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House of Commons Hansard #128 of the 40th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was documents.

Topics

Subject Matter of Allotted Day Opposition MotionPoints of OrderRoutine Proceedings

10:55 a.m.

NDP

Tony Martin NDP Sault Ste. Marie, ON

Mr. Speaker, in the interest of the discussion this morning and with all due respect, I want to remind the Speaker of a passage in the recent O'Brien and Bosc publication that suggests Standing Orders give members a very wide scope in proposing opposition motions on supply days. Unless the motion is undoubtedly irregular, and that is where the procedural aspect is not open to reasonable argument, the Speaker does not intervene. We suggest this is such a time.

Subject Matter of Allotted Day Opposition MotionPoints of OrderRoutine Proceedings

10:55 a.m.

Regina—Lumsden—Lake Centre Saskatchewan

Conservative

Tom Lukiwski ConservativeParliamentary Secretary to the Leader of the Government in the House of Commons

Mr. Speaker, let us cut to the chase. The issue is the attachment of a substantive motion, and that is an order for the production of papers, to an allotted day motion under the business of supply. You know, as I and every other member in this place knows, that we cannot write legislation on an allotted day. Nor should we bypass the normal processes for the production of papers.

Subject Matter of Allotted Day Opposition MotionPoints of OrderRoutine Proceedings

10:55 a.m.

Liberal

The Speaker Liberal Peter Milliken

I have carefully considered all the arguments that have been advanced. First, I should cite to hon. members the citations that have been read by the hon. member for Mount Royal in his argument, largely.

On page 978-979 of O'Brien and Bosc, I will quote again:

The Standing Orders do not delimit the power to order the production of papers and records. The result is a broad, absolute power that on the surface appears to be without restriction. There is no limit on the type of papers likely to be requested; the only prerequisite is that the papers exist—in hard copy or electronic format—and that they are located in Canada....No statute or practice diminishes the fullness of that power rooted in the House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records.

I go back also to page 136 of O'Brien and Bosc, to further this:

By virtue of the Preamble in section 18 of the Constitution Act, 1867, Parliament has the ability to institute its own inquiries, to require the attendance of witnesses and to order the production of documents, rights which are fundamental to its proper functioning. These rights are as old as Parliament itself. Maingot states:

The only limitations, which could only be self-imposed, would be that any inquiry should relate to a subject within the legislative competence of Parliament, particularly where witnesses and documents are required and the penal jurisdiction of Parliament is contemplated. This dovetails with the right of each House of Parliament to summon and compel the attendance of all persons within the limits of their jurisdiction.

Therefore, in the circumstances and on the face of it, a motion to demand the production of papers is entirely in order. The question is whether it can be done on a supply day, as suggested by the parliamentary secretary in his submission.

The Chair has intervened once on a supply day, to prevent the supply day from being used as a vehicle for restricting debate on a bill, because it was something that was allowed for in other parts of the Standing Orders and so on, and then fitted in there. However, I believe this motion, which is demanding that documents be tabled in the House, is something that could reasonably be requested on a supply day.

It is not a procedural motion in that sense. It is demanding the production of documents. Supply motions have called on the government to do things. They have expressed House opinions on various things in the past and in my view, this one fits within that. Accordingly, in accordance with our practice in respect to supply days, I feel the motion is in order and will allow it to proceed.

It is unfortunate, if I may make this comment, that arrangements were not made in committee to settle this matter there, where these requests were made and where there might have been some agreement on which documents and which format would be tabled or made available to members. How they were to be produced or however it was to be done, I do not know, but obviously that has not happened.

We now have this motion here, and it seems to me the House has the power to do what a committee can do and then some. A committee could have requested this and demanded the production of these materials. The House can also do whatever a committee can do and then some. Accordingly I feel the motion is in order and I will allow the matter to proceed.

Notice of ClosureFairness for the Self-Employed ActRoutine Proceedings

11 a.m.

Prince George—Peace River B.C.

Conservative

Jay Hill ConservativeLeader of the Government in the House of Commons

Mr. Speaker, with respect to the consideration of the third reading stage of Bill C-56, An Act to amend the Employment Insurance Act and to make consequential amendments to other Acts, I wish to give notice that at a next sitting a minister of the Crown shall move, pursuant to Standing Order 57, that debate be not further adjourned.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

December 10th, 2009 / 11 a.m.

