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If precedent is any indicator on parliamentary privilege, the Cons will lose in court.

… if it even gets that far (more below):

Some good investigation work by the CBC here on similar cases to the one we now potentially face, with the government refusing to hand over the Afghan documents to the Parliamentary Committee on Afghanistan as ordered in a vote by the will of Parliament and Parliamentary supremacy. If these cases serve as precedent, then the Conservative government may have a losing case on its hands:

Canada’s top court has looked at the question of parliamentary privilege in two recent-ish cases. The first is from the early 1990s and it involves the CBC. In this case, the Nova Scotia legislature refused to allow video cameras inside the Assembly. No CPAC coming out of Halifax. At least that was the goal. The CBC and a truckload of others took the Speaker of the Assembly to court over this. They had a reasonably sound case. This was about freedom of expression. The Charter guarantees freedom of expression. This was clearly a violation of that guarantee. But the CBC lost its case. The Supreme Court said that parliamentary privilege is part of the Constitution, which means the Charter does not apply.

Interesting bit of trivia #1: The judge who wrote the decision for the majority on this case is now the Chief Justice, Beverley McLachlin. Interesting bit of trivia #2: The lawyer for the Senate of Canada — and so arguing in favour of parliamentary privilege — on this case was the current Supreme Court justice, Ian Binnie.

The CBC then points out the problem the Conservative Government will have here:

The Conservative government says it can’t comply with Parliament’s demands for documents because Section 38 of the Canada Evidence Act is tying their hands. But the Canada Evidence Act is just a law. Compared to the Charter, it’s chump change. So here’s your chance to help out the good lawyers at the department of justice. If the Charter does not constrain parliamentary privilege, how is it possible for a mere statute to do so?

A good question. The answer will probably be it does not. Of course, there is also the other scenario: it has been written that in accordance to the makeup of our Westminster parliamentary system, the courts have no jurisdiction to rule on Parliamentary supremacy, so they cannot rule on whether the Parliamentary supremacy motion is overridden by the Canada Evidence Act. That type of decision would throw it back at the Conservative government, and in the hands of Parliament, at which point if the Speaker issued a Speaker’s Warrant ordering the documents to be turned over to Parliament, the Conservatives would risk being found in contempt of Parliament if they refused, (with various punishments at the discretion of the Speaker being issued) and more importantly, the Speaker could theoretically call upon federal authorities to enforce the Warrant. Technically, that means the Sergeant-At-Arms, but it also could mean the federal RCMP could be sent in to serve the Warrant on the Dept of National Defence and DFAIT and confiscate the documents from those departments.

Either way, it appears the Conservatives face a difficult time preventing Parliament from getting those Afghan detainee documents they are so adamantly refusing to give up, with many media and polling of the public showing most believe it has nothing to do with national security and more to do with covering up some negligence or worse on their part where it comes to their handling of the Afghan detainee transfer issue as it relates to torture.

8 comments to If precedent is any indicator on parliamentary privilege, the Cons will lose in court.

  • foottothefire

    On the precedence thingy, Here’s hoping Harper pushes it to the max; shot by a self-inflicted barrel of his own shit.

  • Roll Tide

    I hope the Conservatives win in court. MP’s like Pro Hezbollah Borys Wrzesnewskyj, cannot be trusted with classified documents.

    Scott, did you see the assasination cartoon on yesterdays Liberal website as a “American-Republican-Karl Rove-gutter style politics move” as you saw the “Puffin-gate”? or do you feel it was far too tame for that…..just wondering.

    http://scottdiatribe.canflag.com/2008/09/09/blame-the-staffer-redux-in-puffin-gate/

    • @Roll Tide, What a disgusting statement – you’re essentially accusing an MP of being a potential traitor to Canada. Are you sure that you want to claim that? Because I’m sure that could be construed as libel or slander.

      More to the point, If the Conservatives are so worried about MP’s being security threats (which is shameful in itself), all they need to do is initiate a judicial independent public inquiry, and let the judge or judges look at supposed “intelligence material” and redact it if it’s deemed a threat to national security.

