Mr. Speaker, I rise today on a question of privilege concerning the House of Commons' right of access to documents it deems necessary to hold the government to account.
As the Speaker of the House will know, the Special Committee on the Canadian Mission in Afghanistan is studying the issue of Afghan detainees captured by Canadians, who may have been subjected to torture, and potentially Canada's complicity in violation of its obligations under international human rights law and other matters.
I will not repeat to the House how vital and fundamental such a responsibility of Parliament is. It is part of our duty, and one of the fundamental roles of the House of Commons, to hold the government to account. In order to assist us in doing that, Parliament has certain rights, privileges and powers.
It is only through this House and the elected members of this House that Canadians are able to hold the government to account. That is a basic tenet of our democracy. In fact, that right is recognized explicitly in section 18 of Canada's Constitution Act, 1867. In fact it has been, I suppose not surprisingly, recognized as a constitutional right in the House, notably on October 31, 1991 by Speaker Fraser, at page 4309 of that day's Hansard.
Also, the Supreme Court of Canada confirmed, recognized and acknowledged that this is a constitutional right and a constitutional privilege of members of the House of Commons to carry out their work. It was recognized by the Supreme Court of Canada in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) found in the 1993 Supreme Court of Canada Reports at 1 S.C.R. 319.
In pursuance of its obligations to carry out the investigation, members of the Special Committee on the Canadian Mission in Afghanistan asked for certain papers and have sought the assistance of this House to get them.
On December 10 this House passed the following motion:
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--
--I underline “urgently requires”--
--access to the following documents in their original and uncensored form:
The motion then notes the list of documents requested and follows with:
--accordingly the House hereby orders that these documents be produced in their original and uncensored form forthwith.
Forthwith, I suppose, is subject to some interpretation. However, over three months have passed since that House order was made and not one single document of any kind has been presented to the House in response to that order. In fact, 14 weeks have passed and no response has come from the government, nor has the government put in place, or sought to put in place, a parliamentary process to make these documents available.
There has been no approach, to my knowledge, to other members of the House or to members of the Special Committee on the Canadian Mission in Afghanistan. There has been no attempt to devise a method for receiving these documents by members of Parliament, despite the publicly expressed willingness by me and others to discuss this issue and find a way of bringing them before the House.
Page 475 of O'Brien and Bosc states that orders for the production of documents must be met “within a reasonable time”. Given that the government prorogued the House on December 30 and we did not meet again until early March, the government has had plenty of time to work out a method to make these documents available to the House and to honour the order. The government has failed to do so.
We recognize that the government cannot and should not be expected to dump hundreds or thousands of pages of unredacted documents on the table of the House of Commons. That is not what the House has asked for. It has demanded its constitutional right for a procedure to hold the government accountable for its actions.
We are aware of national security concerns and we have indicated publicly our willingness to discuss these valid concerns and provide a method of protecting them. However, we are not prepared to compromise on Canadians' right to have an accountable government that does not use national security as a catch-all phrase to cover up embarrassing or damaging information.
In a number of press articles shortly after the vote in this House, the Canadian Press for example stated on December 12:
The Conservative government indicated Friday it was prepared to ignore a parliamentary vote calling on it to release uncensored information on enemy prisoners.
The Minister of Justice is quoted as saying:
Parliament exercises significant powers, yet Parliament also appreciates the importance of protecting confidential information.
The government's position on this 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.
Following the break and following the failure of government to deliver a document to members of Parliament, my colleague from Ottawa Centre wrote to the Minister of Justice on February 3, 2010 asking for the production of these documents. He said:
The production of these documents is essential to the ongoing study at the Special Committee on Canada's Mission in Afghanistan on the transfer of Afghan detainees. Canadians deserve full accountability from their government on the detainee file.
Then he said:
Furthermore, I would like to ask you as the Attorney General whether you will obey this House Order?
That was on February 3 and on March 11, over a month later, there was a reply from the Minister of Justice. In it he did not indicate that any documents would be forthcoming. In fact, he discussed the appointment of Mr. Iacobucci. He said:
Mr. Iacobucci will report to me on proposed redactions, including on whether the proposed redactions genuinely relate to information that would be injurious to Canada's national security, national defence, or international interests.
He went on to say:
Mr. Iacobucci will prepare a report in both official languages that I will table in the House of Commons. That report will include a description of his methodology and general findings.
I have both of those letters and I would ask for the unanimous consent of the House to table those letters.