Liberal

Ujjal Dosanjh Liberal Vancouver South, BC

moved:

That, given the undisputed privileges of Parliament under Canada’s constitution, including the absolute power to require the government to produce uncensored documents when requested, and given the reality that the government has violated the rights of Parliament by invoking the Canada Evidence Act to censor documents before producing them, the House urgently requires access to the following documents in their original and uncensored form:

all documents referred to in the affidavit of Richard Colvin, dated October 5, 2009;

all documents within the Department of Foreign Affairs written in response to the documents referred to in the affidavit of Richard Colvin, dated October 5, 2009;

all memoranda for information or memoranda for decision sent to the Minister of Foreign Affairs concerning detainees from December 18, 2005 to the present;

all documents produced pursuant to all orders of the Federal Court in Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada

all documents produced to the Military Police Complaints Commission in the Afghanistan Public Interest Hearings;

all annual human rights reports by the Department of Foreign Affairs on Afghanistan; and

accordingly the House hereby orders that these documents be produced in their original and uncensored form forthwith.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11 a.m.

Liberal

The Speaker Liberal Peter Milliken

Since today is the final allotted day for the supply period ending December 10, 2009, the House will go through the usual procedures to consider and dispose of the supply bill.

In view of recent practices, do hon. members agree that the bill be distributed now?

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11 a.m.

Some hon. members

Agreed.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11 a.m.

Liberal

Ujjal Dosanjh Liberal Vancouver South, BC

Mr. Speaker, I will split my time with the member for Etobicoke—Lakeshore. What transpired before you had to make the decision to proceed with this motion goes to show the need for this motion to come before the House.

We reached the point where we had to bring this motion, for one simple reason. The government, the Prime Minister and the ministers simply do not have any moral credibility on this issue anymore. From the outset of this issue they have demanded that we take them at their word, but their word has no value anymore.

From the outset of this issue they have insisted there was no compelling evidence of detainee abuse or torture, but day after day and week after week the facts have continued to come out and the facts have said otherwise. From the outset of this issue they have attacked the patriotism and integrity of those who have demanded answers, accusing them of aiding and abetting the Taliban enemy. However, it is now their patriotism and integrity that looks shabby and shallow.

From the outset of this issue they have hidden very strong words, like “cowards”, behind the heroism and bravery of the soldiers on the ground. But now we know they have covered the facts on the ground in Afghanistan and they have launched an unprecedented smear campaign against the one person, Richard Colvin, whose evidence they could not silence.

We have asked for facts and received cynical spin. We have asked for accountability and received only evasion. We have asked for the truth and received everything but. All of this is because the Prime Minister and the minister have treated this from the outset as a partisan issue and not a moral issue, as a search for an alibi and not a search for truth.

The Prime Minister seems more concerned about his own reputation than he is about Canada's. The minister seems more concerned about keeping his ministerial limousine than about doing the right thing. It was sad to watch his performance in the committee yesterday. He spoke with mock indignation about outrageous and insulting allegations, conveniently forgetting the outrageous and insulting allegations he so cavalierly made against Mr. Colvin, a dedicated public servant who was powerless to defend himself.

He spoke with mock sadness about how we were denigrating the fine work of our soldiers on the ground in Afghanistan. It was an extraordinary position to take on the very day it was revealed that the government had somehow for two years overlooked the evidence of abuse provided by soldiers in Afghanistan who were acting in the finest Canadian tradition.

It has become all too clear that the government is simply unwilling to tell the truth. It has poisoned its own credibility. By their bare-knuckle, ultra-partisan approach to this most serious of issues, it has poisoned the well of trust in the House and in the committee. That is why we need access to all the documents related to these issues: non-redacted, unfiltered, unspun, and uncensored documents.

The minister appeared before the committee yesterday and said there are three investigations underway and that they should be sufficient to deal with this. First, he referred to the board of inquiry to investigate the treatment of individuals detained by Canadian troops in April 2006. That deals with the conduct of our soldiers on the ground. That is not the object of our inquiry in the committee.

Second, he referred to the Military Police Complaints Commission, which has been thwarted by a massive campaign of obstruction of justice from actually looking into this matter. Third, he referred to the committee on which I sit: the special committee on Afghanistan. That committee has been thwarted in its work by the government not producing uncensored documents in their entirety for the committee to see.

