AFTER THE SPEAKER’S RULING: Open Letter on the House of Commons Process for Examining Documents on Afghan Detainees Produced Pursuant to the House of Commons Order of December 10, 2010

(The Court returns after a week transitioning from our 2009-2010 academic-year editorial team to our summer editors. We thank our readers for their patience during this break. From May 3 through to the end of August, we move to our summer publication schedule of three postings per week [usually Mondays, Wednesdays and Fridays] with occasional posts on Tuesdays and/or Thursdays as external contributions permit. The Court continues to welcome submissions from its readership and from the wider legal community.

The first posting from our three Summer Editors begins on Wednesday, May 5. We begin the summer schedule with the following posting by Editor-in-Chief Professor Craig Scott.)

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On April 27, 2010, House of Commons Speaker Peter Milliken handed down his ruling on whether the Government had breached Parliamentary privilege by failure to comply with the House of Commons’ December 10, 2009, Order that the Government must produce uncensored copies of documents in a list of categories. (See Ruling on the Questions of Privilege Raised on March 18, 2010, by the Member For Scarborough—Rouge River (Mr. Lee), the Member for St. John’s East (Mr. Harris), and the Member for Saint-Jean (Mr. Bachand) Concerning the Order of the House of December 10, 2009, Respecting the Production of Afghan Detainee Documents.)  The House was, and is, seeking documents relevant to Canada’s policy and practice of transferring detainees to Afghanistan authorities and to concerns of Canadian involvement in incidents or even a pattern of torture notably by Afghanistan’s National Directorate of Security.

Today, May 3, 2010, Canadian Lawyer Online is publishing in parallel with the present posting my opinion piece entitled “Parliamentary Privilege After Milliken: What process should emerge from the Speaker’s Ruling?”  Readers may wish to read that piece first before turning to the below Open Letter sent to Members of Parliament Michael Ignatieff, Bob Rae and Ujjal Dosanjh on May 2.

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The Honourable Michael Ignatieff, MP,

The Honourable Robert K. Rae, MP

The Honourable Ujjal Dosanjh, MP

May 2, 2010

Dear Mr. Ignatieff, Mr. Rae, Mr. Dosanjh,

I am writing to Mr. Ignatieff in his capacity as Leader of the Official Opposition and to Mr. Rae and Mr. Dosanjh as the members of the Special Committee on the Canadian Mission in Afghanistan who have taken the lead for the Liberal Party. I am writing to you with my unsolicited view on matters involving the House process that is being negotiated with the Government after Speaker Milliken’s ruling. I hope you will indulge me this opinion, given that Mr. Rae and Mr. Dosanjh will know I have been following the work of the Special Committee – and the issues at stake – very closely. This letter is an open letter and may be posted on www.TheCourt.ca on May 3 or on May 4.

I believe the NDP and the Bloc Québécois are correct (a) not to be willing to re-purpose Mr Iacobucci from his current role acting for the Government, and also (b) to insist there can be no filter on production of documents seen by the designated MPs (what information can then be made public is a separate issue/stage). I would like to address these conjoined questions, followed by a note on the nature of the time that will be needed for designated MPs to examine documents produced under the House of Commons Order of December 10, 2009. Finally, I note a separate comment I have written, to be published tomorrow, May 3, 2010, by Canadian Lawyer online (www.canadianlawyermag.com) to which I refer you for two other process points, one relating to the Canada Evidence Act and one relating to information flows to relevant police services.

By way of preface, it is relevant to establish – and emphasize – Mr. Iacobucci’s present status. You will know that the Government wishes to keep referring to Mr Iacobucci as “Justice Iacobucci.” This is an honorific that, by custom, can be used in relation to a retired judge, and I have used it myself in relation to Mr. Iacobucci (who has earned it no less than any other former Supreme Court justice). But the heavy-handed emphasis on this form of address – see Ministers’ answers to questions in Question Period of March 15 for a flavour [appended] – has clearly been done to create the impression of stature and third-party neutrality. Indeed, it would not be too much of a stretch to suppose the Government wishes to plant in the mind of the average Canadian that the Government appointed an acting judge, as opposed to having hired a lawyer who once was a judge. As well, even as the Government designates him as “Independent Adviser” (in his Terms of Reference), he is presently acting in some sort of capacity as a confidential adviser that will probably turn out to be a solicitor-client relationship with the Government.

