Afghan detainee scandal puts Canada’s constitution at stake

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You wouldn’t know it by walking most Canadian streets in the last few months, but there is a rather serious constitutional debate raging in Ottawa that might change the parliamentary system as it’s known not to only Canadians, but to many others around the world. One of the more interesting asterisks on the on-going debate over whether detainees were handed over to Afghan officials by Canadian soldiers with full knowledge that they would be tortured, is the debate over parliamentary procedure, and who – the House or the Prime Minister – wields more power.

Back in December, not long after diplomat Richard Colvin testified to a parliamentary committee that all Afghan detainees passed on by the Canadian military had been tortured by Afghan authorities, the opposition parties (the Liberals, NDP and Bloc Quebecois) requested that the Conservative government release all federal documents related to the allegations. That was put on hold when Prime Minister Harper prorogued Parliament until March, but when the House resumed, the opposition again asked to see the documents.

The government obliged… sort of. Gradually, thousands of pages of documents have been released, but it has been heavily redacted and much of the content (sometimes full pages) has been blacked out. The government has maintained that the documents contain sensitive material, crucial to not only Canadian military security, but also the security of its allied forces like the U.S. To that effect, the government also hired former Supreme Court judge Frank Iacobucci to review all the documents to determine whether they could be released to MPs, or whether they were too sensitive.

Despite all of this, the government might still be at fault, and could risk being found to be in contempt of Parliament. Contempt of Parliament, officially, is defined this way:

…any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

Or, as the House of Commons Procedure and Practice manual describes it:  “Any conduct which offends the authority or dignity of the House, even though no breach of any specific privilege may have been committed.”

In effect, the allegation here is that the government – that is the executive – is placing itself as an authority above the Parliament, which is counter to the constitution. The opposition parties felt so strongly that this was the case, that last month they asked the House Speaker, Peter Milliken, to find the government in contempt of Parliament.

That decision is due either Thursday or sometime next week, and the implications are interesting. Simply put, if Milliken finds in favour of the opposition, then the documents will be released. On the other hand, as University of Ottawa law professor Errol Mendes told the Globe and Mail, “If the Speaker rules against the opposition motions… the executive would no longer be accountable to the House of Commons.” And that, without question, is fairly significant.

But even if the far-reaching implications, though speculative, could change much in the way our government works (at least, on paper), there are more immediate concerns for the average Canadian. The G&M continues:

Technically, [Milliken] will rule only on whether the government appears to be in contempt. If he finds against the government, a parliamentary committee will thrash out the issue, and the matter will be brought back to the House for a final vote.

Rather than release the material, the Conservatives could force an election by making that vote a matter of confidence in the government.

If – and it’s a rather big ‘if’ at this point – there is a vote of non-confidence in the House after all that parliamentary wrangling, and Canada goes to the polls on this question, it’s safe to say that most of us will be in the dark on what exactly we’re voting for or against. At least theoretically, an election prompted by this debate might have a referendum type of feel to it, essentially asking Canadians what party they feel falls on the correct side of constitutional law. Quite frankly, I doubt we’re ready for that.