That is obviously why we need the documents. That is why it is urgent that this motion pass. It is not whether or not there was torture. There is an abundance of circumstantial evidence and real evidence of detainee torture in Afghan jails at the hands of the Afghan authorities.

Whether it is Human Rights Watch, the Afghanistan Independent Human Rights Commission, the UN reports, the U.S. Department of State, or our own annual human rights reports from Afghanistan, all of them go to show that abundant circumstantial evidence existed about torture in Afghanistan. The lack of any specific knowledge of any specific incident is not a defence to the continuing ignorant or wilful blindness of the government.

I want to quote Mr. Justice O'Connor in his report of September 2006. He said:

Canadian officials should not wait for “verification” or unequivocal evidence of torture in a specific case before arriving at a conclusion of a likelihood of torture.

That is a statement from Mr. Justice O'Connor, who headed the Arar inquiry. That should guide us. That is in keeping with the Geneva Convention, which essentially says that if we have circumstantial evidence, whether or not we have knowledge we have the responsibility to investigate and be careful we do not send people to a risk of torture where there are substantial grounds for the risk of torture.

We now know the government, from early 2006 to sometime in 2007, continued to send prisoners to a risk of torture. That is what we need to investigate. Why did it continue? Why did the government not take any action?

This is not about the conduct of our military on the ground. They have acted in the finest of traditions, as we learned from General Natynczyk yesterday. They have always done the right thing.

Ultimately there is a civil responsibility for all the actions that happened in Afghanistan, and that responsibility rests with the Prime Minister and the Minister of National Defence. That is why we need the unfettered, uncensored, unspun, unfiltered documents, to look at their conduct and whether or not they acted appropriately.

We heard the arguments advanced by the government to have this particular motion ruled out of order. The Conservatives have relied on section 38 of the Canada Evidence Act. They have relied on their excuses that they will give whatever is legally available to Parliament.

Now we know that Parliament has the unfettered, absolute right to order the production of papers and persons in this country. To my knowledge this Parliament has never fettered and never limited its own jurisdiction. The committee stands in the place of Parliament, and the committee has that unfettered access to these documents.

That is why I was very cautious in asking the Law Clerk for an opinion on the application of section 38. He sent me an opinion on October 23, 2009, which was tabled at the committee, that said we have unfettered access to documents and to witnesses who come before us and that those witnesses would be extended the privilege and immunity from prosecution if they were deemed to have violated any laws.

Then, based on some opinion it may have from the Department of Justice, the government said the Law Clerk's opinion is wrong. I asked the Law Clerk to provide me with a further opinion. He provided me with a further opinion on December 7, 2009, which has also been given to the clerk of the committee. It is public.

Then, on December 9, we received a letter from the assistant deputy minister, public law sector, of the Department of Justice, where it is finally admitted that the minister and the Prime Minister standing in the House and in the committee have been misleading Canadians; they have been misleading this House. The letter admits that while section 38 of the Canada Evidence Act has no application to parliamentary procedure, suddenly we learn the truth from a deputy minister within the Department of Justice.

Therefore, their whole charade, their house of cards came tumbling down.

Mr. Speaker, I wish to thank you very much for allowing this to proceed. I believe my time is ended. I will be happy to answer questions.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:10 a.m.

Kootenay—Columbia B.C.

Conservative

Jim Abbott ConservativeParliamentary Secretary to the Minister of International Cooperation

Mr. Speaker, I must say that it is with a sense of deep regret that this motion has come before this chamber in the form that it is in.

It is with regret because in an attempt by the opposition to embarrass the government, it is effectively putting at risk the lives of our soldiers and the future of our ability as a nation to be able to deal with international agencies like the Red Cross and other sources of information and intelligence that is so absolutely vital for our nation to be a player in the world. Not only a player in the world but if this information were to come in an unredacted, uncensored form, it would shutdown Canada's ability to be a citizen in the world and deal with other nations.

I find this motion to be absolutely reprehensible.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:15 a.m.

Liberal

Ujjal Dosanjh Liberal Vancouver South, BC

Mr. Speaker, if there is any embarrassment, it has been created by the government itself. The fact is that the government should concede that members of Parliament, some of whom are Privy Councillors themselves, may be as responsible as the government itself in protecting national security when they deal with the documents once disclosed. Why do Conservatives doubt the integrity of the members of the committee, that somehow the members of the committee pose a national security risk that if given the documents, somehow they will reveal secrets to the entire world?

