PrivilegeWatch: Let the rebuttals begin!

3:25 PM 

Lee notes that there are many laws and statutes that could potentially impinge on PPR -- and lists just ten, from privacy concerns to crown privilege -- and if any did, then all would - and the Grand Inquest of the Nation would soon be out of business. 

He also notes that, during his appearance before the Afghanistan committee last month, former Kandahar PRT director Cory Anderson confirmed that he was told his responsibilities as a public servant are "not to be admonished" -- which Lee thinks might be a mistranscription of "diminished." Asked whether there were "specific things" that he couldn't tell the committee, he noted that he wasn't told specifically not to answer questions, but that he was under the same obligations as any public servant, which, as per the Justice department, has been defined "quite rigidly." This, Lee says, is proof that the instructions emanating from the department -- and under the aegis of the justice minister -- are, indeed, having a chilling effect on witnesses. 

"I'm being kind," Lee observes,"When I say that this remark" -- Nicholson's assertion that the Privacy Act includes exemptions for parliament -- "could mislead the House." Oooh, by parliamentary standards, that's incendiary, as is the phrase "patently untrue," which is how Lee characterizes Nicholson's description of that letter from his assistant deputy minister. 

3:34 PM 

"The proceedings in Jamaica," Lee tells the Speaker -- "are very instructive" to this situation, despite having taken place nearly two centuries ago. You can read Lee's summary of the case here. It's a corker of a story, with various unlucky personages winding up in the custody of the House, and the "King's forces" being ordered to come before the Bar. 

Eventually, Lee tells the Speaker, the House rejected any authority by the King to constrain witnesses before the House. The King! That's -- the Crown. 

Never has this power of the House been set aside, Lee claims -- never in the history of this House, not in the parliament created by our ancestors. The minister opens the door to a silent, secretive power that could be misused by those with seditious, self-interested purposes. The constitution provides some protection, he acknowledges -- but it's up to the House to protect its power as well. "We have the constitution to do the job here," he says -- and they will. The meaning and reach of the power to compel production of records has not been diminished in three centuries, and the minister was unable to show how it has changed, or even if it had. "No House, and no court, has found to the contrary," and the Attorney General has not found any law that explicitly changes that power.

There was an instance in 2002, he notes, but the minister's claim that it was changed to strengthen the law, thus "slandering" the House. "These remarks demand retraction or clarification," Lee says -- to protect the dignity of the House, and its function as Grand Inquest. 

Lee closes by offering, once again, to move the necessary motion should the Speaker find a prima facie breach of privilege, and then hands the floor over to Jack Harris, who begins by noting that he once made the mistake in court of calling the presiding judge "Mr. Speaker"; he hopes he doesn't do the reverse today. His response, by the way, will be succinct, but not particularly brief, since - well, it's a big issue.

Much of what the government -- in the form of the parliamentary secretary to the house leader, and the minister -- could be considered points of debate over the main issue, he suggests; he'll say this about Lee's motion, however, and on whether witnesses may be intimidated, and whether that constitutes a breach of the House: He would refer the Speaker to O'Brien and Bosc, which states that intimidation of a committee witness is, indeed, a prima facie case of privilege. 

To suggest that there was no consideration of security -- as both Lukiwski and Nicholson did in their respective attempts to argue against the legitimacy of the House Order, as per Harris -- is just plain false; as for the precedent involving the request to table a document from which a minister -- actually, in this case, the prime minister -- appeared to be reading from in the House, well, that isn't the same at all, according to Harris. "These precedents .. are not applicable." He -- Lukiwksi -- also claimed that the House "has always accepted national security" as a reason not to seek information, which Harris also disputes, noting that both the House and committees have, on occasion, received briefings involving confidential information. 

As for whether the Order was a "humble address to the Governor General", that reference, which falls under notice of requests, is one that Members can choose to avail themselves of, but if there are objections, it can be set aside for debate. "In my view, he's totally confusing form and substance, and in the case of this objection, grasping at straws." 