Indeed, we are entitled to assume that Mr. Iacobucci and the Government view him as having been hired to give legal advice. Part of the problem is that, to my knowledge, the Government has not been up-front about whether they consider themselves to have hired a lawyer qua lawyer, but, when push comes to shove, that is almost certainly the capacity in which Mr. Iacobucci will turn out to have agreed to act. I am assisted in this supposition by the failure of both Ministers Nicholson and Baird to specify Mr. Iacobucci was not hired qua lawyer in answers to questions by both Mr. Rae and Mr. Dosanjh in the House on March 15, 2010. On that occasion, both of you referenced what you assumed was Mr. Iacobucci’s role as a lawyer in your questions. Mr. Dosanjh referred to the Government having “hired …yet another lawyer” and expressed concern that Mr. Iacobucci “will not be able to release his report to the public if the government claims solicitor-client privilege.” Mr. Rae said in the same session, “There is a difference between starting a public inquiry and simply finding a new lawyer who does not have the power to do the necessary work.” That both questioners assumed Mr. Iacobucci was acting as lawyer is clear as day; neither Minister having corrected this impression, I conclude that it must be the case. By the way, it may well be that the Government has since confirmed that Mr. Iacobucci is acting as the Government’s lawyer in his capacity as “Independent Adviser” but I have not been able to confirm this from a search of Hansard or the news reports.

In my opinion, the House does not now have time, within the deadline given by Speaker Milliken, to sort out the complexities of what it means, from a practical and/or legal-professional perspective, for Mr. Iacobucci to simply move over from the Government as his “client” (you will recognize that this was Speaker Milliken’s own very pointed choice of word in his ruling) to being some sort of adviser (lawyer?) to the House. For example, there may be things he has been told or heard from Government officials or Government lawyers that could constrain what he can say or do if he moves over from advising the Government – unless the Government waives solicitor-client confidentiality entirely. Just a couple examples may suffice. If the Government considers certain sets of documents (by subject-matter or by type of document) to not fall within the list of document categories of the House’s Order of December 10, 2010 – a list that Minister Baird said, on March 15, would be the basis for Mr. Iacobucci receiving all documents he wishes to see – and has told this to Mr. Iacobucci in response to a query from Mr. Iacobucci, is this confidential information from a solicitor-client perspective? Or, if, again despite what was said in the House, the Government actually declined to give a specific document or set of documents to Mr. Iacobucci, or is in some sort of to-and-fro with him over whether a document is relevant, will he be able to tell the House of the document’s existence? Or, if Mr. Iacobucci generated a series of queries of the Government in an effort to make sure he was getting all the documents he felt entitled to receive, are those queries – and their results – confidential?

In light of such examples, do the Opposition parties really want to spend time arguing with the Government that they must waive any confidentiality in Mr. Iacobucci’s previous relationship with the Government? Have no doubt that such waiver is an absolute must. Also, there are Law Society of Upper Canada Rules of Professional Conduct that indicate that a lawyer cannot switch sides in the same matter without the consent of the former client. Will the Government take the view that their “Independent Adviser”, who is also their lawyer, will also be the House’s lawyer whatever label the House gives to his advisory role? One must assume this will be their likely interpretation, and so, at minimum, you would need also to get the Government’s explicit (not just implicit) consent to allow him to act for the House. Perhaps the Government will act with an uncharacteristic attitude of accommodation and provide both the confidentiality waiver and the new-client consent without a tussle, but the game (of securing Mr. Iacobucci’s services) is certainly not worth the candle if the government hems and haws on this.

Quite apart from the foregoing, Mr Duceppe was correct to note that Mr. Iacobucci voluntarily accepted to serve a cloaked process that was clearly, indeed palpably, designed by the Government to sidestep the Order of the House of December 10, 2009, and more generally to keep Parliament and the public out of the picture as much as possible. There are issues related to the appearance of independence in the eyes of the public that Mr. Duceppe may have been getting at, and which need to be taken seriously.

However, in my view, especially if the House process is going to rely on a single adviser or give one adviser a paramount role, I believe the House would benefit much more from the advice of legal professionals – not to mention one or more non-lawyer experts in security matters (e.g. former head of CSIS Reid Morden) – who both have no current connection to the Government and are, as well, knowledgeable about (indeed, ‘wise to’) the tendency of the Government at large, the military and the intelligence services to employ arguments that cast an exceptionally wide net over information.

Such a tendency is very much a problem with respect to the criterion of “international relations” as one of the three criteria for treating information as sensitive and thus secret. This term, found in Mr. Iacobucci’s Terms of Reference and taken from the Canada Evidence Act, is simultaneously extremely broad and undefined, such that one’s executive-leaning perspectives could well become important in giving content to that criterion if it is kept as a criterion within the House process. It is enough that “national security” and “national defence” – the two other criteria in both the Canada Evidence Act and the Iacobucci Terms of Reference – can be argued by the Government to be very broad indeed, and that the Government will be able to call upon a phalanx of seasoned and oft-pugnacious in-house Government lawyers to argue against release of information to the public. In such a context, the House needs to be fully empowered with an advisory team who one really should be looking to be counter-weights to what the Government will throw at MPs.

