Thursday, April 29, 2010

Get a grip.


Wednesday, April 28, 2010

A Day in the Life of Norman Spector

5:30 AM Arose and had coffee with morning newspapers, the New York Times delivered by Kindle. Coffee was usual latte made from green beans hand-picked by Guatemala refugees in the highlands of Colombia, slowly roasted over a Saltspring Island sheep-dung fire. It tastes like shit.

6:37 AM Review all writings of Benjamin Disraeli, Edmund Burke, and Winston Churchill on parliamentary decmocracy. Decide it’s all a threat to national security and redact everything.

7:00 AM Review Speakers’s decision regarding supremacy of parliament. Redact everything. The speaker’s just this guy, you know?

7:15 Send considered opinion to Globe and Mail.

7:18 Walk dog.

Tuesday, April 27, 2010

The man from Niagara Falls grasps straws

I was drinking alone in the bar of the Chateau Laurier, after watching the Speaker of the House, Peter Milliken, deliver a fabulous precedent-setting ruling regarding the supremacy of Parliament over the executive. In my view as a constitutional lawyer, it was game, set, match.

Meanwhile, I had failed to get information from the Department of National Defence regarding information on prisoners taken by Canadian troops in Afghanistan, even though Deep Frog had pointed me in the right direction, and I was pondering the means of holding the Attorney-General of Canada responsible for obstruction of justice, exactly as the Man in Stripes from the CBC had commissioned me to do, offering the tantalizing possibilities of Leafs tickets for the playoffs.

I had resorted to history. The difficulty of prosecuting an obstruction of justice allegation against the Attorney-General is that the Department of Justice, which is answerable to the Attorney-General, has to take on the case, which is like investigating your boss.

Meanwhile back at the Department of Justice:

In a brief statement to reporters shortly after Milliken's decision, Justice Minister Rob Nicholson said the government "welcomes the possibility of a compromise while respecting our legal obligations, acknowledged by the Speaker."

No. It doesn’t work. The “legal obligations” of the government with regard to national security are in the abominable Section 38 of the Canada Evidence Act, which essentially says that “national security” is whatever the government says it is, prompted by any “official,” and in fact the government’s “legal obligations” are a matter of opinion – its own – which is the whole point of having the redacted documents reviewed by an authority who isn’t in government, as stated clearly in Section 2 of the Access to Information Act.

2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

I don’t know why Norman Spector doesn’t get this. Maybe it’s living on Vancouver Island.

Monday, April 26, 2010

Let's impeach Rob Nicholson. I'm only saying....

This arbitrary power is not to be had by conquest. Nor can any sovereign have it by succession; for no man can succeed to fraud, rapine, and violence. Those who give and those who receive arbitrary power are alike criminal; and there is no man but is bound to resist it to the best of his power, wherever it shall show its face to the world.

Law and arbitrary power are in eternal enmity. Name me a magistrate, and I will name property; name me power, and I will name protection. It is a contradiction in terms, it is blasphemy in religion, it is wickedness in politics, to say that any man can have arbitrary power. In every patent of office the duty is included. For what else does a magistrate exist? To suppose for power, is an absurdity in idea. Judges are guided and governed by the eternal laws of justice, to which we are all subject. We may bite our chains, if we will; but we shall be made to know ourselves, and be taught that man is born to be governed by law; and he that will substitute will in the place of it is an enemy to God.

Edmund Burke, at the trial of Warren Hastings

Tuesday, April 20, 2010

Document dump bear addendum

So, one might ask, what difference does it make whether I got 73 pages of redacted gibberish from the Department of National Defence, or 10 pages of redacted spreadsheet from the Department of National Defence?

The difference is that the judge, in this case Chief Justice Allan Lutfy of the Federal Court of Canada, was the only reviewing authority, "independently of government" to see the unredacted versions of the documents.

If, as it happened, he did not see and did not in fact know of the existence of the transfer log up to early 2007, he made his determination of the Section 15 application on the basis of evidence withheld from him, intentionally or otherwise.

