Debates of Dec. 10th, 2009

Opposition Motion—Documents regarding Afghan detainees

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Mr. Speaker, would the Minister of Justice tell us why the mover of today's motion is completely irresponsible in asking government officials to break the law in the Canada Evidence Act in an attempt to further his own political gain? After all, was it not the former Liberal government that put in place the Canada Evidence Act after the 9/11 tragedy?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Speaker, the hon. member has covered a number of points.

It is difficult for me to speculate on the motives of the individual who moved the motion. I can only say that the Liberals should adopt the same approach that we are taking, that the national security and protection and safety of individuals serving in Afghanistan, indeed serving abroad, have to be of the utmost concern to everyone, be it a committee of Parliament or the Military Police Complaints Commission.

This has to be our ultimate goal. I think I have made this point very clear and so have my ministerial colleagues. We have a responsibility to individuals who assist in the safety of others serving abroad. Again, it is not just members of the armed forces; it is civilians as well. We want to make sure they are protected.

Disclosing, for instance, as to when and how often they visit detainees, information like that, in my opinion, would jeopardize their safety. If terrorists get the log on something like that, it could be very dangerous. This is our motive for all our actions in this area.

[Ralph Goodale, Liberal, Wascana, SK]

Mr. Speaker, the minister's proposition today seems to be that properly informing Parliament and honestly and fully answering questions about crucial issues like our mission in Afghanistan are somehow inconsistent with protecting the public interest or safeguarding national security or ensuring the most safe and secure conditions for our troops and others in the field in Afghanistan and maintaining good international relations. He says there is a fundamental inconsistency between properly informing Parliament and safeguarding those other things.

I would ask the minister, why is the government the only party that is in a position to safeguard those other things? Why is it not possible for the House of Commons and Parliament, which the Speaker made a ruling on earlier today, having all the powers to do so, to protect any sensitive information just as well as, and perhaps better than, the government can do?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Speaker, the hon. member does not outline any particular procedure for that. Right now, public servants with expertise in this area work with other public servants. They have no other motive than the best interests of this country and the protection of our men and women in uniform. They have no other motive than that when they make recommendations with respect to redacting documents.

The hon. member has suggested to just dump all the papers. It would not even be confined to that. I suppose it would be tax records and anything else they want.

There is a process in place. Unbiased experts work within the public service of Canada and give advice on that. That is the proper procedure and that is the procedure that has been taking place up to this point.

[Claude Bachand, Bloc, Saint-Jean, QC]

Mr. Speaker, the opposition motion before us today is quite simply a response to a motion adopted by the Special Committee on the Canadian Mission in Afghanistan on November 23, calling on the government to table a number of documents.

I understand that this motion is coming before the House at this point in the debate because the members of the special committee are using every possible means to try to conduct their investigation, and, as I will demonstrate, they are facing a number of obstacles. I believe that a motion approved by Parliament would put a bit more pressure on a government that is not very transparent—opaque, if you will—and also extremely isolated.

I just want to address the issue of the government's non-transparency and isolation. I believe that it is important to review the facts. It all started in 2005, 2006 and 2007, when the opposition members in this House asked the government questions about the treatment of Afghan detainees. When I refer to that period, hon. members will understand that I am referring to both the Liberal regime and the Conservative regime.

The response was always that there was no problem, that international laws applied and that there was no torture. As the years went by, reporters conducted some very serious investigations that contradicted what the government was saying.

That is why we must get to the bottom of things today, because a certain commission known as the Military Police Complaints Commission decided to conduct a full investigation into the issue. The commission faced major obstacles from the government, a bit like the obstacles the special committee is facing today: non-disclosure of documents, censored documents, witnesses who were intimidated or gagged, and so on.

What happened is that the Military Policy Complaints Commission was forced to stop its work, because the government did not want certain witnesses to appear and did not want to disclose certain documents unless they were completed censored.

The special committee decided to take over because we felt it was important. We took over, and now, we are dealing with pretty much the same behaviour, except that the government is having a much harder time because it has to deal with the opposition every day during question period.

Just now, I was talking about reporters. They do an excellent job of relaying public opinion, and that puts pressure on the government to change. We have not seen the end of this issue yet; we have been working on it every day. I was in the foyer before coming in to give my speech, and the situation was changing by the minute. We want to speed things up because we are about to wrap up the session. We have to uncover the truth. If the government thinks that we are going to put things off until the end of January just because the session ends tomorrow, it has another think coming. We have a job to do, and we must get to the bottom of this.

The government is not being transparent. It is on its own here because it has one theory, and pretty much everyone else has the opposite theory. All of the international organizations operating in Afghanistan, not to mention other groups, regularly turn up evidence of torture. There is plenty of evidence that it has happened.

I would like to point out that the Geneva convention covers more than just torture. One of the conditions for transferring detainees is that they not be tortured. However, there is another condition that involves avoiding the risk of torture. At this point, it is safe to say that everyone except the government acknowledges that there is a risk of torture and that torture occurs. Yesterday, the chief of defence staff, General Natynczyk, confirmed that there had been a case of torture.

We are absolutely convinced that there have been more such cases and that we, along with the people of Canada and Quebec, are witnessing a massive cover-up operation. I believe that the government will eventually pay the political price. What we have before us today is similar to the November 23 motion.

I would now like to describe the obstacles that the special committee on Afghanistan is facing.

The committee asked for a series of six documents, and asked to have them by December 2. As of today, we have received only two of the six documents we requested. Furthermore, these two documents are heavily censored. I cannot show these documents here in the House, but these reports are from the first series. These documents were presented during Mr. Colvin's testimony. But entire pages are blacked out.

I told the Minister of National Defence, when he appeared before the Standing Committee on National Defence, that this kind of page should not take much time to translate. A blacked-out page does not take very long to translate, and this keeps members from fulfilling their duty to investigate very serious allegations and to investigate what the chief of staff revealed yesterday.

These documents are very heavily censored. The government is invoking all kinds of national security clauses and dangers for soldiers. But the government employees who have testified, they have access to the uncensored documents. Members can picture the situation: the people before us had access to all of the uncensored documents. The generals even bragged about having seen the documents. They implied that we had not seen the documents because we were only members of Parliament, and that they held the truth, and that we did not have it. That is what was going on.