      But that’s not what’s going on here, as you well know Roll Tide, and other Conservative parrots like you. This is likely a cover-up of documents to show that the Conservatives knew what was going on over in Afghanistan but turned a blind eye to it. They have no intention of releasing documents that show them to be in violation of the Geneva Conventions.

      As for the website shot, that was stupid and dealt with and apologized for.. and discipline meted out to the staffer who let it on (quite different from the CPC, who still has a picture of Stephane Dion surrounded by bullet holes up at their site, which they’ve never apologized for). That is a story that Conservatives are desperately trying to turn into a distraction from the detainees file, as well as their shameful environmental record.

      It’s been dealt with, and now we can get back to more important issues, like the fact the Conservatives have been dealing in a massive coverup and stonewalling of the Afghanistan detainees file, as well as the fact they’re going to try and weaken their own environmental plan to appease the oil-barons on the Alberta tar-sands.

      • Roll Tide

        @Scott Tribe,

        “quite different from the CPC, who still has a picture of Stephane Dion surrounded by bullet holes up at their site, which they’ve never apologized for”

        They were paper holes taken from and described in istockphoto.

        http://www.istockphoto.com/stock-illustration-5227378-paper-holes.php

        Harper apologized for the tasteless puffin poop cartoon.

        Ignatieff is silent on a cartoon that promotes assassination.
        I hope he apologizes. I am sue he will.

        “weaken their own environmental plan to appease the oil-barons on the Alberta tar-sands”

        Not sure where you are going with that, Ignatieff himself has expressed support for the oil sands. I drive a Honda accord, and would rather get my oil from Alberta then Chavez or the Middle East.
        It accounts for 5% of our emissions, autos are 80%.

    • @Roll Tide, More like the Con’s can’t be trusted with the documents. First, they let a retired general see the unredacted versions. Then, they leaked selected doc’s to selected press lackeys. Now, we find out that the redactions had more to do with ass-covering than with troop security. Con’s are hiding behind national security and support-the-troops while they engage in the most reprehensible cover-up in Canadian history.

      Oh look! An offensive photoshop image. Pay no attention to war crimes, there’s mud to sling.

  • Well, Scotty, the Con’s contempt ain’t limited to Parliament. They got no respect for the courts, neither. Case in point: Omar Khadr. The courts made a decision the Con’s didn’t like so they simply ignored it. Same way they ignored Parliament on the Kyoto implementation bill, Kelowna bill, US war resisters motion and others.

    They don’t give a rat’s ass if the court agrees with ’em or not. They’re gonna continue to withhold vital evidence that damns them. Shufflin’ it back an’ forth between the HoC and the courts is just stall tactic. They’re bankin’ on the issue runnin’ outta steam with the oppo and genpop. Won’t happen.

    Canadians will ultimately speak in great numbers: “We do not condone torture. We do not condone lying government ministers. We do not condone cover-ups of war crimes. We are ashamed of our so-called leaders.”

    Colvin’s 16 page letter is a dang masterpiece.

    Richard Colvin for Prime Minister!

    JB

    • @JimBobby, Technically that’s not correct on Khadr. They had the right of appeal all the way to the Canadian Supreme Court, and I predict quite confidently that if the Supreme Court orders the Canadian government to request Khadr’s repatriation, even they will not defy the Supreme Court. Their only alternative is to try and use the notwithstanding clause to override the Supreme Court decision, and as they need the Parliament to agree to that, they don’t have the votes.

  • MoS

    There appears to be a smoking gun in the Toronto Star’s report today on Colvin’s rebuttal letter. Reference is made to Canadian Press being allowed to read a clear copy of a key memo the Tories released heavily redacted. What had been expunged from the public record was information of what the Tories knew and when. It had nothing to do with security and everything to do with using censorship for rank, political cover. The bastards are using the big black magic marker to bury their own dirt. No wonder they’re out to derail the Afghan torture hearings.

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