From The Globe and Mail (March 10, 2010)
Opposition efforts to get at the facts about Afghan detainee abuse appear not to have entirely abated, despite former Supreme Court of Canada justice Frank Iacobucci's appointment to advise the government about releasing documents. Prime Minister Stephen Harper's constitutional footwork certainly did not do the trick. Prorogation simply will not erase the stain of Canadians handing over Afghan detainees to face torture, if accusations are true. The break also should not allow him to escape the House's motion calling for uncensored documents relating to the abuse allegations.
Up until the day before the motion in December, the government side claimed that a variety of statutes legally barred it from releasing documents that threatened national security. It was only then that Carolyn Kobernick, assistant deputy minister in the Department of Justice, acknowledged that there was no statutory basis for refusing to deliver unredacted documents.
Instead, Ms. Kobernick claimed that the government, when making decisions regarding disclosure, would be guided by “the values underlying Parliament's intention in these provisions” – namely, “to protect the national security of Canada from harm by the unauthorized disclosure of sensitive information.” So there was no legal bar to the production of unredacted documents, only a discretion guided by values underlying the law.
Is this a constitutionally sufficient reason to ignore the expressed wishes of House members that these documents are delivered up pronto? Unless the opposition parties take further steps, it may be enough to just say no.
It might be thought that what are called parliamentary privileges will trump the exercise of prime ministerial discretion. The House of Commons, after all, is entitled exclusively to control its own procedure, to determine the scope of the application of statutes to its own proceedings and to order the production of documents.
If met with resistance, these privileges entitle the House to take disciplinary measures, such as citing members for contempt, expulsion, even incarceration until the end of a parliamentary session. No matter how delicious these circumstances may sound to some (prorogation delayed access to these sorts of remedies until after the House resumes sitting), they might not have the desired effect of having unredacted documents delivered up.
What the problem boils down to is an old-time dispute between the Crown and Parliament – between the royal prerogative and parliamentary privilege. The prerogatives of the Crown concern an area of unfettered discretion that has been whittled away by statute and practice to only a handful of things.
These include a few matters that are reserved for a governor-general acting on the advice of a prime minister (such as prorogation and dissolution), and subjects such as treaty-making, diplomacy and the deployment of armed forces – matters concerning the making of war and peace – that have been taken over by prime ministers and by members of the cabinet. Foreign affairs and national security remain, then, subjects for the exercise of Crown prerogative and so seemingly within the exclusive purview of the prime minister and a few select others.
Prerogatives continue to exist, however, only to the extent that they have not been disrupted by statute. Although Judge Iacobucci's advice may be helpful in resolving some aspects of this dispute, what the circumstances require is that Parliament take immediate measures to control the exercise of prerogative power, using statute. This realm of unfettered discretion must be made accountable to the people and their representatives. It is not often that Parliament can acquire this authority in the face of an intransigent prime minister. With Mr. Harper's party in the minority, however, the House of Commons can enact a special statute directing disclosure of these documents, even under certain conditions, and so control the prerogative in this instance.
It also is an opportune moment for the House to consider limiting, even abolishing, the balance of prerogative powers that are exercised almost exclusively by prime minister and cabinet. This is what the British House of Commons select committee on public administration recommended in 2004 and the House of Lords recommended in respect of the prerogative of deploying troops in 2006.
A bill regulating the exercise of a prime minister's power to recommend prorogation or dissolution to the governor-general is a more delicate constitutional matter, but deserves serious consideration as well.
The only thing standing in the way of controlling the exercise of the prerogative power in the case of unredacted documents is the Canadian Senate, where Conservative loyalists are now in the majority, but in which independent senators hold the balance of power. Were appointed Conservative senators to block such an initiative, it surely would give rise to yet another constitutional conflict, which Mr. Harper would be well advised to avoid.