We cannot accept that documents are censored at this point. How can we adequately question the witnesses? How can we truly understand what is going on if we do not have access to these documents, and if the government has intentionally postponed their release? It is postponed again and again. That is why I thought it was necessary to say from the beginning that just because the House is adjourning tomorrow does not mean that everything will stop until the end of January. The Special Committee on the Canadian Mission in Afghanistan is discussing the possibility of sitting during the holiday period to continue examining and getting to the bottom of things.

I would like to come back to the point of order raised earlier, because I think it is important. It was raised earlier regarding the Minister of Justice. The first witness to appear before the Special Committee on the Canadian Mission in Afghanistan was the government's judge advocate general, General Watkins. What happened at the commission meeting also happened at the Special Committee on the Canadian Mission in Afghanistan. Indeed, from the beginning of the questions, the general told us that, because of his relationship with his client, he could not disclose certain things. That is when things fell apart. We therefore decided to look into what our rights are, as parliamentarians, as members, compared to the legal rights of a judge advocate general defending the government's case. I should point out that the client with whom he had a privileged relationship was the Government of Canada.

We have raised some very important points and I think it is important to talk about them again. We, as members of Parliament, represent the grand inquest. Under the Constitution, the members represent the grand inquest for the House of Commons. We are the ones to decide to get to the bottom of matters. We are elected. We have the legitimacy of having been elected in our respective ridings. It is therefore our responsibility to get to the bottom of things, in our respective areas of interest, when we think something is not right. That is what parliamentary democracy is all about.

In the British tradition, the government is the defender, the protector of the realm, and we are caught in the middle. Who has first right? We believe that the right of parliament should take precedence. The legislative counsel of the House of Commons said we must interpret the legislation in a way that respects every aspect of the Constitution and furthermore, that when a law applies to the work of Parliament, the House is the only one that can decide how that law applies to it.

That is rather clear. It means that when provisions such as section 38 of the Canada Evidence Act are invoked, which prevents the disclosure of matters for reasons of national security, we believe, and so does the legislative counsel of the House, that it can be challenged.

The legislative counsel goes further: “If a law allows ministers or the government to conceal information from Parliament, that will mean that the government may invoke the law and avoid its obligation to account to the House. ” This would be unconstitutional because it is contrary to the fundamental principle of our parliamentary system. Moreover, the government's obligation to account to the House is a constitutional principle that cannot be set aside by mere legislation.

It is clear to us that when a committee asks for documents and especially when it asks that they be uncensored, the documents provided should not be censored. When a committee asks for documents within a period of time fixed by a motion, the documents should be provided within the time specified and not weeks or days later. Today is December 10 and the set of documents to which I referred earlier was to have been submitted before December 2.

We believe that Parliament's right must prevail, otherwise democracy no longer functions. A government might decide to withhold documents to protect its ministers. These are the very words of the legislative counsel who says it would be unconstitutional to do so.

Immunity is increasingly under attack. Parliamentary immunity is the means used by democracies to avoid being taken to court every five minutes by those with interests different from ours, which are to serve the people and democracy. The heads of major corporations may not agree with us. If restrictions are placed on what we say in the House and in committees, we are not serving democracy. That is why immunity was built into the system. When witnesses appear before committees, they must have immunity and the laws of Parliament must prevail.

Listen closely to what a senior official from the Department of Foreign Affairs said to Richard Colvin before he testified before the committee. When Mr. Colvin appeared before the committee, the Judge Advocate General had already been asked to consult with his client and submit his interpretation of our claim. We did not get a response, but the witnesses did, and this is what the senior official from the Department of Foreign Affairs said:

“GoC does not share the Clerk's view of the effect of the laws adopted by Parliament—”

We specifically asked the Judge Advocate General for his client's reaction and instead of giving it to us, he intimidates a witness.

He goes on to say:

“—and as a Public Servant [he means Richard Colvin] we trust that you will conduct yourself according to the interpretation of the GoC”.

In other words, if Mr. Colvin is asked to keep quiet, to disclose nothing and to withhold documents, he must comply. To heck with parliamentary law.

“Should there be any concerns expressed by members of the Committee, those concerns should be referred to government counsel”.

That is called depriving a witness of immunity and intimidating a witness because the government is telling him what to do. That is what it is called.

How can we move forward under such conditions? It is very clear that a witness has been intimidated and it is very clear that the government wants to obstruct the committee's deliberations. A witness has been intimidated and his immunity breached.

Before I run out of time, I would like to talk about ministerial accountability. Yesterday, three witnesses appeared before the committee: the Minister of Foreign Affairs, the Minister of National Defence and the current Chief Government Whip, who is the former Minister of National Defence. They explained at length that national security is important and so is the Canada Evidence Act.

With regard to the delays in disclosing information, they say that they are not responsible and that public servants are usually in charge of the files. They also blame bilingualism, saying that translating the documents takes time.

In the 16 years that I have been a member of the House, I have always heard the same thing. The best way to delay a committee's work is to say that the documents are not ready. That is a ministerial responsibility. But what have the three ministers and the government been doing? They have been shirking their responsibilities and blaming everyone else.

As for censorship, they say that senior Justice Canada officials—the minister mentioned this earlier—are the ones who determine whether a document could pose a risk to national security. They are the ones who decide whether or not to black out huge parts of a document.

So what about ministerial responsibility? I am sick and tired of hearing ministers say it is not their fault. They are always saying that public servants are the ones responsible, or the Canadian armed forces.

Who in this government is actually responsible for anything? When a person becomes a minister, that person has a job to do. That is what ministerial responsibility means. They have to be responsible and accountable to the people. We will not allow ministers to shirk their primary responsibility, which is to tell the people of Quebec and Canada exactly what is going on. That is important.

We are sick and tired of being told that they are not the ones who intimidated witnesses, that the person who did that was Shawn Barber, a senior Foreign Affairs official. I think the Minister of Foreign Affairs is the one who should take responsibility when one of his officials messes up.

We are also tired of seeing ministers take everything out on their underlings. The ministers are never to blame. They claim not to have seen a particular document because National Defence receives thousands of documents every day.

That is not what I call exercising ministerial responsibility. They are shirking their duty as ministers if they are not professional and transparent and they are not keeping abreast of what is happening in their department. It is not true that a minister who has just faced a barrage of questions goes back to his office, sits down and says that there is no need to worry.

