Historic Ruling Forces Government and Opposition to Make Deal on Afghan Documents

Government ministers could face confinement if the government and opposition parties fail to find a compromise.
Historic Ruling Forces Government and Opposition to Make Deal on Afghan Documents
Matthew Little
4/28/2010
Updated:
9/29/2015

PARLIAMENT HILL, Ottawa—Government ministers could face forceful confinement if the government and opposition parties fail to find a compromise over documents in the Afghan detainees scandal, says a noted political scientist and expert on Parliamentary procedure.

Opposition parties scored a major victory in the battle over information regarding the transfer of Afghan detainees by Canadian forces on Tuesday when House Speaker Peter Milliken ruled opposition MPs have an absolute right to order the production of documents surrounding the issue.

While one scholar suggests the ruling could trigger an election, another believes that’s unlikely although other dramatic outcomes could see Prime Minister Stephen Harper take the matter to the Supreme Court.

The bitter dispute over whether Canadian forces knowingly transferred Afghan detainees to likely torture from Afghan forces erupted last November. That was when Richard Colvin, Canada’s number 2 diplomat in Afghanistan, told a parliamentary committee that Afghan detainees transferred from Canadian forces to Afghan authorities were routinely tortured.

Opposition parties called for documents detailing the matter as well as a public inquiry but were routinely denied by the government citing national security issues. But with Milliken’s ruling, the government has two weeks to reach an agreement with the opposition parties over the documents or face an opposition motion that could find the minority government—or more specifically, ministers of the government—in contempt of Parliament.

At that point, depending on the exact wording of the motion, government ministers could be placed under confinement by Parliament’s Sergeant at Arms. In that event, the minister in question would likely be confined in a hotel since Parliament “doesn’t have a jail,” said Ned Franks, professor emeritus in the department of political studies at Queen’s University and a respected expert on Parliamentary procedure.

Another option, said Franks, is that Harper could challenge the motion at the Supreme Court.

While Patrick Monahan, legal scholar and provost of York University told the Globe and Mail such a motion would certainly force an election, Franks says that’s unlikely given that it would be a hard issue to fight an election over, and both Liberal Leader Michael Ignatieff and the Prime Minister have expressed a wish to find a compromise over the issue.

“It seems to me that cooler heads will ultimately prevail,” he said.

Harper also dismissed suggestions during question period that he would force an election over the issue.

If ministers were detained, Franks said the PM could prorogue Parliament to end the confinement, but that is also unlikely given the damage such a move could do to a Conservative brand already tarnished by proroguing Parliament twice.

Given that no matter what the government does it will likely have to hand over the documents, a compromise is more than likely, Franks said.

Milliken ruled on several matters related to the Afghan detainee controversy but only ruled against the government on the issue of the documents. He did not find that the government had intimidated committee witnesses or tried to interfere with their testimony—charges the opposition parties have levelled against the government.

On Tuesday, Minister of Justice Rob Nicholson said the government would review the decision and welcomed the possibility of a compromise.

“The government will not knowingly break the laws that were written and passed by Parliament. Our government will not compromise Canada’s national security nor will it jeopardize the lives of our men and women in uniform. That being said, we welcome the possibility of a compromise while respecting our legal obligations as acknowledged by the Speaker.”

Ignatieff said he was delighted with the ruling and would immediately seek a solution to the impasse with the government.

“We will make haste to arrive at a process by which we can review the documents, get the information Parliament needs without compromising national security,” he said.

“The highest authority in our Parliament has said ’sort it out.' We have had six months of this government pretending that, you know, we can’t trust the MPs, we can’t trust the Canadian public with these papers. He has said ‘find a solution.’ Once he has ruled the way he has ruled, you bet a solution will be possible.”

NDP leader Jack Layton described the ruling as a “very big win for Parliament and accountability.”

“I think this is a very strong and important ruling. ... We think there are many ways that this can be sorted out and we have made proposals. I’m sure that this can be worked out if there is goodwill all around the table.”