It looks like the Justice Department is doing something similar.

The following is Article 139 from the Criminal Code of Canada (emphasis added):

Obstructing justice
139. (1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding,
(a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or
(b) where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody,
is guilty of
(c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(d) an offence punishable on summary conviction.
(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
(3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,
(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;
(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or
(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror.
R.S., c. C-34, s. 127; R.S., c. 2(2nd Supp.), s. 3; 1972, c. 13, s. 8.

Monday, April 19, 2010

That old familiar feeling...

Help Wanted




Friday, April 16, 2010

Harper Grounded by Mount Doom

Smoke and steam hang over the volcano under the Eyjafjallajokull glacier in Iceland. (Brynjar Gaudi/Associated Press)
"At that moment Sam felt a tremor in the ground beneath him, and he heard or sensed a deep remote rumble as of thunder imprisoned under the earth. There was a brief red flame that flickered under the clouds and died away. The Mountain too slept uneasily." Lord of the Rings

House of Commons Night in Canada is back in session, and I'm Ron MacLean here with Don Cherry. Don, we'll get to the hockey in a minute...

...during which Luongo might kill me. I still think he's trying to give me a heart attack. Maybe he's after my job.

Grapes, nobody is after your job 'cause nobody else could do it.

Maybe nobody else wants to do it, but I gotta say, Ottawa is really putting on a show...

Hockey or politics?

Are you kidding me? Politics! I mean, there are at least four out of control fires burning in Ottawa...

The Senators are on fire...

And I'm not talking about the Senators. You've got the Afghan detainee thing with Richard Colvin, the Helena Gorgeous affair...

...I think it's pronounced "Guergis"...

DON CHERRY can say it however you want... you've got your Rights and Democracy, and then the whole Afghanistan translator business, all fires out of control...

...and your point is?

Where's the Fire Department? Where's the PM? He's out of town!

But surely he has important international obligations...

Don't call me Shirley, and so what? His job is here, the Prime Minister of Canada, a job he asked for, his government falling apart from the inside, and his biggest priority is attending a Polish funeral?! Give me a break. I'm sure Polish funerals are a good time, I've been to more than a few fantastic Polish weddings, but he could have sent the Governor-General as head of state...


So he's taking a dive! You can't ignore it. He took a dive two times before when he perogied Parliament...

It's "prorogued," Don...

You can say it however you want, and if you look back, he punted the whole Afghanistan problem to John Manley, a Liberal, and basically, when the going gets tough, Harper leaves town...

So how do you see things playing out next week?

Harper's doom awaits him on Monday, on the ice. He can run but he can't hide. It's The Volcano Of Destiny. There's no way he can avoid it unless he dies. What's he gonna do now, get a note from the Governor-General? "Dear Mr. Speaker, Stephen isn't feeling well..." There's a bunch of guys lining him up, the most important being Derek Lee who is just...steamed.

Maybe we should get back to hockey....

What's the difference?

I'm not sure any more.

I think you're just overwhelmed by my dress sense.


Tuesday, April 13, 2010

Browsings of a document dump bear [links fixed]

"The major problem is quite simply one of grammar, and the main work to consult in this matter is Dr. Dan Streetmentioner's Time Traveller's Handbook of 1001 Tense Formations. It will tell you for instance how to describe something that was about to happen to you in the past before you avoided it by time-jumping forward two days in order to avoid it. The event will be described differently according to whether you are talking about it from the standpoint of your own natural time, from a time in the further future, or a time in the further past and is further complicated by the possibility of conducting conversations whilst you are actually travelling from one time to another with the intention of becoming your own father or mother." Douglas Adams, The Restaurant at the End of the Universe

So, OK, the reason for this blog is, as advertised, “the story of an attempt to extract public information from the Department of National Defence.” The information sought was and is concrete evidence that Canada is complying with its obligations under International Humanitarian Law, particularly the Geneva Conventions of August 12, 1949, and the reason I care being that millions of people died in the last two “World Wars”, and my Uncle Wilfred left me his Military Medal from World War 1 – specifically to me, he didn’t leave me anything else – and I have assumed that means he left me the Medal in trust, so that other kids don’t have to live through what he did. And of course, millions of people didn’t live through it. And kids are still getting killed.