When one has a ministerial responsibility, one calls in one's staff and asks them exactly what is happening. If a minister does not do that, then he or she is shirking that ministerial responsibility. It is the ministers who are to blame for the current crisis. It is certainly not the opposition, which is trying to get to the bottom of things.

The blame lies with the ministers and the Prime Minister. They need to step up to the plate and exercise their ministerial responsibility. That is why we are being forced to introduce a motion in the House to have access to documents.

They are refusing to give the Military Police Complaints Commission and the Special Committee on the Canadian Mission in Afghanistan access to documents. Will they go so far as to deny Parliament access to the documents?

I would remind this government that it is in a minority position, not a majority position. That means that there are far more people today who have confidence in the opposition than in the government. If the government does not want to face that sad reality, too bad. We are certainly not going to abandon our role, which is to get to the bottom of things in a situation such as this.

One witness was silenced by a formal legal demand. The minister can go ahead and say that it did not come from him, but from a justice department lawyer. By the same token, the Minister of Foreign Affairs can say that it was a senior official in his department who did a given thing. But the fact remains that, ultimately, the minister is responsible.

To no one's surprise, we are going to support the opposition motion before us today. It will not stop there. I want the government to know that it is in for some problems. It can put up all the barriers it wants, but we will keep on defending democracy.

In the British tradition, we are the grand inquest and the government is the protector of the realm. It can go ahead and protect the realm, but its house of cards is going to come tumbling down. In fact, it has already started to fall.

We will be pleased to support the Liberal motion.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Madam Speaker, I thank my hon. Bloc Québécois colleague for his speech and for indicating that his party intends to support the official opposition motion.

I just want to emphasize one point, because the member mentioned that this is a minority government and, accordingly, that this government should not have done what it did.

In 2004, the Liberals formed the government and had a majority until the election at the end of June 2004. As hon. members will recall, the Standing Committee on Public Accounts began examining the Auditor General's report regarding the sponsorship program. The committee—I, personally, in fact, as a member and vice-chair of that committee—moved a motion demanding that the government hand over all documents from cabinet and the cabinet committee on the Treasury Board regarding the sponsorship program. The government, which had a majority at the time, acceded to the committee's request and provided all the documents. That was the first time in the history of the Confederation that a government handed over cabinet committee documents and reports, and we did not hesitate to do so.

I wonder what the member thinks of the Conservative government's behaviour, in light of that example.

[Claude Bachand, Bloc, Saint-Jean, QC]

Madam Speaker, I agree with the hon. member. Indeed, as my Bloc Québécois colleague—who was also a member of the same committee—explained to me, that committee did not need to push the matter back into the House for an order to be made there, because the government decided to hand over the information, which is to its credit.

I would also like to come back to the member's initial comments. I mentioned that the opposition forms the majority and the government has a minority. I would simply like her to think about what would happen if the Conservative government were given a majority one day and what situation we would find ourselves in then. What we are seeing now is just a fragment of what we could expect. I think it would be undemocratic if that were to happen.

[Laurie Hawn, Conservative, Parliamentary Secretary to the Minister of National Defence]

Madam Speaker, with respect to opinions, which is what we have received from various legal experts and people in the legal profession, an expert is someone who agrees with one. That makes the person an expert.

It is interesting to hear the member of the Bloc being so concerned about protecting the Constitution of Canada when in fact those members want to break up the country.

I have a simple question for my colleague with respect to the inadvertent release of the kind of information members are asking for. What is that member going to say to the family of a soldier or aid worker who has been killed because of the release of information, or because an international organization we had previously been able to trust, or that had previously been able to trust us, then withholds that information? What is he going to say to that family?

[Claude Bachand, Bloc, Saint-Jean, QC]

Madam Speaker, regarding the Constitution, it is clear that we cannot evolve in a constitutional vacuum. Even if we question the current structure of government in Canada, we are still required to respect the system in which we find ourselves, which is the Canadian system. There is a Constitution. If Quebec became sovereign, and I hope that it soon will, there will also be a constitution. A constitution is the very basis of a democracy. For the time being, we respect the Canadian Constitution.

The government's line of defence is always the same. It tells us that we are endangering the soldiers, that we are friends of the Taliban. We hear that all the time. That is not the issue here. There are a number of ways for a committee to work, and if we need to see secret information, we can see it.

The issue of in camera meetings is often brought up. That is what we want to address. The government should reveal the information to us, and we will be responsible enough not to disclose it outside the committee, because I do understand the operational side. However, I am tired of always hearing the government say the same thing. When someone wants to get to the bottom of things, the government says they have been manipulated by the Taliban, and that they are endangering our poor soldiers and their families. That is not the case. What puts our soldiers in danger is when the government makes some serious mistakes and then tries to cover them up, and when there are no legal provisions about how to hand over detainees to Afghan authorities.

That is what the government is doing with its lack of transparency, and that is more harmful to our Canadian troops than the people who want to get to the bottom of things.

[Jack Harris, NDP, St. John's East, NL]

Madam Speaker, I appreciate the comments of my colleague from Saint-Jean. The member and his party have supported our call for a public inquiry and the resignation of the minister, neither of which the government has agreed to yet.

Therefore, the committee work that is going on right now seems to be the only method, and it should go forward. This motion will help with that.

One thing that has come out in the committee from David Mulroney, the most senior diplomat involved, is that he said very clearly that in May 2007 or thereafter, we started to develop a database of people whom we had detained.

That is the closest the government has come to admitting that prior to then, it really did not keep very good track of whom it was detaining and what was happening to them.

Does that piece of information give rise to a greater need for us to know exactly what was known prior to that time by the government?

[Claude Bachand, Bloc, Saint-Jean, QC]

Madam Speaker, my colleague is right. We see in a number of documents that the government did not have an accurate record of all the detainees it handed over to the Afghan authorities. How can it claim that there is and was no torture when as soon as the detainees were handed over to the Afghan authorities, they were not seen again for weeks, months, even years? The detainees were probably handed over to the authorities and nothing more was ever heard about them.

There are also the very critical and very negative reports from all the non governmental organizations such as the Red Cross, Human Rights Watch and the Afghanistan Independent Human Rights Commission, which indicate that torture is everywhere.