I believe there is as much wisdom on the committee as there might be on the front benches of the government. I believe that we should have access to those documents and the committee will set its own procedure to ensure that we do the right thing by Canada, that we do the right thing by Canadian troops, and that we actually stand up for transparency and accountability to ensure the government is finally accountable for its actions or omissions.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:15 a.m.

NDP

Jack Harris NDP St. John's East, NL

Mr. Speaker, I certainly support the idea that we need to have these documents brought forward and that the rights and supremacy of Parliament must be upheld.

In listening to the hon. member speak, it is clear he does not want them to be tabled on the floor of the House, yet it appears this is what the motion suggests. I wonder if he would be willing at a later point to consider clarifying that because as he suggests and as the parliamentary counsel has suggested, the committee itself can find ways to ensure that national secrecy, if necessary, is protected. As the motion reads now, it seems to suggest that there is a call for the tabling of all these documents on the floor of the House. That seems to me potentially problematic. I hear what some members opposite are saying in terms of there may be secrets that need to be kept.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:15 a.m.

Liberal

Ujjal Dosanjh Liberal Vancouver South, BC

Mr. Speaker, I understand, as the member just said, that the House can do whatever the committee can do and then some. So the House can actually protect those secrets as well as the committee can in the way it transmits those documents to the committee.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:15 a.m.

Conservative

Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON

Mr. Speaker, together with my colleagues on the defence committee, we have special concerns about the confidentiality of what is in these papers. During an in camera meeting of the national defence committee the mover of this motion twittered what was being discussed to the universe. We have great reservations about the ability of the mover or colleagues to keep what is confidential for the security of Canada.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:15 a.m.

Liberal

Ujjal Dosanjh Liberal Vancouver South, BC

Mr. Speaker, these are the people who handed everything to Christie Blatchford.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:15 a.m.

Etobicoke—Lakeshore Ontario

Liberal

Michael Ignatieff LiberalLeader of the Opposition

Mr. Speaker, I would be grateful if you would let me know as my time draws to a close since I have an amendment to introduce. I want to thank the member for Vancouver South for his great work on this issue.

Recent events have confirmed that Canadians can be proud of the men and women serving in Afghanistan. It is not their actions that are being questioned, but those of the government.

Yesterday, General Natynczyk confirmed that a detainee transferred by the Canadian Forces was mistreated while in Afghan detention in June 2006.

The credibility of the Minister of National Defence is in tatters. Canadians cannot take him at his word. This Parliament cannot trust what he says. The issue here is trust.

General Natynczyk is making every effort to get at the truth, but the government is making no such effort. It continues to withhold certain documents and censor others. It has redacted with what can only be called Soviet zeal. It has intimidated witnesses and public servants. It has cast a chill over Canada's foreign service, as a growing number of former ambassadors have said publicly.

We must have the truth, uncensored and unredacted. That is the privilege of Parliament and the right of the Canadian people. That is the reason for today's motion. The government must account for an entire year of wilful blindness.

The Conservatives had credible information, even photographs, about torture and abuse, but did nothing to put an end to it. Instead they sought to cover up the facts. The issue here is the negligence of the Conservative government, not the behaviour of our soldiers. The questions raised will not be answered by the investigation announced yesterday by General Natynczuk.

We need a full independent public inquiry into the government's year of wilful blindness. This is not a partisan exercise because we are prepared on this side of the House for the inquiry to examine the whole length of the mission in Afghanistan beginning in 2001 under the previous Liberal government.

Let us remember how we got here. The sequence of events is extremely important.

On December 18, 2005, during a federal election, General Rick Hillier, then CDS, signed a detainee transfer agreement with the Afghan government.

The ministers opposite were sworn in on February 6, 2006, and the defence minister has admitted that he heard serious allegations of detainee abuse from the moment the government took office.

In March 2006, the U.S. State Department reported that Afghan authorities, and I quote: “tortured and abused detainees on a regular basis.” However, despite this information, the Conservative government carried on as usual. And a few weeks later, in spring 2006, the first detainees were transferred by the Canadian Forces.

In May 2006 Richard Colvin began sending reports of detainee abuse to his superiors.

On June 2, 2006, the Afghan independent human rights commission reported that a third of detainees handed over by Canadian Forces were abused or tortured in Afghan custody. On that same day Richard Colvin sent another memo with reports of torture in Afghan jails. Still the government did nothing.

