Reg Whitaker

On April 27, Peter Milliken, Speaker of the House of Commons, ruled that Parliament had the right of access to unredacted documents in the Afghan detainee issue, in order to fulfill its constitutional duty to hold the government accountable. As many observers said at the time, this was a landmark ruling, in two senses.

First, it opened up the possibility that some light might finally be cast on the troubling issue of possible Canadian complicity in torture, after all previous attempts at transparency had been blocked by an obdurate government.

Second, it clearly affirmed the supremacy of Parliament, which had been under siege by successive governments, both Liberal and Conservative, intent upon establishing executive control over all aspects of administration to the virtual exclusion of Parliament. What was even more striking was that this affirmation was in the area of national security, traditionally seen as strictly an executive prerogative.

The Harper government appeared to accept the ruling, and hopes were raised that a corner was actually being turned. When all parties agreed on May 14 on a draft outline for how a special committee would handle unredacted documents, the prognosis was optimistic.

It was clearly specified that the designated MPs, one from each of the four parties, would have unrestricted access to all relevant documentation. While it was acknowledged that many documents could not be disclosed to the public, according to the provisions of the Access to Information and Privacy acts, the final decisions on what could be released publicly would be left not to the Justice Department lawyers (part of the executive), but to a special Panel of Arbiters, comprised of ‘eminent jurists’ chosen by the designated MPs of all parties.

While some questions might remain about this process, the important point was that the MPs were supposed to see all unredacted documents before any decisions were made about public disclosure. In other words, MPs would be in the same position as commissioners in public inquiries. Since the Harper government had rejected all calls for a public inquiry into the Afghan detainee issue, it seemed possible that a parliamentary committee might play something of the same role as a public inquiry.

This was the high point of cooperation. The parties were then supposed to hammer out a final detailed agreement that would lay the ground rules, to follow in no less than two weeks. The old cliché about the devil being in the details proved to be only too true: negotiations bogged down repeatedly, and the atmosphere soured. When a final deal was reached a month later, in the dying days of Parliament before the summer recess, it was without the support of the NDP, whose representatives angrily walked out, denouncing what they called a sellout by the Liberals and the Bloc Québécois. Spokespersons for the latter parties defended the deal, and the Speaker gave it his okay as conforming to his instructions. Yet obviously things had not gone as well as hoped.

What has happened? If we look at the final wording (which still bears the name but not the signature of NDP leader Jack Layton) we can see a number of potentially dangerous loopholes inserted at the insistence of the government.

It was always understood that the designated MPs would have to be security cleared in order to view unredacted documents. But the agreement states that this will only be to ‘Secret’. Given the sensitivity of the detainee issue and given the well-known propensity of governments to over classify, this should have been to ‘Top Secret’. It is likely, perhaps probable, that a great deal of crucial documentation will be classified at Top Secret level, and will thus be denied MPs as beyond their clearance level. If one were of suspicious mind, one might well imagine that even as these words are being written, a systematic upgrading of classification may be taking place.

There is another, even more serious, change in the terms, and this is one that led the NDP to walk out of the process. The original intention that MPs would see all documents unredacted (despite national security confidentiality) prior to submission to the Panel of Arbiters for advice on public release, has been turned on its head. Now two distinct cases of privileged information (cabinet confidences and solicitor-client privilege) will be specifically withheld from MPs, and any disputes over interpretation will be submitted to the Panel of Arbiters for final adjudication. In other words, the jurists will now be deciding what MPs may see, instead of merely what the public can see.

This is a huge difference. It calls into question the basic principle of parliamentary supremacy that the Speaker’s ruling upheld. The Liberals and the Bloc Québécois insist that this is not the case, as the jurors on the Panel of Arbiters will be named by the MPs and will not be serving in their capacity as members of the judicial branch of government. But the MPs will be confined in the first instance by their dependence upon the civil servants to put forward documents (the committee will have no dedicated research staff or legal counsel to search out documents to be requested). And when documents are withheld in whole or part, they will be dependent upon the Panel of Arbiters to advocate on their behalf with the government, or not as the case may be.

