The Conservative government has violated the Constitution and will be in contempt of Parliament if it continues to refuse to release uncensored documents regarding the Afghan detainee issue, a constitutional law professor says.
"The executive is really placing itself above Parliament. For the first time that I know in Canadian history, the executive is saying we are superior to Parliament," said Errol Mendes, a University of Ottawa professor who was speaking at an informal hearing of the parliamentary committee looking into the Afghanistan detainee issue.
Mendes was referring to the Harper government's refusal to hand over uncensored documents, despite a motion passed in the House of Commons to do so.
"This is nothing more than an open defiance of Parliament. Nothing more, nothing less," he said.
The hearing, considered informal because Prime Minister Stephen Harper prorogued Parliament, was attended by opposition members but no Conservative MPs.
"The refusal to release the uncensored documents is a violation of the Canadian Constitution. This is the equivalent to a defiance of a judicial subpoena," Mendes said.
"The Harper government, if it does not respect its constitutional obligations, will be in contempt of Parliament."
Opposition MPs have demanded access to all government documents relevant to allegations made by Richard Colvin, a former senior diplomat with Canada's mission in Afghanistan. Colvin alleged that prisoners were turned over to Afghanistan prison officials by the Canadian military in 2006-07 despite his warnings to Canadian officials that they would be tortured.
Go to courts
The government has released documents but many of them with large portions blacked out, citing security concerns. As international trade minister, Stockwell Day said if opposition members want uncensored documents, they can pursue the matter through the court system.
Mendes said the Supreme Court of Canada has already ruled that parliamentary privilege grants the MPs the right to the documents.
He also said that concerns over the release of information that could threaten national security can be taken into account.
Mendes said the House of Commons could pass a motion declaring specific individuals in contempt of Parliament and issue disciplinary measures. As well, they could summon individuals to the bar of the House.
"It is a very very serious serious indictment to bring someone to the bar of the House. Essentially, it is the equivalent of the high court of the land basically saying you're guilty of contempt of the highest democratic body in the country."
He said it is up to the House to decide what individuals should be singled out, but that it could include the prime minister.