Mr. Colvin sent three more reports before the end of 2006. He made additional reports in March, April, June and July 2007. Yet, 17 months, 17 memos, and still the government did nothing.

In 2006, the Canadian Embassy in Kabul had a report on human rights stating that torture was systematic in Afghan prisons. Once again, the government did nothing.

It was during the summer of 2006 that the detainee abuse confirmed yesterday by General Natynczyk took place. It was documented and reported by soldiers in the field who did their job. Still the government did not do its job.

In November 2006 the Department of Foreign Affairs actually issued talking points playing down reports of torture. Secret memos leaked to the press confirmed that the government's priority was spinning the issue rather than preventing torture from occurring.

In February 2007, there were three additional allegations of detainee abuse. That same month, the military police complaints commission initiated an investigation that was blocked by the government.

The government's year of wilful blindness only ended when graphic reports of abuse surfaced in the Canadian press on April 23, 2007.

It was not until May 3, 2007, that the government signed a new detainee transfer agreement. However, that did not put an end to the problems.

Mr. Colvin testified that inspections were infrequent because of a lack of resources. Even worse, he was instructed by his superiors to keep quiet and to stop documenting cases of detainee abuse and torture. Detainee transfers were suspended for the first time on November 6, 2007, because of reports of torture. They have been suspended a number of times since then.

Nevertheless, until yesterday, this minister and this government claimed that no detainee transferred by the Canadian military had been abused in Afghan prisons. We now know this is not true.

The record that I have just taken us through speaks for itself. For over a year the government had credible reports from multiple sources, independent credible Canadian sources, that Afghan detainees were being tortured in Afghan detention centres. These reports came from Canadian diplomats and soldiers in the field, and the government opposite did nothing.

It must account for that year of what can only be called wilful blindness. Its refusal to get to the truth is costing us our credibility as a nation on human rights and engages in a threat to the honour of Canada in the field, that honour which our troops so bravely defend every day. We need the truth. We need it now. Canadians deserve better.

Therefore, I would like to move the following amendment. I move:

That the motion be amended by adding immediately before the word “accordingly”, the following:

“All documents referred to by the Chief of the Defence Staff in his December 9, 2009, press conference; and all other relevant documents; and”.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:25 a.m.

Conservative

The Acting Speaker Conservative Barry Devolin

It is my duty to inform hon. members that an amendment to an opposition motion may be moved only with the consent of the sponsor of the motion. Therefore, I ask the hon. member for Vancouver South if he consents to this amendment being moved.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:25 a.m.

Liberal

Ujjal Dosanjh Liberal Vancouver South, BC

I do, Mr. Speaker.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:25 a.m.

Conservative

The Acting Speaker Conservative Barry Devolin

The debate is now on the amendment.

Questions and comments, the hon. member for Ottawa Centre.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:25 a.m.

NDP

Paul Dewar NDP Ottawa Centre, ON

Mr. Speaker, I welcome the amendment. The Leader of the Opposition enumerated very well the concerns that we have all had. We moved a motion in committee to have documents released and, of course, we did not get what we asked for. Therefore, we welcome this amendment.

I have a question regarding the importance of receiving the notes that were written in the field. It was established yesterday by the Chief of the Defence Staff that in fact there was more information.

My question for the Leader of the Opposition is this. If we are able to get that information, is he asking that it be shared with Parliament in an uncensored form? That is my first question.

A supplement to that would be, if we are able to get the information forthwith, is he hoping we get it by tomorrow? What is the timeline that he hopes we get the information?

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:25 a.m.

Liberal

Michael Ignatieff Liberal Etobicoke—Lakeshore, ON

Mr. Speaker, it must follow from the nature of the motion that we have put forward that those documents must be uncensored. That is the answer to the first question. Second, it is our assumption that we are talking about immediate delivery of those documents, which is tomorrow.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:30 a.m.

Niagara Falls Ontario

Conservative

Rob Nicholson ConservativeMinister of Justice and Attorney General of Canada

Mr. Speaker, I stand today to express my opposition to the motion, as amended, now before the House.

I am convinced that it would be serious mistake for the government to produce the many documents referred to in the motion tabled by the hon. member for Vancouver South. Producing verbatim copies of these documents would jeopardize not only the security of Canadians serving in Afghanistan, but also Canada's relationships with other countries. Furthermore, the release of unedited versions of these documents would be clearly inconsistent with parliamentary convention related to the protection of sensitive information.

