the charge that all detainees handed over to Afghan authorities by Canadian troops had been tortured. Since then, politicians – and those citizens who have actually noticed – have been embroiled in procedural geekery, wrestling with the issue of the government's refusal to release relevant documents to the case. Stephen Harper's Conservative government has maintained since last fall that releasing the uncensored documents would threaten national security, defending their refusal by alluding to the Access to Information Act. The opposition disagreed. On Tuesday, the House of Commons came closer to a resolution.

Let's back up first. Last December, the House passed a motion that would require the release of documents revealing the extent of the government's knowledge of the detainee situation, whatever it was. By refusing to do so, the Harper government risked being found to be in contempt of parliament, so it stalled instead. After parliament resumed in March following prorogation, the government hired former supreme court justice Frank Iacobucci to sift through the documents in order to determine what could be released without jeopardising Canadian military and national security. Still, however, the opposition parties weren't happy, and they put forward two separate motions calling on the House Speaker, Peter Milliken, to rule on the issue.

What the argument amounted to was a question of privilege. Were Milliken to side in favour of the opposition parties, the status quo would remain; the executive branch would not be deemed to be more powerful than the legislative. In other words, the government would remain accountable to the House of Commons. If, however, Milliken chose to uphold the decision of the Conservative government, then the implications for executive power would potentially reach further than future Canadian parliamentary proceedings. It was, in effect, a precedent-setting decision.

On Tuesday, Milliken sided with the opposition.

In his 45-minute speech, Milliken made rather obscure references to past parliamentary rulings, and even reprimanded the MPs on the general tone that the debate had taken. Specifically, he called out the opposition for their "unhelpful" insinuations that the government had an ulterior motive in withholding the documents. But in the end, parliament won out.

Milliken told the House:

"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 jeopardise the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts. […] On analysing the evidence before it and the precedents, the chair cannot but conclude that the government's failure to comply with the order of December 10, 2009 constitutes prima facie a question of privilege."

Unfortunately, despite the historic nature of the ruling, it only means that the Afghan detainee issue has entered a new phase, not that it has been solved. The government is required to release the documents, but the biggest question now will be how. In his speech, Milliken recognised the sensitive nature of the information in question, and gave the parties on both sides two weeks to figure out a way that the documents could be released without putting national security at risk. That means, very simply, that they must compromise – and quickly. Otherwise, the government will once again be at risk of being held in contempt.

If in two weeks nothing is solved, Canada might still see a vote of confidence put forth in the House. That could put Canadians back to the polls for the third time since 2006. Alternatively, the issue could go to the supreme court for a judicial inquiry, removing it from parliament entirely. However, that might be unlikely given the court's historical reluctance to meddle in the business of parliament.

Harper's absence from the House during the Speaker's ruling could have been telling: he may well have predicted the outcome, given its potential significance. It's tough to say what Harper's next move might be, but if his track record has shown us anything, it's that he doesn't seem to enjoy losing political standoffs.

Given that the Conservatives' popularity recently fell below 30% (joining the Liberals), it's difficult to imagine that even they would want an election, but it's not inconceivable that Harper might take this issue that far. If that's the case, it will make for an interesting election, but one for which the populace is probably unprepared. Canadians are tired of voting, and in conversation there seems to be palpable, and understandable, confusion over the minutiae of this parliamentary disagreement.

So, it's heavy going in Ottawa at the moment and for the foreseeable future. Justice Iacobucci may still play a role, but instead of answering only to the Conservatives, he might answer to selected MPs from the privy council in order to ensure confidentiality. That question of security and how to guarantee it – the fundamental issue at the heart of this matter since the beginning – is becoming ever more important to the nation's political stability.