All of that caused me to apply for information, through our excellent Access to Information Act, which in turn led to nine months’ delay, after which I received 73 almost totally redacted pages – exactly as the current Information Commissioner decried – after which I appealed to the previous Information Commissioner, which caused a further six months’ delay, following which I received a FOAD letter from said Commissioner, following which I applied for a judicial review in the Federal Court of Canada.

There were many times I almost quit, but some cantankerous spirit wouldn’t let me, thinking I’d let Uncle Wilfred down.

So I persevered, and ended up representing myself in the Federal Court of Canada, with endless support from friends and family who thought – probably correctly – that I was nuts, and was courteously received and lost, although the losing had benefits, particularly a “reading down” of the Access to Information Act so that ordinary Canadian citizens could more easily ask the government to be accountable. What more could I ask?

At that point, I thought maybe I should just wind up the blog, I’d done everything I could do. And yet….something wouldn’t let me go. I felt the government had tried to snow me, and therefore my Uncle Wilfred, and in my eyes – even worse – the Federal Court of Canada in the person of Chief Justice Allan Lutfy who showed me great consideration as a “lay litigant,” and who, after all that, I had seriously aggravated by almost forcing sudden death overtime with the Department of Justice. I mean, Crosby is Captain Canada. I was being Acting Lance Corporal not-Canada, and was about to be handed my head in a bag if I persisted in my quixotic battle with the Department of Justice, although in my mind it was the Department of National Defence I was after. That was six months ago, and in the interval I, like many others have been a horrified, yet fascinated, onlooker to the train wreck that is the “Afghan detainee issue,” being wildly appreciative that I wasn’t the only nutbar in the country who couldn’t let this go.

I was therefore equally fascinated to review the CBC “document dump” administered by the fabulous CBC Politics crew, particularly but not only, SuperBerry O’Malley, and I thought I had, as a result, a “Gotcha” moment. The reason for that is as follows. The ATIP response I received from the DND was the aforementioned almost entirely redacted 73 pages of military gibberish. At the hearing in Vancouver on April 20, 2009, I received a document “CAMPAIGN AGAINST TERRORISM DETAINEE TRANSFER LOG” which was almost exactly the document I had requested in December, 2006, but didn't know existed.

I thought…perfect… my Access to Information Act request had worked. Subsequently, after the hearing, I found out that this document was in the public domain as of November 2007, having been posted by Professor Amir Attaran of the University of Ottawa, and being the response of DFAIT to his Access to Information Act request, which, as it turns out, was subsequent to mine. One of the differences was, of course, I was dealing with the Department of National Defence which has a history. Or maybe it was just me. Whatever.

So in fact, the result of the hearing was that I got information that was already in the public domain, but that was fine, we were getting somewhere.

Then, with the whole Afghan documents thing in Parliament and the Canadian Military Police Complaints Commission proceeding relentlessly down the path of open government that I, a die-hard Canadian citizen, thought I knew and loved, the government released a mass of documents – an obvious snowstorm – which the CBC nevertheless organized and placed on the web in an accessible form.

So far, so hoopy.

I, as a concerned Canadian citizen, with more than a passing interest in the whole affair, browsed among said documents, and discovered what I thought was the smoking gun.

Let me take you, dear reader, back to the April 20, 2009 hearing in the Federal Court of Canada. The lawyer for the Department of Justice, Erin Tully, was representing a client, the Department of National Defence that seemed, even to me, uncooperative at best, and surly at worst. I thought it was taking years off her life, but my sympathies were limited: she was getting paid and I wasn’t.