The Geneva Convention not only says that we cannot hand detainees over to torture, but it goes even further and says that we cannot hand detainees over if there is a risk of torture. As we speak, there is a clear risk of torture and the chief of defence staff confirmed yesterday that there was one case of torture. We think there are far more cases than that.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, I guess as Canadians follow this story, they are a little confused why parliamentarians, who represent all the people in the country, are unable to have access to the documents. I think they have all heard about Parliament's unfettered right to call for persons, papers or records, and we have had many examples in the past and there have been challenges in the courts.

There is another way and I am wondering why the committee did not seek to have the government swear in as Privy Councillors those members of the committee who were not already Privy Councillors, which would in fact give them the chance to review the unredacted documents in camera. It would have been an eminently good approach, simply because the government and witnesses had declared there was nothing in the materials that would indicate anything about torture.

Were there other options considered by the committee?

[The Acting Speaker, NDP, Denise Savoie]

The hon. member for Saint-Jean has one minute to reply.

[Claude Bachand, Bloc, Saint-Jean, QC]

Madam Speaker, I would say to my colleague that it may be one way of proceeding. However, I must admit that the committee has not considered it just yet.

We have considered hearing witnesses in camera when dealing with a top secret passage. There are a number of security levels up to top secret. Those in the room would leave and the members could then listen to what the person has to say.

This also entails the responsibility of being bound by secrecy and not disclosing any information to the journalists waiting outside the room at the end of the committee session.

I appreciate my colleague's suggestion and we currently are in need of help. If other colleagues have good ideas we would like to hear them.

[Jack Harris, NDP, St. John's East, NL]

Madam Speaker, I am pleased to have an opportunity to join in the debate on the opposition day motion, calling for papers and documents to be presented in an uncensored form to the House.

However, before I talk about that, I want to emphasize what this whole issue is about. It is about Canada meeting its obligations under international humanitarian law.

I want to quote Brigadier-General Ken Watkins, who appeared before the Afghanistan committee several weeks ago. He was the one who laid out that transferring prisoners to a situation where there was a real risk of torture or abuse was contrary to international humanitarian law, the law of armed conflict. That is precisely the situation we are concerned about along with what Canada did in the period after it started taking prisoners.

I should have said, Madam Speaker, that I am sharing my time with the member for Ottawa Centre. Therefore, I will only have the first half of the 20-minute period.

The important point is the inquiry by the House of Commons committee on Afghanistan is in furtherance of trying to find out what the government did in order to meet its obligations.

What have we heard from the government? We have heard a defence based on, regardless of what happened, the fact that there is no proof any particular prisoner passed over by the Canadian Forces was subject to torture or abuse. This has been said many times.

On four occasions, on November 23, the Minister of Defence stated, “There has never been a single proven allegation of abuse” involving a prisoner transferred by the Canadian Forces.

The Minister of Foreign Affairs and International Trade said, on December 1, “Let me be perfectly clear. There has never been a proven allegation of abuse involving a transferred Taliban prisoner by Canadian Forces”.

On December 4, the Minister of Transport said, “There has not been a single proven allegation of abuse of a Canadian-transferred prisoner”.

We know that is not true. We know that is patently false. The government has been providing false information to the House.

What are we to do about it? Our party has called for a public inquiry based on the revelations of our diplomat, Richard Colvin, who, starting in May 2006, was writing memos and letters, six of them in 2006 alone, referring to the problems and passing them out. We have not seen those memorandums yet.

In fact, we have seen one, and this is an indication of why there is a need for uncensored documents, dated December 4, 2006. The subject line is “Afghanistan: Detainee issues”. It refers to earlier memoranda of July 25, 2006, October 6, 2006, and November 24, 2006. This was given to the committee with nothing on it. It was blacked out for pages and pages on end. Three pages of the entire text of that memorandum were blacked out, with nothing being disclosed to the committee. The reply directed to an ambassador was also entirely censored, although “redacted” seems to be the favoured word. The committee and the public were deprived of knowing what in fact Mr. Colvin was saying and talking about under the heading “Afghanistan: Detainee issues”.

We need to know. If there is nothing to hide, then the committee can find a way, as has been suggested, at looking at these documents, whether it be in an in camera meeting or whether a privy councillor opportunity or option is chosen, whatever way is needed, to ensure issues of national security are protected. The fact is this information needs to be made public and known.

Yesterday General Natynczyk confirmed what had been reported in the press, that, yes, Canadian detainees passed over were abused. The Canadian Forces took them back. Another individual they did not pass over because the interpreter overheard the Afghan police talking about killing the individual.

This confirms the concerns of Mr. Colvin and others about extrajudicial killings. This confirms the notion that the soldiers knew, in the summer of 2006, that there was a real risk of prisoner abuse or torture. In fact, they not only knew but they took pictures. They were taking pictures before they passed them over because they were concerned they might be abused, as had happened before.

That knowledge was live, on the ground and in the field in Afghanistan at that time, yet the government continued to order prisoners to be passed over to the Afghan authorities. That is the problem and we need to get to the bottom of it. The government does not want to have a public inquiry, which the House called for on December 1 when it voted on our opposition day motion. The motion was supported by the Bloc Québécois and the Liberals.

The government still refused to have a public inquiry and it refused our requests when the full extent of the lack of forthrightness by the Minister of National Defence and his misleading of the House on this issue came forward. Our request for him to resign and our insistence that he take responsibility as minister for misleading the House have both been refused.

We still have the committee at work and we do have the supremacy of Parliament, but we cannot have a situation such as the Minister of Justice suggests. Some individuals, using their discretion, are saying that members of Parliament cannot find out about what is going on. That is their position, but that is the wrong position. This has been very clear in the documents and the authorities. The claims of Crown privilege do not diminish or derogate from the power of a House to require attendance, testimony and production of documents.

A very comprehensive study was published called “The Power of Parliamentary Houses to Send for Persons, Papers & Records” by the member for Scarborough—Rouge River, an MP, lawyer and member of the House. He compiled all the authorities that related to the ability of a House and committees to get documents. There are provisions for a request by the government for committees not to take the parliamentary power to the extent.

Maingot writes:

With respect to federal public servants who are witnesses before committee... the theory of the compellability of a witness to answer questions generally may come in conflict with the principle of ministerial responsibility.