This leads to the question of the Panel of Arbiters itself. At the point of the final agreement there had been no names advanced by any party. We have no idea who these eminent jurors might be who will hold the whip hand over what the MPs can see. An earlier version of the agreement stipulated that the Panel would be made up of “three eminent jurists, who shall have experience related to national security, national defence and international relations”. This is very important, given the specialized nature of national security law and practice. There are eminent jurists with the knowledge and experience in this area to offer sound expert advice: the names of Federal Court justices Simon Noel and Richard Mosley come to mind, both of whom have handled questions of access to national security information skillfully and fairly. Yet the final text drops the qualifications and replaces them with the inane stipulation: “who shall have judicial expertise.” One assumes that “eminent jurists” have “judicial expertise”, but expertise in, say, contract law, hardly qualifies someone to handle the complexities of this case.

Finally there is the question of the new classes of privileged information now added to the mix. Cabinet confidences are a very touchy subject, and it was probably inevitable that the government would balk at the idea that cabinet discussions would be opened up to opposition MPs. Cabinet confidences are excluded from the Access to Information Act for twenty years, and decisions are not reviewable. The problem here is not the principle: cabinet government obviously requires confidentiality to work effectively, or at all. The problem lies in expansive interpretations governments may make of what constitute cabinet confidences. The best that can be said in this case is that there will be a review, by the Panel of Arbiters, which is better than no review in the case of Access requests.

Much the same can be said for the matter of solicitor-client privilege. Everyone agrees with this in principle: properly interpreted, it is a fundamental protection of the integrity of the legal process and a guarantee of the rights of individuals who find themselves before the courts. But it is also a potential blank cheque for a government seeking to protect itself from scrutiny. In the detainee question, one of the main issues is the potential legal liability of ministers, public servants, and armed forces personnel for violations of various international and national protocols and statutes. If relevant documentation has been reassembled for the purpose of offering legal advice from the Justice Dept. to diplomats and soldiers on their potential culpability, it might be declared ‘solicitor-client privilege’ and lost to outside scrutiny. Obviously, this privilege was never designed with the purpose in mind of blocking accountability of governments for their actions, but it can be misused in this way.

I have some personal experience in the potential misuse of solicitor-client privilege that is relevant. I chaired a panel of experts who were tasked by the Air India Commission with submitting a report on the aviation security aspects of the 1985 Air India bombing. To this end we had unrestricted access to documentation in government files. Our completed report was first submitted to the Justice Department for review for eventual public disclosure, which we understood was normal procedure. Then I discovered that the Justice Department lawyers proposed redacting sections of our report before it was submitted to Air India Commissioner John Major – on grounds of solicitor – client privilege.

The basis for this extraordinary claim was that some of the documentation we quoted or cited had been assembled in 1985-1986 by various government departments and submitted to Justice Department lawyers to determine the question of government liability for the bombing. Now thirty some years later, solicitor-client privilege was being advanced to block access to information about a disaster from a public inquiry investigating the disaster. This was patently absurd. In fairness, the Justice Department finally saw reason and dropped this claim. But I could not help but remember this incident when I saw how solicitor-client privilege was once more being raised in the Afghan detainee issue, and wonder about its potential misuse. Again, the MPs will be dependent upon the civil servants and the Panel of Arbiters to ensure that the claim is not abused. It would have been much better if the MPs themselves were the judges.

Given the shortcomings of this agreement, and given the evidence of bad faith on the part of the government negotiators, was the NDP justified in walking out? That is a political question, of course, as is the decision of the Liberals and Bloc Québécois to stay on. The latter have decided that this deal is better than nothing, which may be right. After all, it is up to the government alone to call a public inquiry, which is still the preferred route, but they have been, and remain, adamant that this will not happen, and continue to do everything in their power to undermine the Military Police Complaints Commission.

Parliamentary inquiries have their limitations under the best of conditions, and these are probably the worst of conditions. But even a highly imperfect parliamentary inquiry has some merit. And at the end of the day, there has been an important principle established about parliamentary supremacy in the once sanctified executive area of national security. The NDP has pointed out the extent of the problems, but it might reconsider and resume participation in the committee, even as it reiterates its unheeded calls for a full public inquiry. Even a quarter of a loaf may be better than no loaf at all.

Reg Whitaker is Distinguished Research Professor Emeritus at York University, and Adjunct Professor of Political Science at the University of Victoria. He has published extensively about Canadian politics; security, intelligence, and politics of information issues.