Inside Politics

PrivilegeWatch: Over to you, former supreme court justice Frank Iacobucci

by Kady O'Malley Posted: March 5, 2010 9:42 AM Last Updated: April 21, 2010 9:51 AM
That's what government sources are apparently telling some of my CBC colleagues: Keep an eye on the House when it reassembles this morning at 10am. News, it seems, may be in the offing. 

 What kind of news, exactly? That, alas, we don't know -- although the rumour is that Justice Minister Rob Nicholson will be delivering it, which raises all sorts of interesting possibilities. Could be a public inquiry into Afghan detainees? A reference to the Supreme Court of Canada on parliamentary privilege? The comparatively anticlimactic introduction of a crime-tackling bill of some kind? We'll keep you posted!

UPDATE: He's up -- the minister, that is -- and it's definitely something to do with those documents, and specifically, the House Order to Produce. As such, the government has engaged "an eminent jurist and legal analyst" to review the documents at issue, including the information proposed to be withheld. And it's -- former Supreme Court Justice Frank Iacobucci, who, as the minister points out, "needs no introduction." He'll be reporting back to the minister on whether the possibly "injurious information" can be disclosed, and his findings will be tabled in the House, including a description of his methodology and general findings. He's sure that all members of the House will welcome this news. Well, there's clapping, but I can't tell whether it's coming from both sides. 

Now up: Ralph Goodale, who looks a little surprised; he points out the opposition may want to take a little bit of time to review the statement. He'd also like a copy of the terms of reference, and any correspondence between the minister and the honourable jurist, as well as some idea of the timeline. Nicholson admits that he doesn't have all the documents on hand at the moment, this apparently came together "quickly," but he welcomes Goodale's comments, and he'll get back to him. 

Oh, here's Derek Lee now, who notes that there are "two or three things missing here" -- at no point has the government acknowledged the power of the House to subpoena documents, and send for persons, papers and records. In asking a third party to do the government's work -- and no one, he says, could take objection to that -- he would have assumed that the government already has people looking at the issue. 

Yes, Derek Lee does not seem to be mollified in the least; he wants the minister to stand up and acknowledge the full, unabridged power of the House now -- the way it has always been, for over three hundred years. More applause for Lee -- that, I'm betting, is not coming from both sides of the House. The minister replies, but does not seem to be keen on the whole acknowledgement thing; he does note that he has a "clear understanding" of the power of parliament, but he wants Lee and others to "have a look at what we're trying to do" by making information available, but protecting those who serve in Afghanistan, and elsewhere. 

That's it for the moment, it seems -- at least on this issue. The Speaker hands the floor over to Michael Ignatieff -- who, by a serendipitous twist, was already in the House to deliver his reply to the budget. He notes that the details still appear to be being worked out, as far as the process of the review itself, but he seems cautiously optimistic about the selection of Iacobucci, at least. 

INSTANT ANALYSIS UPDATE: Well, it's not quite a reference to the Supreme Court  -- although it does involve a former supreme -- and it's hard to know whether this is a genuine effort by the minister to wriggle out of that increasingly uncomfy in which he had found himself, as far as the legitimacy of that House Order. It is also not, contrary to what Ignatieff seemed to be suggesting in his opening remarks on the budget, an independent inquiry into the Afghan detainee controversy itself. What it is -- or, at least, appears to be -- is an attempt to make Iacobucci a parliamentary special master of sorts; it does not, however, address the more general -- and, in my opinion, at least, far more important -- question of whether the House does, indeed, have the power to compel production of persons, papers and records. 

 
THE OFFICE OF DEREK LEE RESPONDS: They're holding off on the motion for the moment, pending the release of the terms of reference. 

MORE REACTION: Courtesy of another corner of cbc.ca, here's what the NDP's Paul Dewar and others had to say:

Opposition leader Michael Ignatieff said he approved of the appointment of Iacobucci, and said he hoped the respected former jurist would "be given the terms of reference necessary to do the job."

NDP MP Paul Dewar said on the surface the move appears to be a "stalling tactic" and he expressed disappointment that the government would not choose to work with other parliamentarians to determine what was and wasn't an issue of national security.

Liberal MP Derek Lee, who had been preparing a motion alleging the government has breached the privilege of Parliament by its refusal to comply to the request for the complete documents, said he didn't understand the need for an outside assessment.

"I would have thought that the government would already have people capable of determining what documents needed protection," he said.

After catching a bit of Dewar's post-ministerial-statement scrum, I can add to that the distinct impression with which it left me that the NDP is, indeed, a wee bit sceptical; as he pointed out, the order was to produce the documents to parliamentarians, not to a third party, as esteemed and respected as that third party may be -- and if the government truly wanted to work with parliament, they could have consulted with the opposition parties before announcing this as a fait accompli.

Also, I can't help but note the continuing absence of any sort of press release, or statement, or, indeed, any reference to the minister's announcement at all on the Justice website. I've also seen nothing from Nicholson's office on the gallery listserv. 

WHEN IT COMES TO JUDICIAL REVIEW IT REALLY IS A SMALL WORLD, MIND YOU, UPDATE:  Colleague Morrison points out that Iacobucci is no stranger to the question of parliamentary privilege -- and his judicial opinion on the issue would appear to be closer to that of Derek Lee than the government. 

AND AS MUCH AS WE ALL LOVE IACOBUCCI ... 
UPDATE
UPDATE: According to the comments he mass-emailed to reporters a few minutes ago, Democracy Watch coordinator Duff Conacher still wants to see that Supreme Court reference -- and if the government won't do it, he thinks the opposition parties should do so: 
 
While it is very likely that MPs and parliamentary committees have a
clear, legal right to full disclosure of the documents about Afghan
detainees (and essentially any other government document), the House of
Commons lawyer and the government's lawyers disagree about whether
Parliament has this right.

While he is a respected former Supreme Court of Canada (SCC) justice,
Frank Iacobucci can't issue a ruling that requires the government to
disclose the full (or less-censored) documents, nor can he issue a binding
ruling that resolves the issue of Parliament's and parliamentarians'
rights and privileges for future similar situations.

So instead, the government should have referred the issue to the SCC for a
binding ruling, and the opposition parties can still do this -- see
details in Democracy Watch's news release.

Regular readers will recall that he made his case for a Supreme Court reference during a meeting of the all-but-one-party committee on Afghanistan last month, the liveblog of which can be found here. 

SO YEAH, ABOUT THOSE TERMS OF REFERENCE UPDATE: Apparently, Nicholson's office will be putting out a press release on the Iacobucci review just as soon as they've managed to nail down the details, although when that will happen -- or, for that matter, what that down-nailing entails -- is not entirely clear. 

Tags: ad hoc house of commons liveblogging, blackberry jungle, frank iacobucci, privilegewatch