So the crucial thing is, she stood up in Federal Court and said the following:

The entire transcript is here.

I took this as a good faith assertion – which I still believe it to be – that her client, the Department of National Defence, had led her to believe that the only documents that existed concerning Canadian prisoners in Afghanistan during Operation Medusa in September, 2006, were the 73 redacted and useless pages that Justice Lutfy assured me contained no information related to my request that had not already been revealed.

I could believe it. And yet…it bugged me. Here we have the…log, kept meticulously for four years from 2002 to April 2006 and it just ceased to exist? Some time ago, I decided that this was possible, even if highly unethical and almost certainly illegal.

Then, then, dear readers, I browsed the CBC document dump and discovered the following:

The next seven pages are exactly the same, although numbered consecutively pages 1-10 as a DFAIT document, EV.DFAIT.0002 .0 180.

So now we’re into the “Misleading Justice” section of the Criminal Code of Canada. It’s not me, particularly; it’s that the Chief Justice of the Federal Court of Canada was led to believe that documents which did exist did not exist.

Then, bells began to ring dimly in my addled mind. Wait, I thought, maybe these documents already exist in the public domain in Amir Attaran’s document dump of November 14, 2007.

And indeed they do. I submit that these documents, overlooked by me but freely available in the public domain, make clear that Canada did indeed keep track of prisoners taken in Afghanistan, and that such a summary existed until at least May, 2007 – contrary to the statement in open court by counsel for the Department of National Defence – and that that document took up at least 10 pages, the first forty prisoners having taken up a page and a bit, which works out to - at 30 lines per page - 300 prisoners as of May 2007. And the documents exist. There can be no doubt of what’s under the redacted 10 pages: the DFAIT document number - EV.DFAIT.0002 .0 180 - is the same for all 10 pages, the date of release is the same, and it occurs in the document between two emails that refer to it as such. What else could it be? The floor plan of the Canadian Ambassador’s residence in Kabul? The arrivals and departures schedule of Canadian Forces aircraft at Kandahar Airfield? Afghan recipes?

This little problem – misleading justice – seems endemic to the culture at National Defence Headquarters, as revealed in the Somalia Inquiry, but not in Afghanistan to the troops on the ground who seemed perfectly aware of their responsibilities as defined by Section 12 particularly of the Third Geneva Convention Regarding Prisoners of War.

The good news is, it’s all gonna come out, this is Canada. I’m not saying it won’t hurt. So what? Here’s my Uncle Wilfred’s Military Medal citation:

So, in what seemed to be the logical conclusion, I filed a complaint against Gordon O'Connor and Rick Hillier with the RCMP War Crimes Section. The complaint and associated correspondence is here. Uncle Wilfred, we'll just have to see what happens.

Monday, April 12, 2010

The Great Train Wreck

Canada's National Security State Comes Off the Rails
Welcome to House of Commons Night in Canada. I'm Ron MacLean here with Don Cherry. Grapes, the NHL regular season has finally expired, and we're looking at some interesting playoff matches, Ottawa and Pittsburgh being one. How do you see things working out?

So, I wanna talk about the hit Derek Lee put on Rob Nicholson. This is how the game of parliamentary democracy should be played. Nicholson comes out of his own zone with the puck, head down, and Lee on the backcheck just lays him out. A great, clean, open-ice hit. You don't have to see the replay, go upstairs, slow motion, any of that. Beautiful.

But I don't see what that has to do with the playoffs....

Are you kidding me? That IS the playoffs. You wanted to talk about Ottawa...

RON MACLEAN the playoffs...

This IS the playoffs. Whaddya want? I mean, Roy MacGregor has this column in the Globe, moaning about how Canadian politics is dull. I love Roy, don't get me wrong, but I think he's got a giant Olympic hangover. Roy!!

But getting back to the NHL playoffs...

..which haven't even started. Meanwhile, Richard Colvin is appearing before the Canadian Military Police Complaints Commission tomorrow...