If, once the House’s own advice is taken care of, a third-party actor is needed to mediate or arbitrate on what can be released for public view, note that there are well-situated sitting judges who may well be asked to assist the process. Justice O’Connor of the Ontario Court of Appeal (and of the Arar Commission of Inquiry) comes to mind immediately. The Arar Commission was a very different process from the Internal Inquiry regarding Mr. Almalki (and others) that was run by Mr. Iacobucci. The Arar Commission was one in which the public interest in transparency was central to the role Justice O’Connor had to play – a context much closer to the upcoming House process, I would suggest, than the behind-closed-doors baselines of the Almalki Internal Inquiry presided over by Mr. Iacobucci. I would add that Justice O’Connor gained immense experience tussling with the Government over a wide range of information-related issues versus the much more limited difference of opinion Mr Iacobucci had over several pages of observations in the Almalki Inquiry context.

There is another sitting judge who is highly respected (at least, outside Government and, I suspect, by most Government lawyers as well) for how he handles national security law cases. Judge Richard Mosley of the Federal Court has the reputation of being a truly neutral and even-handed judge. He seems to have an independent cast of mind and, in security-related cases before him, does not accept uncritically what the Government and intelligence services argue. For example, he seems to be demanding when presented by the Government with arguments based on the “mosaic theory.” On that ‘theory’, as you will know, even an innocuous piece of information can be argued (indeed, argued more or less on the basis of ‘trust us, we know’) to be sensitive information on the basis that, if it is added to other innocuous pieces of information that may also get into the public domain, a mosaic emerges that, in the hands of adversaries, may harm Canada’s national security. Whatever the extent of the validity of the mosaic theory, it is easy to imagine the abuse of the theory and the corresponding need for a seasoned response to its invocation.

If there is one theme to the above, it is this: it is important that the decision-making process of MPs – once the documents are seen by designated MPs – leans as much as possible towards transparency rather than replicating the instincts of this Government (and, to be fair to this Government, by times previous Liberal Governments as well) to keep almost everything possible from the public.

I have worn out my welcome by now, I am sure, but please allow me to comment on one further matter. Commentators seem to be repeating, somewhat unreflectively, the notion that, since thousands of pages are potentially at issue, sorting through them could take ages – and this then gets linked to some parties’ concerns not to lose MPs to a process of sitting in a room sifting through documents. With respect, this notion seems to be based implicitly on the false assumption that all these documents will need to be gone over with a fine-tooth comb, as if each and every one stands an equal chance of needing to be redacted. However, this would not seem to be the case, because designated MPs’ task will naturally be to look for material relevant to the concerns that have been raised for the last many months. This involves concentrated skim-reading, not close reading of everything nor redaction. When potentially relevant documents are noticed, they can be pulled for a closer read and then for discussions and likely debate on possible redaction. Even then, redaction will only be necessary at the stage at which the question is the release of documents to the public versus, for example, an in camera session of the Special Committee.

If, on the other hand, the concern is that MPs on the Special Committee wish to be able to debate and publicly comment on what may turn up in the documents, without fear of inadvertently giving away anything that is truly sensitive information (because they will have seen the non-redacted version prior to the creation of the redacted public version), then there is no choice but for redaction decisions to be made by some House process other than the Special Committee before getting to the Special Committee. But it would be a grave error to think that this pre-Special Committee process would not itself need to have MPs as part of it. MPs must indeed be part of it, and, as outlined above, they need to be familiar enough with the detainee transfer issue to be able to efficiently find the most relevant documents (in the skim-reading process I noted above). Yet, again, even this redaction process should not be anywhere near as time-consuming as many seem to be assuming because this is not a situation of every single document needing to be excised of sensitive information before it gets to the Special Committee. Vast numbers of documents with sensitive information may fall within the broad categories of documents indicated in the December 10 House Order but be of no interest, or of no immediate interest, to the Special Committee, and therefore redaction does not come into the picture for these documents and is therefore not part of the time equation.

Thank you for considering these views. I wish you, your colleagues in the other Opposition parties, and the Government well in the negotiations this week.