By convention, a parliamentary committee will respect Crown privilege when invoked, at least in relation to matters of national and public security.

In the final analysis, witnesses must rely on the collective common sense of the members of the committee and their good graces.

The Crown has the right to claim privileges, but the supremacy of Parliament is incontestable. While they may claim it, the power of Parliament is predominant and overrides that. This is a perfect example of where that needs to be the case. We have a Parliament where the majority of the members of Parliament sit in opposition to the government. The government is seeking to use means to prevent Parliament from exercising its power of being supreme through its committee.

This is an example of an important constitutional matter, the supremacy of Parliament over the executive. There may need to be means to ensure that something that should genuinely not be disclosed to the public is not, but being disclosed to the public and being disclosed to members of Parliament are two different things. I think members of Parliament understand and know that.

We support the motion. We think it is time that Parliament ensured its privileges are respected and that members of Parliament can be counted on to do their job and act in the public interest.

[Jim Abbott, Conservative, Parliamentary Secretary to the Minister of International Cooperation]

Madam Speaker, I would like to ask the member a very direct question.

Much of the information that has been blacked out, redacted has happened in order to protect confidential sources from which the Government of Canada receives the information. It is also done to protect the lives of Canadians who serve either in the military in other ways in Afghanistan.

Therefore, much of the information, even if he should be able to see it, in fairness to our ability as a nation to act in the world as a member of the world community and certainly to protect the lives of the Canadians who are there to do their thing on behalf of Canada, he would not be able to speak about publicly.

What will he do with this information? I find it rather curious that he wants a wholesale exposure of all the information. There is absolutely nothing in the motion that restricts us from having a wholesale exposure of this vital information.

[Jack Harris, NDP, St. John's East, NL]

Madam Speaker, the motion speaks to making it available to the House. This is a copy of the documents that the committee received so far, with all kinds of censorship.

The government talks about national secrets and all that, but contained in these documents is redactions of the number of detainees who were detained on a particular day in 2006. That is blacked out. How is that in any way concerned with national security today, three and a half years later, whether they detained two, or three or four people?

That level of detail is redacted, blacked out in such a way as to make the committee feel it does not trust the people who cross all this out. We do not think the information that needs to be available is available. The business of protecting lives is rhetoric that the government is using to try to hide behind.

Members of Parliament have to be trusted to see this so they can exercise their judgment about what the government knew and should have known at what relevant time.

[Paul Dewar, NDP, Ottawa Centre, ON]

Madam Speaker, one thing we know, as we have studied this file, and it goes back to 2006 for our party, is other countries did different things when it came to detainee transfers. It relates to the discussion today. There was much more transparency in the case of the U.K., and still is. In the case of the Dutch, every time there is a transfer of a detainee, their Parliament is informed.

The Conservative government is censoring documents on the numbers of detainees being transferred, as my colleague from St. John's East said, even back to 2006. It seems a little bizarre when the Canadian government says it cannot allow that information to be put out when our allies do it. In fact, back in 2006, our allies said to us that we needed to get a better process.

What does he think about our redaction and censoring versus our allies' sharing of information?

[Jack Harris, NDP, St. John's East, NL]

Madam Speaker, clearly, as the member for Ottawa Centre knows, the government has built up a wall of secrecy around this. It is unbelievable and unnecessary. As pointed out, the Dutch parliament is told the number of people captured each day as they are captured. Therefore, it obviously is not regarded as national security in any general sense.

The Conservative government does not want to make it known because it has this wall of secrecy and this idea that no one should know what goes on. That has been the real problem.

A full public inquiry would actually lay out for governments of the future and the current government what we have to do in order to comply with our international human rights obligations. We need to know that.

We do not really have faith that the government has it right. It cannot even get it right in terms of letting us know what is going on. It has not been providing the information we need. It has been giving false information to Parliament. This is an ongoing situation.

We need to have the answers. A start would be this committee doing its work. The full answer should be a public inquiry.

[Paul Dewar, NDP, Ottawa Centre, ON]

Madam Speaker, I want to start off by sharing with members of the House some of the information to which we have had access.

The debate today is around access to information, so that we can actually get to the bottom of what is happening, and perhaps is happening, with regard to the transfer of detainees from Canadian Forces to Afghan authorities.

One of the things that has been available to members of Parliament and the public is testimony from the Federal Court. I am going to be reading into the record some of the evidence that was provided during a testimony cross-examination of Kerry Buck, of course, a government official.

The questions were regarding what was happening on the ground in terms of investigation and follow-up. One of the challenges in this debate has been trying to figure out who is responsible for what, and most of the thrust of Mr. Colvin's message was trying to figure out what the roles of each of the institutions were: Canadian Forces, DFAIT, et cetera.

In this testimony, that is available and it is not censored, there was a question from the lawyer to Ms. Buck, asking:

In the next bullet he says [the detainee] that he was hit on the feet with a cable or a big wire and forced to stand for two days but that's all and he showed the Canadian officials a mark on the back of his ankle which he said is from the cable?

Ms. Buck answered:

Yes, that's the allegation.

The lawyer then asked:

Has that allegation been investigated? Do you know?

This is where it is important. Ms. Buck said that they really were not responsible for investigating.

We have heard time and time again from the government that there is not one scintilla of evidence that a detainee who was passed on from Canadian Forces to Afghan officials was tortured. The problem, and we see this in testimony here that I am reading into the record, is that there was no follow-up because the role was this. The Canadian Forces passed on detainees to the Afghan officials. After that, there was no investigation of allegations. In fact, it was reliant upon the Afghanistan independent human rights commission and the Red Cross to do that.

Here is where it gets interesting. When we have testimony of marks and individuals making allegations about being beaten, et cetera, there is an attempt to find out who is responsible. The government agrees that there are allegations and it claims that none of these allegations were ever proven, but it begs this question. If there were allegations, who was following up? If it was not a Canadian official, then obviously Canada will not know what is happening.

The question then is, who was doing it? We find out that there was no connection between the Canadian government and the follow-up to any investigations. I will just give a bit of the record to underline what I am saying.

Ms. Buck said:

Allegations are allegations. Some will be valid, some will not be valid.

At least she acknowledged that some of the allegations could be true. The question posed to Ms. Buck then was:

But we don't make any of our own independent assessment of the potential strength of the allegations?

