The Stakes of Milliken's Ruling

The Speaker's decision about the Afghan detainees documents will determine whether the Harper government is accountable only to itself.

House of Commons Speaker Peter Milliken is about to hand down a ruling that will have major ramifications not only for parliamentary democracy and responsible government in this country, but also potentially for similar governance systems around the world that were inherited from the British Parliament.

The ruling concerns whether the Harper government has breached a centuries-old legal and conventional parliamentary rule that the elected members of the House of Commons have foundational rights of parliamentary privilege to order papers, persons, and records from the executive branch of government and have such orders respected in order to hold the executive to account. Indeed, in a 1993 decision, the Supreme Court of Canada regarded the core parliamentary privileges relating to holding the executive to account as so critical to Canadian democracy that it ruled they were part of the Canadian Constitution on equal par with the Charter of Rights and Freedoms.

What has triggered the ruling by Speaker Milliken was the Harper government’s refusal to release uncensored documents to the parliamentary committee examining allegations that Canadian soldiers handed Afghan detainees over to potentially be tortured by the notorious National Directorate of Security (NDS). The Canadian policy seemed to prefer transferring detainees to the NDS, which the UN, other NATO allies, and major human rights groups have condemned for its frequent use of torture and which learned its investigation techniques from the Russian KGB.

The government claims that the parliamentary privilege asserted by the opposition to receive the uncensored documents does not extend to those covered by national security or to other vital Canadian interests covered by the Canada Evidence Act. The opposition parties vigorously contest this position, claiming there is nothing in law or even precedent that would support the government’s position.

Moreover, the opposition is willing to have all such sensitive documents examined in camera and committee members take oaths of secrecy. They also refute the argument that former justice Frank Iacobucci, who has been appointed by the Harper government to vet which documents are covered by national security interests, is any form of legitimate compromise, as his function is to advise the minister of justice only, and his advice may be subject to solicitor-client privilege and never see the light of day. The opposition claims that if the government really wanted to compromise, it would have appointed Iacobucci to conduct an independent judicial inquiry in the same fashion as the O’Connor inquiry into the Maher Arar affair.

The stakes are much higher than just the detainee issue. If the government is permitted to refuse to hand over the documents, then it’s questionable whether the executive is accountable only to itself, and not to the elected members of the House of Commons. Such a result would undermine the very notion of Canadian responsible government and potentially steer us towards a form of government with fewer checks and balances than even a presidential system of government as in the U.S.

Indeed, given the growing accretion of power of the PMO, Canada may well be heading towards a globally unique form of very undesirable governance: prime ministerial autocracy.