Mr. Speaker, the government has appointed a retired Supreme Court justice, Mr. Iacobucci, to review the documents and advise the government on this matter.
As you know, Mr. Speaker, the government has the right to seek advice from anyone it wishes, whether it be Department of Justice lawyers or other lawyers, or retired justices who are continuing to act as lawyers. That is certainly the government's right. In this particular case, the government waited three months to even consult with Mr. Iacobucci.
As far as we are concerned, it is not a major concern to this House that the government is seeking advice. Obviously, we have respect for Mr. Iacobucci. The government has the right of course to consult with any number of people, but it does not change the order of this House. The order is binding, and with consultation or no consultation, the government must obey.
The government's establishment of a separate parallel process outside of parliamentary oversight, parliamentary accountability, or even involvement, does not satisfy the very explicit requirements of the House in relation to the documents. For all intents and purposes, therefore, the engagement of Mr. Iacobucci to give the government advice is irrelevant to this motion.
I would like to address the potential argument that the government may make to excuse its behaviour.
In O'Brien and Bosc, page 83, it states that a breach of privilege includes “deliberately altering, suppressing, concealing or destroying a paper required to be produced for the House...”. It may also involve failing to produce papers formally required by the House without a reasonable excuse, or disobeying a lawful order of the House without a reasonable excuse.
This includes the defacing of documents by redactions, expurgations, black marks or whatever we want to call it, and we have all seen those documents, certainly is destroying or concealing a paper required to be produced by the House, and therefore we expect to get them in their unexpurgated form.
The question is whether there is a reasonable excuse for disobeying an order of this House. It is clear to us that this a breach of the privileges of the House. In fact I would go so far as to say that the government's behaviour is tantamount to contempt for this House. The government may take issue with the phrase “without reasonable excuse”, and I want to address it directly.
There is no reference in our Standing Orders to national security. In fact we see the issue of national security as a red herring. Parliamentarians have themselves acknowledged the valid national security concerns and have repeatedly indicated their willingness to work around them.
The motion that passed in the House in December did not say that the documents must be publicly tabled, placed on the Internet or handed out to the public for all and sundry. The motion allows for flexibility and for an approach by the government to work with the opposition parties and parliamentarians to satisfy the concerns on all sides. It is not acceptable to use national security as an excuse to hide embarrassing information. It is also not acceptable to use it as an excuse when the government has made no attempt to work around it.
There are numerous ways that the documents in question could have been made available without divulging state secrets, and there is no reasonable excuse for failing even to address the issue in the House. These issues have been discussed with the parliamentary law clerk as to how a committee could receive documents and yet protect national security. What we need to do is find a way to acknowledge and respect the privileges of members of Parliament to hold the government to account on behalf of Canadians, while at the same time protect national security.
Mr. Speaker, I firmly believe that there is a clear case for the finding of a prima facie breach of privilege, and if you agree, I am prepared to move a motion. I want to indicate that this motion has already been discussed with other members of the opposition parties. The Bloc Québécois has indicated that it supports our motion in this regard.
It is important to put the motion on the record to understand where I am coming from in terms of what we expect to see happen in order for the House to be able to exercise its parliamentary privileges, and at the same time, find a way to get these documents before it so that we can do our constitutional duty.
The motion would read as follows: “That the House considers that the government's failure to provide the documents specified in the order of December 10, 2009, is tantamount to contempt and therefore orders the Minister of National Defence, the Attorney General and the Minister of Foreign Affairs to be called before the bar of the House immediately and hear the Speaker read this order to them:
That it be an instruction to the Special Committee on Canada's Mission in Afghanistan to adopt rules and procedures for the reception and handling of the documents demanded by the House order of December 10, 2009, in a manner that safeguards national security and other confidentiality requirements while respecting parliamentary privilege, after receiving advice from the law clerk and parliamentary counsel;
That the special committee report these rules and procedures to the House no later than 21 calendar days following the adoption of this order, provided that if the House is not sitting when the report of the committee is completed, the report may be deposited with the Clerk of the House and it shall thereupon be deemed to have been presented to the House, provided that no later than 6 p.m. on the 20th calendar day following the adoption of this order any proceedings before the special committee shall be interrupted, if required for the purpose of this order, and in turn every question necessary for the disposal of the report shall be put forthwith and successively without further debate or amendment; and
That, on the 30th calendar following the adoption of this order, if the government has not provided all the documents to the special committee, which shall receive them on behalf of the House in their original and uncensored form, at the next sitting of this House the first order of business shall be the consideration of a motion that the Minister of National Defence, the Attorney General and the Minister of Foreign Affairs be found in contempt of the House and that such a motion shall have priority over all other business until it is decided in the same fashion as a motion relating to a question of privilege”.
Mr. Speaker, I would be prepared to move that motion if you should find that there is a prima facie breach of the privileges of this House. I would note that there have been consultations on this motion with the table officers as to its form and compliance with parliamentary rules and it is in a form that we believe can be presented to this House.
That is my presentation on parliamentary privilege. I believe there has been established a prima facie breach of privileges of members of this House by the attempt of the government to delay and avoid accountability, and I ask that you so find.