Here is the answer. She said:

We don't. It's not our role. It's not our role.

The question then was:

It's not our role to determine whether there might be some kind of risk that detainees are being tortured?

The answer was:

No, it's our role to determine risk, but it is not our role to determine credibility of the allegations, to determine veracity of the allegations. We don't investigate those allegations. We record them.

The problem with that is the following. If we look at the evidence that we have available, we have the ICRC, and there have been articles written about this, having met with Canadian officials, saying, “You have a problem with the transfer process”.

It was not referring to the fact that detainees were passed over. It was what happened to them after, and the follow-up and the investigative procedure. We have Ms. Buck saying, for the record that they do not do that.

Mr. Colvin was saying at the same time that there was a problem, which he said in one of the memos that we did get, which was highly redacted and goes to April 2007. He said, “The position of the Red Cross is that each nation has international legal obligations regarding the transfer of detainees”.

What that means is not simply that we have a legal obligation to say we have handed them over, but to follow-up. This is where there has been a black hole. The government has always said there is no proof of any detainees being tortured. That was blown out of the water yesterday, but Conservatives continued down this path of basically saying that once we hand them over we are not responsible.

Some of the memos indicate that there was a debate, and this is reading the tea leaves, between DFAIT and Canadian Forces as to who was responsible once those detainees were handed over. I am reading a redacted memo from Mr. Colvin which said: “However, I would like to note that the ambassador remains strongly of the view that initial notification should be of handing over detainees should be by Canadian Forces and that secondly, notification of the Red Cross and the Afghan independent human rights commission should be sent as soon as an Afghan detainee is detained by Canadian Forces, not only in connection with his transfer to the government of Afghanistan custody. This would serve two important purposes. One is that it would underline DND's ownership of detention and DFAIT would assume responsibility for follow-up once a detainee is transferred to the government of Afghanistan”.

Here we have the debate Mr. Colvin has laid out of who was responsible. Was it Canadian Forces? Was it DFAIT? The generals and General Hillier, et cetera, all said that once they were handed over it was not their role any more. The soldiers who were writing in the field, and we heard from the Chief of the Defence Staff yesterday, said they were worried about handing them over because of what would happen. They said not only what would happen to this one particular detainee but it had happened before. So they did due diligence. They did their job. They took pictures. They wrote notes.

However, what we have here is the gap that there was no process to follow-up. The debate was saying whose role was it after a detainee had been handed over? Why were they concerned? Because as we have gone over many times, the Red Cross, the Afghan independent human rights commission, the state department, our own human rights reports done by DFAIT, all said there were problems with torture in Afghan jails. There were extrajudicial killings. The soldiers knew that. We had evidence yesterday from the Chief of the Defence Staff who said in the notes that were handed over: “Overhearing Afghan officials saying they were going to kill one of the detainees”.

The problem was obvious to everyone. The issue was, what did the government do about it? In this memo that was not highly redacted says there was a debate. Who was responsible? Colvin's note said that initially it was the Canadian Forces, after that it was the DFAIT officials. What we have though from Ms. Buck, what I already read into the record, is that we were not responsible for investigating after. There is a huge hole here.

Under international law, we are obligated to follow-up if there is a risk or a probability. That is very clear. So we need from the government all of the evidence.

It leads to my final statement on this and I will sum up, how can we trust the government with the present detainee transfer agreement, which I have concerns about in terms of investigation, et cetera? If we know before that the government was not investigating when it knew there was torture and there were international law obligations. From all the data in the redacted censored documents we have, there was a debate and a concern within departments, by the Red Cross and others. Conservatives seem to have ignored it.

Finally, we call on the government not only to bring forward these documents so we can have an actual overview of this without all the censoring but we need to obviously have an inquiry. If it is not able to do that, then it has lost the trust of this Parliament to actually be upfront and we remain concerned about the present agreement.

[Laurie Hawn, Conservative, Parliamentary Secretary to the Minister of National Defence]

Madam Speaker, the member continually confuses the timelines and I am sure he does that for his own reasons.

He talks about the ICRC and the AIHRC and how they were not passing information. That was the arrangement we had with them. We were trusting them to do that. When we found out they were not, we made changes. That is what he is completely missing, completely ignoring.

The ICRC has refuted the story about dealing with Canadian officials. It said it just does not operate that way. It said it has an excellent relationship with Canada. It said it would never go public unless there was a problem and it never went public.

He is not situating the timeframe for when anything was happening. Sure, there were discussions. They started in 2006 and carried on into 2007, when we actually made changes based on all the information we got from all sources.

I would ask the member to quit misleading the House and misrepresenting the situation by concentrating on what was happening in 2006 and not talking about what was going on in 2007, which is working very well today, notwithstanding that one Taliban got hit with a shoe.

[Paul Dewar, NDP, Ottawa Centre, ON]

Madam Speaker, I appreciate that sometimes rhetoric gets the better of us, but for the parliamentary secretary to say that there were some concerns about a prisoner only getting hit by a shoe undermines the actual notation by one of our soldiers. One of our soldiers, who reportedly the government supports, was very clear about the fact that there was concern about extrajudicial killings and torture, not about being hit by a shoe. I will put that aside, which is a big aside.

The ICRC said on three different occasions in meetings with ministers and officials that they were not doing their job. What the ICRC also said is that it does not tell Canadian Forces and officials what has been happening, that it only tells the host country. It is not mandated to. One of the ministers had to step aside and apologize because that was not clear.

On November 20, 2006, to specify the timeframe for the parliamentary secretary, officials drafted talking points based on the concerns of the ICRC. They drafted talking points. Does anyone know what the concerns were? The concerns were handing over detainees to probable torture. Instead of fixing the problem, the government was more concerned about talking points, spinning and trying to get the public onside rather than to fix the problem.

In 2006 that was happening. The member should know that. I know he does. This was not about someone being hit by a shoe. The field notes of that soldier were clear. There were beatings by police and that is why the soldiers made sure they rescued that prisoner and did the right thing. It does a disservice to our men and women in the field to say it was something else.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, this is a very secretive and defensive government. I asked a government member an hour ago why the government leaked Mr. Colvin's memos to the media and why it was obstructing the parliamentary committee's request for documents. There has been absolutely no answer to those direct questions.