The Parliament of Canada has established important rules under the Canada Evidence Act in relation to the handling or disclosure of information concerning international relations, national defence or national security. The values underlying Parliament's intention to protect the national security of Canada from harm by unauthorized disclosure of sensitive information must inform the actions of ministers and officials.

Parliament exercises significant powers, yet Parliament also appreciate the importance of protecting confidential information. This is evident in statutes such as the Security of Information Act, the Canada Evidence Act, the Access to Information Act, the Privacy Act and the Criminal Code. The principle of public interest immunity is also well established in the common law. These principles also find expression in parliamentary convention.

The government's position on the matter is clear. We must make every effort to protect sensitive information that, if disclosed, could compromise Canada's security, national defence and international relations.

The government's position on co-operating with the parliamentary committee is also clear. We will continue to support the work of committees and provide any and all information that does not compromise the national interest.

The government rejects the notion, however, that parliamentary privilege somehow relieves public servants appearing before committee of their obligation to protect sensitive information that relates to national security, national defence or international relations.

As I am sure the members of the House will appreciate, there is a well-established parliamentary convention that committees will respect common law privileges and Crown immunity, particularly in relation to national defence, national security or international relations and not require the disclosure of injurious information.

The authoritative text, Parliamentary Privilege in Canada by Joseph Maingot makes this point clearly on page 191:

With respect to federal public servants who are witnesses before committees of either House, the theory of the compellability of witnesses...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.

To link this statement with the motion now before us, members of the House must acknowledge that important issues of national security are at stake and should therefore abide by parliamentary convention and respect the government's actions to protect sensitive information.

In essence, parliamentary convention must govern committee practices and procedures. Further support for this conclusion is provided by a 1991 report of the Standing Committee on Privileges and Elections, published as part of the Journals of the House. To quote from that:

The House of Commons recognizes that it should not require the production of documents in all cases; considerations of public policy, including national security, foreign relations, and so forth, enter into the decision as to when it is appropriate to order the production of such documents.

The House must exercise its powers responsibly. In some cases, the only responsible option is for the House and its committees to refrain from pressing the theoretical extent of their powers.

The government's concerns for national security informed an earlier decision to redact documents submitted to the Military Police Complaints Commission, also known as the MPCC. The decision reflects the fact that the MPCC operates in a significantly different legal environment than parliamentary committees.

On the subject of the extent of the redactions, no other tenable option existed once the MPCC decided to hold public hearings. The decision provided the MPCC with the power to compel testimony and to order the production of documents. The hearing therefore met the definition of a proceeding under section 38 of the Canada Evidence Act.

It is important to note that before the MPCC announced its intention to hold public hearings, government officials provided it full access to thousands of pages of unedited documents produced by Canadian Forces and the Department of National Defence.

The decision to redact documents is not taken lightly and reflects the absolute need to protect sensitive information. Pursuant to section 38, officials redacted the documents. Copies of these edited documents were later provided to the Special Committee on the Canadian mission to Afghanistan.

While section 38 of the Canada Evidence Act may not apply directly to proceedings of a special committee, the values that inform that legislation, passed by Parliament, are consistent with the parliamentary convention that harmful information should not be disclosed in a parliamentary setting. Accordingly the process under section 38 of the Canada Evidence Act serves as a useful surrogate to identify information that should not be disclosed to the special committee due to concerns related to national security, national defence or international relations.

The government fully supports the special committee and believes it plays an important role in Canada's democracy. Respect for legal duties enacted by Parliament is also essential to the health of our democracy. Ultimately, however, restricting access to particular information is justified by a more important goal, one that serves the best interests of Canadians.

The Supreme Court has acknowledged that the government must, on occasion, withhold sensitive information. In the R. v. Thomson decision, the Supreme Court stated clearly, “all government must maintain some degree of security and confidentiality in order to function”. It also confirmed that an act of Parliament would apply to the House of Commons expressly, as in the case of the Official Languages Act or implicitly as in the case of the Canadian Human Rights Act.

