Thank you, Chair.
I want to say first of all that I support this motion. I will have some comment on the wording, but I do wholeheartedly support the motion to obtain the documents requested, and I won't go into all the legalities. I think Mr. Genuis has covered the field, as it were. I will rely on that very important ruling by Speaker Milliken on April 27, 2010, and the ruling of March 9, 2011, which dealt with the Afghan detainee documents.
I first want to thank the Law Clerk and Parliamentary Counsel, Philippe Dufresne, for his excellent exposition of the rules and law on the power to send for persons, papers and records, in his letter to you, Chair, of March 31, 2021. I would commend all parliamentarians to look at it as a concise and thorough exposition of the principles involved. Some of them are legal principles, and they are of course legally binding, but they're also important constitutional principles that govern our Parliament and the right of parliamentarians.
I'm also moved to say that I'm pleased to hear this motion is coming from the Conservative Party of Canada, and supported by Michael Chong, who also supported these rulings back in 2010 and 2011, which were not really supported by his government. His government opposed that, so I'm encouraged by the fact that we now have the Conservative Party of Canada standing strongly and firmly behind these rules as they pertain to the right and duty, in certain cases, obviously, of members of Parliament to have access and to seek access to important documents that are under control of the executive, and under the control of bureaucracies in some cases, and also, the understanding of the principles that are involved.
I think it's a very important exercise that we are looking at today. It behooves us to look at it quite carefully and consider what we're doing and how we are doing it, because I think both of these things are important.
As noted by the law clerk in his paper and letter sent to us, the powers of committees to order the production of documents and records are not limited by law or by the House of Commons' rules of procedure, and Parliament is not, as is pointed out here, bound by the act. As pointed out in the document of a report of the Standing Committee on Public Accounts in 2009, entitled “The Power of Committees to Order the Production of Documents and Records”:
The power to send for records has been delegated by the House of Commons to its committees in the Standing Orders of the House of Commons. A committee's power to call for persons, papers and records is said to be absolute, but seldom exercised without consideration of the public interest.
I think that's the nub of what we are doing here today in this motion. We are exercising the rights of parliamentarians to have access to documents and records, and I think they're important. It's not done lightly. As pointed out by Mr. Genuis, the importance of the question at hand is significant, as was the issue that gave rise to the rulings of speaker Milliken in 2010 and 2011, known in shorthand as the “Afghan detainee documents”. Those documents were relevant to the question being pursued at the time, namely, whether or not Canada had been complicit in the torture of persons held and detained in Afghan prisons during the war in Afghanistan. It was an extremely important question as to how Canada had undertaken its obligations under international law. So, it's not done lightly, but when it is done, it's done within the powers of the Constitution as expounded by speaker Milliken.
Mr. Chong just said that Speaker Milliken confirmed the existing rules. However, I think it's important to note that decision was probably the first one in all the British Commonwealth of nations, or parliamentary democracies, that had gone so far and detailed on that principle. It's very rare for that level of decision to be made because it's very rare for it to come to that kind of ruling.
We are lucky as a country to have that ruling as a guiding principle. I think, seeing the Conservative Party support for this, it's now well settled that this is the law in Canada and the parliamentary procedure under which we should operate.
Having said that, I'm not going to move the motion right now. I'm going to listen to the debate, but later on I will move a motion to amend paragraph (b) of the order to try to find a way.... We may need to ask questions of the parliamentary clerk as to how this might be done. I'll give you the gist of it now, Mr. Chair, and members of the committee. Rather than asking the law clerk to redact documents, the law clerk should discuss with the committee, in an in camera meeting, the information contained therein, which in his opinion, might reasonably be expected to compromise national security or reveal details of an ongoing criminal investigation, so as to allow the committee to determine which records might be made public or available to the committee, so that committee would be involved in this.
Going back to the Afghan detainee situation, I think it was mentioned before at this committee that one party didn't participate in the examination of the documents after the ruling had been made. I will explain that for the benefit of members of the committee and those who may be paying attention.
That is correct, because what had happened after the ruling was made, in an effort to seek a method of following the ruling that had been made by the Speaker, a committee was struck among all parties in the House. I was a representative on that committee. The committee, by majority, ruled that the committee itself that was looking at these documents or was entitled to these documents would not actually see the documents. Instead, they would be handed to a third party—in that case, former justice Frank Iacobucci—to look at all the documents and make them available to the committee, which he, in his opinion, thought were appropriate to be passed to them. We did not agree with that because it was contrary to the motion.
We believe other measures could have been taken to ensure whatever requirements of national security and the public interest could have been undertaken by the committee.
That is a principle that I want to see upheld in this particular exercise. I did not sign this letter. I see that five members of the committee have done so. I was invited to do so. I urged the mover to proceed with the motion, but I didn't want to be committed to the wording that was contained in it because of the matter that I just raised.
I do think we should have a method for dealing with the public interest in this matter, as we should do as parliamentarians, but to do so in a way that does not accept the limitation on our powers. As parliamentarians we have to be mindful of our obligations and our own oath of office, and that we conduct ourselves in that manner with the assistance, guidance and advice of the parliamentary counsel and legal adviser.
That's the gist of what I have to say. The wording of that motion and perhaps some comment from the other members of the committee and the parliamentary counsel and law clerk would be important to this discussion before I would move a motion on the exact wording.
Thank you, sir.