I asked if the government had nothing to hide, why it obstructed the Military Police Complaints Commission. He said that the government was making documents available to the Military Police Complaints Commission, which I am not sure is the case. I would ask the member, would he like to elaborate a bit on that?

Once again, we have an obstructionist, defensive government that, when asked a pointed and direct question, skates around the issue, filibusters the question and does not answer it.

[Paul Dewar, NDP, Ottawa Centre, ON]

Madam Speaker, the government should do what, quite frankly, the Chief of the Defence Staff did yesterday. When one has a problem, instead of trying to lay talking points over it and build a wall of secrecy around it, one should deal with it.

The Military Police Complaints Commission has not been able to do its job because it was not getting the information it needed to do its job. We are not able to do our job in committee because the government keeps withholding information or the information that we get from the government is entirely blacked out.

We have a pattern of the government trying to deny the facts, withhold evidence, and block any kind of inquiry that will get to the bottom of what all of us are concerned about and hopefully the government as well, which is what is happening in the field. Are we living up to international law? Those are real concerns. They affect the men and women in the field and our reputation.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Madam Speaker, I am pleased to debate the motion today and I want to start by outlining where I will be going. I will look at the context of how we got here. I want to talk about the government obstruction, the rights of a committee, the importance of this issue to Canadians and, clearly, why we need a public inquiry.

There is no question that this is a very serious issue. As a parliamentarian, I need to have access to information in order to carry out my responsibilities, which include oversight of government.

The issue we are debating today has nothing to do with the actions of our forces on the ground. They are doing an outstanding job and we know that. We know that the men and women are performing in a first class way in the field. Having been there on two occasions, I know that for a fact. I know that our diplomats and our military are discharging their responsibilities. The question is whether the government is discharging its responsibility, not only to Parliament but also to Canadians.

It needs to be emphasized again that as parliamentarians and part of the special committee set up to oversee the work that we are doing in Afghanistan, we need to be able to inform Canadians. We cannot inform Canadians unless we have readily available information.

The question is also about Canada's international obligations, obligations in terms of the Geneva Convention and the issues of human rights. Again, when it comes to that, our soldiers are following the absolute letter.

The issue is clearly what the government knew if and when there were abuses when Canadian detainees were transferred to Afghan authorities, whether the Afghan police or the Afghan national army.

There is need for accountability. Government has to be accountable, and in this country the government is ultimately accountable to Parliament. Parliamentarians, if they have any role, it is the role of oversight. If they are to have meaning, and this is important on both sides of the aisle, they must have the ability to have oversight, to call for documents, to call witnesses and to be able to ask the questions that are sometimes uncomfortable for government but are needed in order to get the answers. Wherever that questioning goes, it is obviously important.

I give the example that we have, at the moment, a number of allegations out there. These allegations are difficult to deal with if we do not have the documents. We have had witnesses before the special committee who have obviously seen the documents, but they have seen them unredacted, without the black marks all over them. I know I am not allowed to use props, so I will not, Madam Speaker, you have probably seen them on television, but there are pages that are simply black. We do not know what their dates are or who was involved, because certain words are blacked out. Therefore, as a member of that committee, as vice-chairman of that committee, I cannot really determine very much if all I see are blacked out documents.

Talking about climate change, it is amazing the number of trees that we have cut down to produce these simple documents that do not tell members anything. Subcommittee members certainly are aware that many of the witnesses who came before the committee had access to those documents unfettered. I think it is very disturbing that witnesses would be able to look at the documents, but somehow members of the committee cannot.

Therefore, the purpose of today's motion is to deal with this issue. Later on I will get into the rights of the committee and, of course, the legal issues we are dealing with.

When we ask if the government is covering up torture, one would conclude that might be a logical assumption if the government is not in fact prepared to provide the evidence that committee members need. One would assume, unless, by chance, the government side of the committee has seen everything and we have not, that it would be of value to all members of the committee to have the unfettered documents. Apparently members on the other side believe that we can do the work without having the documents.

This country has a long tradition for human rights. It has a long tradition in the world on the issue of protecting the individual. Our central foreign policy has traditionally been on the issue human rights and the protection of the individual and the right to protect.

Therefore, it is absolutely critical that when there are allegations going back as far as 2006, we are able to investigate them in a manner consistent with the parliamentary motion of March 2008, which gave the committee that oversight of the very issue we are talking about.

A public inquiry then is what we are eventually going to be talking about, but in terms of the specifics of this committee, the committee has heard witnesses and different views. We have heard from Mr. Colvin, a respected diplomat. We have heard from three respected generals, and from Mr. Mulroney, our current ambassador to China. The issue is that we have heard testimony, but conflicting testimony.

Obviously if these individuals have access to documents that may shed light on where we can find the truth, we cannot do that unless the documents are produced.

The government has, from the very beginning, said there have been no credible cases of abuse. That has been the line in the House from day one, that we do not have any credible evidence. How can the government be absolutely certain?

On Tuesday, the Chief of the Defence Staff, General Natynczyk, who is a great Canadian and a very honourable individual, came before the defence committee and indicated that to the best of his knowledge, the individual in question in the Noonan report was in fact not a Canadian detainee transferred over to the Afghan national police. The general then took the extraordinary step yesterday of convening a press conference to indicate very clearly that new information had come to light and that, in fact, it was a Canadian detainee who was transferred.

The question of course then is what information came to light and why does the Special Committee on the Canadian Mission in Afghanistan not have that information? Clearly, the general has information that led him to say, no, what he had said on Tuesday was not correct and that on Wednesday, he had new information.

Everyone seems to have information except the very members of the committee who are charged with the responsibility of dealing with this issue. That is why we are saying that not only is there a cover up but also that we need a full public inquiry. Without a full public inquiry it seems that we are simply a Hollywood backdrop here. We are not able to get the kind of information we need. I cannot believe that members on the other side are not as frustrated as those of us in the opposition.

The government cannot, in my view, and I am sure many of my colleagues would agree, deny any further that there is no credible evidence. I say this because when Colonel Noonan did his report, they took photos of the individual before they turned him over, to be clear that there were no signs of any abuse, and they also took detailed notes. Later we found that there was.

The Canadian soldiers did their job. We are asking the government to do its job by providing the information that we need.

