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Detainee abuse will come back to bite Harperites

Minority parties could work together to hold MacKay and Cannon in contempt.

Dateline: Monday, March 01, 2010

by Stuart Thomson

OTTAWA, March 3, 2010 — Parliament is likely to pick up right where it left off, by demanding to know more about the role of senior ministers in the Afghan detainee scandal.

The House of Commons request for government memos regarding the transfer of Afghan detainees was temporarily stymied by prorogation. Now the issue will be at the forefront when the House reconvenes.

The Special Committee on the Canadian Mission in Afghanistan sees the documents as essential in establishing a timeline of who knew what, and when they knew it. If the Committee finds strong evidence that members of cabinet were aware that Canadian soldiers handed over prisoners to Afghan forces — knowing they would be tortured — it would have serious repercussions, possibly even a referral to the international war crimes tribunal.

There are essentially two options for action. In both, opposition MPs have one overarching tenet of parliamentary democracy on their side: the supremacy of Parliament.

Duff Conacher (left) and John Chenier discuss the detainee abuse affair with Stuart Thomson of Straight Goods News in Ottawa, February 24, 2010.

"You can go the route of finding the cabinet minister[s] involved in refusing to disclose the documents in contempt of Parliament, which in a minority parliament the opposition parties could easily do because they're a majority," says Duff Conacher, the Director of Democracy Watch, a watchdog group advocating for democratic reform and accountability.

The cabinet ministers in question would be Peter MacKay, Minister of Defence, and Lawrence Cannon, Minister of Foreign Affairs and International Trade.

The consequences could be extreme as expelling a minister or asking the speaker to censure him, and would take a simple majority vote to pass.

"If the minister doesn't [disclose the documents] expel the minister. If another minister doesn't, you can expel him too," says John Chenier, director of The Lobby Monitor, an Ottawa publication on lobbying and public policy.

Although expelling a minister is technically possible, Conacher doesn't think it will accomplish anything except maybe to annoy the Canadian public.

"It's a kangaroo court. It doesn't resolve anything. And you're not going to get the documents either," he says.

Conacher says that the only real solution to the problem is to refer the issue to the Supreme Court of Canada. This would provide clarification on which documents, and how much of those documents, House committees can demand to see.

A Court decision would also solve the ongoing conflict between the parliamentary counsel, who advises that committee members should be allowed to see the memos but with greater precautions than normal, and the government's lawyers, who say that the request can be denied on national security grounds.

The process of referring the issue to the Supreme Court could be expedited, because the arguments on both sides have already been written, and the Court is likely to recognize the urgency of the matter.

The case could reach the court in a matter of months, rather than years, and could be initiated by the government or, in a less direct way, by the opposition parties.

Paul Dewar, NDP Foreign Affairs critic and a member of the special committee, was averse to taking the issue to the courts.

"We shouldn't have to [go to the courts]. We've seen this government use the courts to delay. We can't delay on this question.," he said at a press conference on Feb. 3.

Dewar was speaking to reporters after announcing that he had sent a letter to Attorney General and Justice Minister Rob Nicholson demanding that the committee be allowed access to the documents. Dewar believes that Nicholson, in his capacity as Attorney General, has a responsibility to Parliament that goes over and above his responsibility to Cabinet.

If Nicholson denies the request, Dewar says that the opposition parties will move to hold the government in contempt and censure the ministers responsible for withholding the documents.

"We need to hold the government to account and if they are not going to provide access to these documents, hold them in contempt because they clearly would be," he said.


  • May 2005: Canada begins negotiations of a detainee transfer deal with Afghanistan. Up to this point, detainees were passed on to American troops who then shipped them to Guantanamo Bay.

  • December 2005: A transfer deal is signed by Rick Hillier while the federal government is embroiled in a federal election. Stephen Harper's Conservatives would defeat Paul Martin's Liberals and go on to form a minority government.

  • May 2007: The government signs a new detainee transfer deal, admitting that the old one was inadequate. The move comes in response to a growing scandal regarding Afghani detainees who claim they were tortured after being transferred by Canadian troops. The new agreement includes provisions such as follow-up visits to Afghani jails and better protections for detainees.

  • November 2009: Richard Colvin, a former diplomat in Afghanistan testifies to the Military Police Complaints Commission with further allegations of torture by Afghani interrogators.

  • February 3, 2010: Paul Dewar, MP-NDP, requests an unredacted copy of memos regarding treatment of detainees from Justice Minister and Attorney General Rob Nicholson. Dewar says that if Nicholson, as Attorney General, says no to the request then the government would indisputably be in contempt of parliament.

  • March 3, 2010: Parliament to resume after a six week prorogation. Document requests, like Private Members' Bills, survive prorogation and remain when parliament resumes.

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