Yours sincerely,

Craig Scott, Professor of Law,

Director, Nathanson Centre on Transnational Human Rights, Crime and Security,

Osgoode Hall Law School,

4700 Keele St, Toronto, Ontario, M3J 1P3, Canada

APPENDIX – Extracts from March 15, 2010, Hansard

Afghanistan

Hon. Bob Rae (Toronto Centre, Lib.):

Mr. Speaker, last week the Prime Minister of Canada said in the House that Justice Iacobucci would conduct a thorough inquiry into the issue of Afghan detainees. At the end of the week, we learned that Justice Iacobucci does not even have the power to subpoena new documents.

Why did the government not do what the Prime Minister promised last week?

[English]

Hon. John Baird (Minister of Transport, Infrastructure and Communities, CPC):

Mr. Speaker, here is what the Prime Minister did say in this place last week. He said that he had requested Justice Frank Iacobucci to undertake an independent, comprehensive and proper review of all the redacted documents related to Taliban prisoners. Justice Iacobucci will look at all the relevant documents going back not just with respect to this government but even to the previous government.

He will report on the proposed redactions, how they genuinely relate to information that would be injurious to Canada’s national security, national defence or international interests. We should have confidence in a man of this gentleman’s esteem.

[Translation]

Hon. Bob Rae (Toronto Centre, Lib.):

Mr. Speaker, we have the utmost confidence in Justice Iacobucci; that is not the question. It is not him that we have a problem with, it is the government. There is a difference between starting a public inquiry and simply finding a new lawyer who does not have the power to do the necessary work.

I have a very simple question: why not have a public inquiry to finally get to the bottom of things?

[English]

Hon. John Baird (Minister of Transport, Infrastructure and Communities, CPC):

Let me be very clear, Mr. Speaker. Justice Iacobucci will have access to all relevant documents. He will be able to review them. He will be able to undertake his activities in an independent fashion. He will be able to do it comprehensively. He will have the ability to review all of the documents and report back not just to Canadians but to this House.

We should trust Justice Iacobucci and let him do his work.

Hon. Bob Rae (Toronto Centre, Lib.):

Mr. Speaker, we trust Mr. Iacobucci. We do not trust the government. That is the difference, and there is a big difference.

Mr. Iacobucci does not have the power to subpoena the documents. The test of relevance is a test that the government itself will apply. It is not Mr. Iacobucci who determines what relevance is.

Again, I ask the minister, why not have a public inquiry and give Mr. Justice Iacobucci the powers that he so richly deserves to do the job that Canadians want him to do? That is the question.

Hon. John Baird (Minister of Transport, Infrastructure and Communities, CPC):

Mr. Speaker, we have said Justice Iacobucci will be able to look at all relevant documents. How does one find relevant documents? Exactly from the motion the Liberal leader put forward. He can also look at all documents related to this issue.

Also, he will not need to subpoena documents because the government has been incredibly clear that we will provide him with all of the relevant documents. Let Justice Iacobucci conduct his review, let him report back to Parliament, let him report back to Canadians who have confidence in a man of this character.

Hon. Ujjal Dosanjh (Vancouver South, Lib.):

Mr. Speaker, instead of being asked to conduct a full public inquiry, a respected jurist has been hired as yet another lawyer by the government. He will only see what the government gives him. He will report to the government. He will not be able to release his report to the public if the government claims solicitor-client privilege.

If the government really wanted answers, it would give Mr. Iacobucci the mandate to conduct a full public inquiry, or are there horrible secrets that the government is trying to hide?

Hon. Rob Nicholson (Minister of Justice and Attorney General of Canada, CPC):

Mr. Speaker, that is completely untrue. As we have indicated and as was indicated in the terms of reference, Mr. Justice Iacobucci will have access to all relevant documents. He will complete a proper review and he will report those general findings to the public. This should have the support of the hon. member.

Hon. Ujjal Dosanjh (Vancouver South, Lib.):

Mr. Speaker, according to the terms of reference, the government will decide what is relevant and give it to Mr. Iacobucci. He will not have the power to subpoena other documents or the authority to release his opinion publicly. He will not be able to reveal the whole story to Canadians and there is no end date for his work to be completed. We are right back where we started.

Why will Mr. Iacobucci not “conduct a thorough inquiry”, as the Prime Minister said last week? What damning secrets is the government trying to hide?

Hon. Rob Nicholson (Minister of Justice and Attorney General of Canada, CPC):

Mr. Speaker, we are providing all the documents that are of interest to the members of the House, and we are going beyond that. We are going back to 2001, which was the beginning of our involvement in Afghanistan.

Mr. Justice Iacobucci will have complete authorization to have a look at those. Again, he will report those general findings back to the House.