Again, General Natynczyk received information. He has now indicated that it was a Canadian detainee who was turned over. We need to know on what basis the general decided to go public and say this was in fact the case. Without that information it is difficult for us to do very much.

I realize that perhaps the motive or intent of the government is that the committee not be able to do its work successfully. I know the government would like this issue to go away. I know the government would like us to say that Christmas is coming and this will soon be off the front pages and we will not worry about this and that when we reconvene at the end of January, we will move on to something else.

However, this is a fundamental issue for Canadians. This is the issue of our role in the world, our role in terms of human rights. It is not something that we can slough off. It is not something we can say that because we are going to have Christmas break, we will not worry about it and everything will be fine.

We need to know what the government knew. Again, this has nothing to do with the performance of our soldiers on the ground. I keep hearing members on the other side saying that we do not support our soldiers, but there is not a member in the House who does not support our troops.

However, the issue is that we do not have confidence in the ability of the government to provide the truth, if it is not willing to give us information. We have two binders of information that are basically useless, because the information was redacted to the point where nobody could take it seriously. It is not easy to read a line and then a few words later on there are a few more words blocked out, and so on. There are pages that are completely blacked out. Who is the government kidding? As for the situation now, the government has denied the request of the committee on November 25 to see the uncensored documents. We said that we needed to see the documents.

There is a concern about whether or not this information should be in the hands of Parliament. We heard from Rob Walsh, a well respected law clerk and parliamentary counsel, whose view is that section 38 does not apply and that in this case, in fact, the supremacy of Parliament dominates.

Therefore, there are clearly ways for a committee to operate with a few sensitive documents, although these documents are obviously not sensitive for certain journalists who have had unfettered access to them. They are obviously not sensitive for certain witnesses who have come before committee and have had access to them in full. However, elected members of Parliament who have a responsibility for oversight apparently cannot be trusted with this information. As a member of the Privy Council, I cherish that title; but, unfortunately, I no longer have the ability to access such documents.

The reality is that either we are serious about this issue and serious about getting to the truth and about our international image and human rights, or we are not. If we are not, then the role of the committee is called into question. We have a parliamentary motion from March 2008 that was extremely clear on the issue of oversight, and particularly on anything to do with detainees. Therefore, this is absolutely fundamental to me.

The House of Commons public accounts committee recently tabled a report that outlines the constitutional right of Parliament to demand information and how parliamentary supremacy triumphs over all laws. In a letter dated December 7, my colleague from Vancouver South, our defence critic, indicated very clearly that parliamentary supremacy does in fact triumph and that we should have access to the documents. This was not something written on the back of an envelope; it was a very detailed letter outlining our case. Let me quote from that letter, which states in regard to the relationship between the government and the House and its committees that:

The law of parliamentary privilege provides that this relationship operates unencumbered by legal constraints that might otherwise seem applicable.

Therefore, we need to have this information and to be able to judge for ourselves.

The member for Vancouver South goes on to outline the following:

Sections 37 to 38.16, CEA, do not provide that they apply to the House or its committees and therefore cannot be read as applying to Committee proceedings or overriding the Committee's exclusive authority with respect to its proceedings.

Finally, if that is not clear enough for members on the other side, though I know it is clear enough on this side, let me just add the following. In keeping with the principles of responsible government, no part of the responsibilities of government can, by law, be categorically excluded or removed from its constitutional accountability to the House and its committees. Otherwise it would soon become only partial accountability and perhaps, after some years, no accountability at all.

It would be very troublesome to me if the government were not accountable at all. We are very fortunate that in this country we have a very functional, lively, probing opposition. The function of the opposition, of all three parties in opposition, is to keep the government on its toes. We look at cases in some countries around the world where the opposition is viewed as more of a pain. I am sure that members of the government see us as a pain from time to time, but the right of this opposition is to keep members of the government on their toes.

The right to order the production of documents is a matter of law. That is what we asked. On November 25 we said that we wanted to see these documents, unfettered. Mr. Walsh, again, said that if the committee asks for information, it gets it. Unfortunately, it is now December 10 and we do not have that information. The government should be following the rules. It must provide the documents that are requested.

This is troubling. This morning a poll indicated that Canadians are quite troubled. We are not just talking on behalf of ourselves. Canadians get it. Canadians understand the importance of this issue and what it means for Canada internationally.

At a policy level, responsibility lies with the government. It is up to the government to provide the information. I am sure if my friends on the other side were over here, and I know this for a fact because I have sat over there, they would be howling and screaming that we were obstructing the ability of a committee to do its work. In fact, the government is obstructing. As the government, it knows that we do not have the access that we need.

Obviously, protecting the rights of the detainees was part of that resolution. In terms of NATO it is our international responsibility to do that. We cannot knowingly turn a blind eye. My great fear is that the government wants to turn a blind eye and move on. This is unacceptable.

One of the things we are doing in Afghanistan, working with the justice ministry and the Afghanistan Independent Human Rights Commission, is we are enhancing human rights. We are talking about and seeing the application of the rule of law. If we are no better than the Taliban, then we are not doing our job. In fact, we are much better. What we are doing is we are saying to the Afghan government that in order for it to deal with these kinds of issues, this is what it needs to know and this is how to apply it. When I was in Kandahar and Kabul I saw for myself the type of in-depth instructions that Afghan police and soldiers get.

Unfortunately, there have been abuses. Even one credible case, which we now have from back in June 2006, means there could be others. Until the other day, the government said there were none. It accused us of all sorts of things. The reality is that one is too many. Obviously that is of great concern and why we therefore need a public inquiry. Only a public inquiry headed by a judge will get to the bottom of this, because the judge will have the ability to get all of the information needed in order to conduct the inquiry.

We saw what happened to the Military Police Complaints Commission. That has been shut down. The government has called public inquiries on other things, but on something as fundamental to Canadians, fundamental in terms of human rights, fundamental in terms of the rule of law, the government is stonewalling and saying no.

After yesterday, I would suggest there are no more excuses. There are no more deceptions. There is no more stonewalling. We need it. In fact, there is a resolution which the New Democratic Party put forward and which we endorsed as a majority in this House calling for that.

I would suggest that we will not get the facts as long as the government continues to obstruct. Therefore, a public inquiry is needed. It is needed to clear the air, and it is certainly needed for Canadians.