In the case the House heard about a little earlier, the Canada (House of Commons) v. Vaid, which is a 2005 Supreme Court of Canada case, the Supreme Court rejected the argument that the Canadian Human Rights Act had no application to the House of Commons because it did not so expressly provide. The Supreme Court held that the argument was “out of step with modern principles of statutory interpretation accepted in Canada” and that the proper approach was to construe the words of the act in their entire context, having regard to the scheme, object and remedial purpose of the act.

Although our debate today focuses on a point of parliamentary privilege, we must never forget that it also directly affects the lives of Canadians serving on the front lines of a deadly conflict a half world away.

As members of Parliament, we must never lose sight of the fact that men and women continue to put their lives at risk to defend our country and all that it represents. We must not sacrifice the safety of these brave souls on the altar of parliamentary privilege. Yet this is precisely what the motion before us today proposes to do.

To understand what is at stake, one must recall that Afghanistan's Taliban government played a central role in aiding and abetting a series of terrorist attacks against Canadians and Canada's allies.

Seven years ago, Canada deployed troops, in support of the invasion led by the United States to oust the Taliban and diminish the capacity of terrorists in Afghanistan to strike targets in the west. While the mission has evolved somewhat over the years, thousands of Canadians continue to serve in Afghanistan as part of an international effort to root out insurgents and to promote peace, prosperity and justice.

Last year, the members of the House voted overwhelmingly in favour of extending the mission through 2010.

In recent weeks, top officials from the Canadian Forces and several federal departments have provided evidence about the legal status of detainees and about the practices and procedures Canadian officials followed to ensure that they honour international laws and conventions.

On November 4, for instance, Canada's Judge Advocate General, Brigadier-General Kenneth Watkins, stated that:

The policies and procedures put in place by the Canadian Forces in Afghanistan and the legal test that must be satisfied before detainees can be transferred are all meant to ensure compliance with these international legal obligations.

During the same session, the committee heard testimony about the series of increasingly rigorous agreements and practices implemented by Canada, expressly to prevent the abuse of detainees.

A December 2005 agreement between the militaries of Canada and Afghanistan, signed under the Liberal government, empowered the International Committee of the Red Cross to monitor and report on the status of detainees. A more robust follow-up agreement, signed in 2007, enlisted a second independent monitor, the Afghanistan International Human Rights Commission, and restricted the movement of detainees captured by Canadians.

In addition to these measures, Canadian officials continue to monitor the treatment of detainees captured by our soldiers. When these officials found credible evidence of abuse, Canada temporarily halted the transfer of prisoners to Afghan officials in November 2007. The transfer resumed a few months later, once those concerns had been addressed.

The release of at least some of this information would clearly undermine the safety of Canadian officials working in Afghanistan. Information about when and how Canadian officials visit a particular prison, for instance, would be of great value to the insurgents and to the terrorists. They could use this knowledge to attack our monitors and free the detainees.

One can only imagine how the enemy would interpret and exploit other top secret information. It would be a grave mistake to underestimate the terrorists. They are both sophisticated and brazen. Among the more than 100 Canadians to die at their hands are three civilian aid workers and one senior diplomat.

We cannot lose sight of the fact that our soldiers are not the only ones engaged in this dangerous mission. The Government of Canada must do its utmost to protect everyone it assigns to Afghanistan.

It is this duty to protect that inspires my opposition to the motion before us today. The Government of Canada must not abandon this duty in response to the committee's investigation into the conduct of Canadian officials responsible for prisoners captured in Afghanistan.

There can be no doubt that this government has in fact co-operated with the committee. The government has ordered senior military personnel, diplomats and other officials to appear, often on short notice and often travelling vast distances. Their candid testimony has enabled committee members to gain critical knowledge about the capture and transfer of detainees.

All of these witnesses recognize, however, that they must not disclose information that might compromise Canada's security or international relations. As dutiful, honourable public officials, these witnesses respect the laws passed by Canada and the policies implemented by government that protect confidential information.

The allegation that the Government of Canada seeks to obstruct or interfere with the committee's work by denying access to documents is completely untrue. The committee has requested a considerable number of documents, and government officials continue to work hard to satisfy this request. The process will take some time because many of the papers contain top secret information.

Parliamentary committees are essential and valuable components of Canada's democratic system. Canadians appreciate the analysis and the perspective that committees can bring to the issues of the day, but Canadians expect committees and Parliament itself to exercise those powers responsibly and reasonably and in accordance with parliamentary convention. Canadians do not accept that the relatively narrow interests of a single committee are more important than the safety of our men and women serving in Afghanistan.

