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News Release

Democracy Watch Calls on Federal Conservatives and Opposition MPs to Refer Afghan Detainee Document and Committee Testimony Disclosure Issues to Supreme Court of Canada for Ruling

Wednesday, February 10, 2010

OTTAWA - Today, before the ad hoc committee hearings federal opposition parties are holding examining the Afghan detainee document and testimony disclosure situation during the prorogation of Parliament, Democracy Watch called on the federal Conservative Cabinet to refer the issues to the Supreme Court of Canada for a ruling, and for opposition party MPs to make the referral and hold Cabinet ministers accountable if they refuse to do the referral.

"MPs and the government and their lawyers have different opinions about the legality of disclosure of documents and testimony to MPs and the public, and a Supreme Court of Canada ruling could resolve the dispute relatively quickly and constructively, and also establish clear rules for dealing with similar situations in the future," said Duff Conacher, Coordinator of Democracy Watch.

Under subsection 53(1) of the Supreme Court of Canada Act, the Cabinet can refer questions about the interpretation of the Constitution of Canada or any other law, and the powers of Parliament, to the Court for a ruling.

The constitutional and constitutional convention powers of Parliament and its powers defined under the Parliament of Canada Act, as well as the interpretation and application of the federal Access to Information Act, Canada Evidence Act, National Defence Act and the Security of Information Act, are all in dispute in the document and testimony disclosure situation.

While the Supreme Court of Canada has made it clear in past rulings that Parliament (through votes and agreements supported by a majority of MPs) not the courts determines the exercise of its own powers as part of the parliamentary privilege constitutional convention, it is not completely clear whether the privilege powers include the right to disclosure of these types of documents and testimony before parliamentary committees, let alone to the public.

If the Conservative Cabinet refuses to be reasonable and refer the issues to the Supreme Court for a quick ruling that would clear up the situation, Democracy Watch's position is that the opposition parties should:

  • introduce a private member bill that changes the Parliament of Canada Act and the other laws listed above to give Parliament and the public clear rights to disclosure of such documents and testimony, and then refer the bill to the Supreme Court of Canada as is allowed under s. 54 of the Supreme Court of Canada Act for a ruling on its constitutionality and legality, and;
  • if the Supreme Court of Canada rules that the documents and testimony are required to be disclosed, move to find the Cabinet ministers involved in withholding documents and suppressing testimony in contempt of Parliament.
As well, Democracy Watch called on all federal parties to pass a bill changing the federal Access to Information Act in the ways the Conservatives promised during the 2006 federal election campaign -- to extend coverage of the Act to all government or government-funded institutions in a way that overrides every secrecy requirement except national security and privacy protection; to require everyone in government to create a record of all of their decisions and actions, and; to give the federal Information Commissioner the power to order the release of any record if it is in the public interest and would not result in harm to the health or safety of anyone.

Finally, Democracy Watch also called on federal political parties to change the federal Inquiries Act to allow a majority of political party leaders to initiate an inquiry (currently, only the federal Cabinet can initiate an inquiry -- To see op-ed on this issue, click here).

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Duff Conacher, Coordinator of Democracy Watch
Tel: (613) 241-5179

To see Democracy Watch's list of the loopholes in the federal government's accountability system, click here

Democracy Watch's Open Government Campaign