Afghan records denial is privilege breach: Speaker

The federal government's refusal to produce uncensored documents related to the treatment of Afghan detainees constitutes a breach of parliamentary privilege, Speaker Peter Milliken has ruled.

Milliken gives government 2 weeks to find compromise over document release

Speaker Peter Milliken delivers his ruling on Tuesday in the House of Commons on Parliament Hill in Ottawa. ((Adrian Wyld/Canadian Press))
The federal government breached parliamentary privilege with its refusal to produce uncensored documents related to the treatment of Afghan detainees and must provide the material to MPs within two weeks, Speaker Peter Milliken has ruled.

During his lengthy ruling Tuesday afternoon in the House, Milliken called on House leaders, ministers and MPs to find a "workable accommodation" to satisfy all parties "without compromising the security and confidentiality contained."

Milliken ruled Parliament had a right to order the government in December to produce uncensored documents to members of a special committee examining allegations that detainees transferred to Afghan custody were tortured.

He said the order was "clear" and procedurally acceptable but acknowledged it had no provision to protect sensitive information within the material.

"It is the view of the chair that accepting an unconditional authority of the executive to censor the information provided to Parliament would, in fact, jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts," Milliken told the House.

"Furthermore, it risks diminishing the inherent privileges of the House and its members, which have been earned and must be safeguarded."

On Dec. 10 of last year, the Commons passed an opposition motion ordering the government to produce unredacted documents pertaining to the Canadian transfer of detainees to Afghan custody. But Prime Minister Stephen Harper's Conservative government has refused to comply with that order, citing national security concerns.

In response, MPs from all three opposition parties submitted questions of privilege to Milliken last month that called for several government ministers to be held in contempt of Parliament, arguing that the House's "supreme" power over the prime minister is a basic tenet of democracy.

Tories welcome 'possibility' of compromise

In a brief statement to reporters shortly after Milliken's decision, Justice Minister Rob Nicholson said the government "welcomes the possibility of a compromise while respecting our legal obligations, acknowledged by the Speaker."

"The government will not knowingly break the laws that were written and passed by Parliament," Nicholson said. "Our government will not compromise Canada's national security, nor will it jeopardize the lives of our men and women in uniform."

The minister did not take any questions after the statement.

It is possible the Conservatives will view the ruling as an issue of non-confidence and call a vote in the House, which could trigger a snap election. The government could also ask the Supreme Court to hear the case.

Ruling 'a clear victory for Parliament': Ignatieff

Speaking after Milliken's ruling, Liberal Leader Michael Ignatieff called it "a clear victory for Parliament, for the people of Canada, for democracy and a clear defeat for the Conservative government."

He said he would instruct Liberal House leader Ralph Goodale to consult his Conservative counterpart and find a solution in the next two weeks "that vindicates the right of the Canadian people to have documents and also respects the considerations of national security."

"I'm absolutely convinced what the Speaker is saying to us is that you can trust an MP to respect the national security of our country," Ignatieff said. "What's changed is the Speaker, the highest authority in our Parliament, has said, 'Sort it out'."

NDP Leader Jack Layton also hailed Milliken's decision as a "very strong and important ruling."

"The Speaker stood up for members of Parliament and for the people elected by the people of Canada against a Harper government that simply wanted to act in a contemptuous way towards Parliament," Layton told reporters.

Ruling: Iacobucci's 'client' is government

A special parliamentary committee on the Afghanistan mission and a civilian-run military watchdog have been investigating allegations that Canadian officials handed over prisoners to Afghan custody with the knowledge they would be tortured.

Government and military officials, past and present, have vehemently denied the allegations and insist Canada's troops have always respected international law.

The government recently appointed retired Supreme Court justice Frank Iacobucci to review the material to determine what can be released.

But opposition parties have decried his appointment as a delay tactic to avoid potentially embarrassing revelations about what the Conservatives knew about torture allegations — and when they first learned of them.

The MPs have argued that Iacobucci's review will likely take months and that the government is under no obligation to make his findings public.

In his ruling, Milliken said that in his view, since Iacobucci reports to the justice minister, "his client is the government."

MacKay not in contempt

Milliken also ruled that Defence Minister Peter MacKay did not intimidate government witnesses slated to appear before the parliamentary committee on the Afghan mission when he pointed out that any information they provided to the committee must comply with the Canada Evidence Act.

The opposition had accused MacKay of trying to scare witnesses into withholding information out of fear that they might violate the Act.

Milliken said he agreed with the government's position that MacKay's statements, made in the House of Commons in December 2009, constituted debate since they occurred during question period.

The Speaker expressed "concern" over a letter sent by assistant deputy minister of justice Carolyn Kobernick on Dec. 9, 2009, to House law clerk Rob Walsh. In it, Kobernick said there may be "instances where an act of Parliament will not be interpreted to apply" to the Houses of Parliament or their committees.

In that case, the opposition had argued the effect was also to dissuade government bureaucrats from providing information to the committee — this time out of fear that some of the usual protections might not apply to their testimony and that what they say could end up damaging them.

Milliken said the letter could be interpreted as having a "chilling effect" on public servants who are called to appear before parliamentary committees. But he said there does not appear to be sufficient evidence to conclude that Kobernick's letter constitutes a direct attempt to prevent or influence the testimony of any witness before a committee.