Harris notes that the Speaker had already determined that the Order in order, and that his decision, as all such decisions, cannot be debated or overruled by the House, yet the government appeared to be attempting to re-argue a point of order that was lost before the motion was passed. Now, those arguments may be relevant to a future motion, should a prima facie breach be found, but not until then, as far as he can tell. 

"Restraint is in order," Harris agrees -- there's no question on that, and the House has shown just that sort of restraint: it's been more than a hundred days since the order was passed, and by this point, members are getting hammered by the press, who want to know just how long they're prepared to wait before taking the next step. 

Harris notes that, as difficult as it may seem, the Speaker does have to go back to the original question to determine if it is, indeed, one of privilege; the answer seems obvious to him, and if Milliken agrees, it will be up to the House to decide how to proceed. 

With that, Harris finishes his appeal to the speaker, and the floor is turned over to ... Ken Boshkoff? Huh. I wasn't expecting that, but apparently, he's here to give the technical details on the supremacy of parliament as applied to the Privacy Act, as referenced by Lee earlier this afternoon. He notes that the Privacy Act does, indeed, not apply if the records are requested by a body with the power to compel information, which would include Parliament - a principle that was established in 1867, and reaffirmed in the Constitution. He also has a whole bunch of citations, and sneaks in a shout out to the Grand Inquest of the Nation. 

And here's Tom Lukiwski, who also promises to be brief; there are just a few wee matters he wants to address, starting with -- oh, his complaint about the committee not having any mechanisms currently in place to deal with national security considerations, and for heaven's sakes, it's called going in camera, and it's hardly unprecendented; you are not being asked to "hand over on a wish and a prayer" confidential documents to a bunch of parliamentary neophytes who have no concept of how to handle sensitive material. Anyway, he agrees that all submissions made by all honourable members should be taken carefully, including those made by Lee in 2005, which were "just recently brought to his attention," and are "as relevant today as they were in 2005," during which time he was a member of the Access to Information, Privacy and Ethics committee, and said that foreign governments would be absolutely loathe to share information with Canada "if it would wind up in the hands of an Access Commissioner." Well, lucky thing that's not remotely what is being proposed, isn't it? 

Oh, apparently, it would be "the tweeting of in camera information" by committee members that would throw our allies into a state of hysteria, which is why the government simply has no proof that any confidential information would be treated properly. Which he seems to suggest is pretty much what Lee was saying. Somehow, I suspect Lee may have a very different admission, what with the Access Commissioner not actually being a Member of Parliament, and as such, not empowered with parliamentary power. 

Oh, and here's Jim Abbott, who also promises to be brief, and who professes himself to be utterly stumped by how information could be kept confidential from his colleagues on the Afghanistan committee even if the members were able to get hold of it. How would they be able to use it, even if they could get it? Information being shielded "because of our concern for our armed forces," since the people of Canada would want to know on what basis the committee came to any such conclusion. Thus, the fallacy, which is evident "in and of itself." He also takes exception to Harris' suggestion that these blank pages "just happened on a whim," since these are "very common under legal proceedings" -- they are not "whimsical" but done by people "completely outside of the partisan political process," who are looking out for the best interests of those who have gone to Afghanistan. "Notwithstanding what the Charter may say," he says -- or the Constitution -- it would not be in the best interest of the nation to go in that direction. Oh, well, in that case ... Wait. What? 

4:44 PM
Gosh, Jim Abbott sure is using the word "notwithstanding" an awful lot. It's almost like he's suggesting that the speaker should evoke some sort of clause in order to get around the undeniable unconstitutionality of his plea that the question fail, regardless of what the law may state. 

And -- oh, apparently, that's it for this round of PrivilegeWatch, and it's back to Orders of the Day. I -- don't know quite what to make of that final pitch from Abbott, honestly. It sounds as though he was laying the groundwork for an eventual refusal to comply with a further Order of the House, even if the Speaker were to find a prima facie Question of Privilege, but I'm sure that can't be the case. 

Over to you, commenters. Your thoughts?