Given these realities, restraint and caution must be our guide. The government must not release information under any circumstances that could jeopardize national security and international relations. I encourage my hon. colleagues to vote down the motion that is before us today.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:45 a.m.

Liberal

Shawn Murphy Liberal Charlottetown, PE

Mr. Speaker, let me say at the outset that I find this whole debate somewhat disturbing. You made a ruling earlier that the law is very clear that Parliament has the unfettered right to seek the production of persons, papers and records, and if it is to be banned by statute, that statute has to expressly make reference or restrict that fundamental right.

Up until now we have heard answers and comments from the minister and the Parliamentary Secretary to the Minister of National Defence saying that this was all covered by section 38 of the Canada Evidence Act. We have had one opinion from the parliamentary legal counsel. We have a second legal opinion from the parliamentary legal counsel. I understand yesterday it was disclosed that the lawyers who work for the Department of Justice, who work for the previous speaker, agree with that opinion. It seems to me that this whole House has been misled for the last six months.

Does the minister agree that that premise has been misleading this House, and if so, does he not agree that the conventions of this House dictate that the minister should resign?

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:45 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

Mr. Speaker, the government has been very clear on the question of redacted documents and the documents that were placed before the Military Police Complaints Commission. The proceedings before that body were within the parameters of the Canada Evidence Act and section 38, with respect to the protection of those documents. That is why there was a number of redacted documents.

Those documents were made available to the committee and others, but it was on the basis that they were presented to the Military Police Complaints Commission that the redaction took place. It was clearly within the ambit of the Canada Evidence Act.

With respect to the behaviour and constraints, or lack of constraints, for parliamentary committees, the point that has been consistently made is that the interests of national security have to guide us at all times in our roles as parliamentarians in this. I quoted the Supreme Court of Canada decision in House of Commons v. Vaid, which made it clear that indeed Parliament and the House of Commons were subject to the Canadian Human Rights Act, even though there was no express provision in any act that it does apply to Parliament. However, when the Supreme Court of Canada had a look at it, it came to the logical conclusion that to hold otherwise would mean that we would be out of step with the modern principles of statutory interpretation accepted in Canada.

Indeed, just as the Canadian Human Rights Act applied for the very good reasons that were made in that decision is the point my ministerial colleagues and I are bringing before the House. The protection of Canadians serving abroad, the national security of these interests have to guide us in all our actions, just as the Canadian Human Rights Act guides Parliament with respect to its activities with respect to its employees, surely the national security is of importance to all members of Parliament. Any attempt that might compromise that, or expose these individuals, and as I pointed out not only are there members of the armed forces, but there are civilians working there on behalf of the government as well, any attempt that might expose them to danger or tip off the terrorists for whom they are targets, must be resisted. That concept must be completely understood by all parliamentarians in the exercise of their responsibilities.

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:50 a.m.

NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, we are dealing today with a Liberal opposition motion regarding Afghan detainees. We know the government has been hiding from this situation for the last four years. In fact, the Liberals, to give them credit, have agreed that the public inquiry that should be called should include their time in office as well. They have been fairly open about that.

The question I have for the government member is, why did the government leak Mr. Colvin's memos to the media and why is it obstructing the parliamentary committee's request for documents? If the government has nothing to hide, then why did it obstruct the Military Police Complaints Commission and why will it not get a public inquiry under way right away?

Opposition Motion—Documents regarding Afghan detaineesBusiness of SupplyGovernment Orders

11:50 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

Mr. Speaker, the government has been completely co-operative with the Military Police Complaints Commission, the MPCC. It has provided innumerable documents to that body and has done everything possible to comply with the work of that body within its mandate. That is very clear.

One of the very interesting comments by the member is that the Liberal Party would like a public inquiry to include its time in office. I say that the Liberals should step forward. If they know of any mess that they covered up or any mess at all during their time in office, I suggest they step forward and not wait until there is a public inquiry. They should do what we are doing. We are making documents available and co-operating with the committee and the MPCC.

The NDP says the Liberals would welcome some sort of examination of their time in office and how they handled this. We already know how ineffective and challenging their arrangements were with respect to prisoner transfer and it took a Conservative government to correct it and tighten it up. We know that for sure.

I ask them to step forward and give us all the information they know of or were covering up during their time in office.