...a barn-burner for parliamentary democracy fans...

Yeah, and that isn't even the main attraction...

You're talking about Helena Guergis?

Who's Helena Guergis?

If you don't know, I don't think I can explain it...

Yeah, well whoever she is, she isn't Speaker Milliken who's got to show up for the motions of contempt before the House....

Remind us what that's about?

I can't believe I have to explain this to you. Look at my suit!

Yes, it appears to be a tasteful motif of Guy Fawkes' confession...

And the tie? You haven't mentioned the tie!

...features a reproduction of the Magna Carta superimposed on the Stanley Cup.


Until next time, that's it for House of Commons Night in Canada.

Did you read Derek Lee's speech in Hansard?

I haven't got there yet, no.

It's a thing a beauty. CPAC has high-definition slow motion replays, and you can control the camera angle!


Browsing Part 4 of the CBC Afghan Document Dump

in progress...

Wednesday, April 7, 2010

truth will come to light

Excerpt from the Third Geneva Convention of August 12, 1949

Chapter II. Quarters, Food and Clothing of Prisoners of War

Art 25. Prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area. The said conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health.

The foregoing provisions shall apply in particular to the dormitories of prisoners of war as regards both total surface and minimum cubic space, and the general installations, bedding and blankets.

The premises provided for the use of prisoners of war individually or collectively, shall be entirely protected from dampness and adequately heated and lighted, in particular between dusk and lights out. All precautions must be taken against the danger of fire.

In any camps in which women prisoners of war, as well as men, are accommodated, separate dormitories shall be provided for them.

Monday, April 5, 2010


Welcome back to House of Commons Night in Canada after the Easter long weekend. I'm Ron MacLean here with Don Cherry. Grapes, I know you've got a lot to talk about, at the end of the regular season...


And yet we have to get to the buzz that's going're in the running for Governor-General.

So Kiprusoff just couldn't stone Chicago. In my books, he's still the best goalie in the universe but you can't win a game all on your own. Next year.....NEXT YEAR... the Flames will be back in contention because of this guy.

Yeah but we're pressed for time, as usual, and we have to get to the Governor-General rumours...

What's wrong with Michelle Gene? She's already the Governor-General, and like I said before, she shoulda been the one handing out Olympic medals rather than Dick Pound...

Yeah, we've been here before, but the fact is, the Prime Minister is looking for a new Governor-General, and your name has been floated as a hot candidate.

Look, I'm honoured to be considered. But I've already got a job.

You don't want to move into Rideau Hall?

Well, Blue might like it. There's a lotta trees. Now that I think about it, could I have a backyard rink?

I don't see why not...

And can I still do Coach's Corner?

You'd have to ask the Prime Minister, but why not? Rideau Hall might need a bigger beer fridge.

I don't see that as a problem.

Me either...

But in this day and age, you gotta speak both official languages...

You used to play in Three Rivers...

Yeah, but that was different. I did my talking on the ice: it's the same in English and French.

So if not you, then who?

I think Hayley Wickenheiser is the obvious candidate. She's a woman, she's a hockey player, she's a Gold Medal winner, and she probably speaks all five official languages.

I didn't know there were five...

At least five. I'm sure one of them is Ukrainian. Isn't Hayley from Saskatchewan?

I'm not sure we want to go there...

You don't want to go to Saskatchewan?!

I didn't exactly say that...

Or why not Gordie Howe? He's in as good a shape as I am, and he can skate better.

So that's it for House of Commons Night in Canada...

Does Rideau Hall have a pool table?

If it doesn't, you could install one.

You know, I'm starting to warm up to the idea.

You'll have to inspect the Governor-General's Horse Guards. Will you wear sunglasses?

Hey, is the Pope Catholic?

Let's not go there.

Why, is the Pope in Saskatchewan?

Thursday, April 1, 2010

[redactio ad absurdum]

The Canadians attack at Vimy Ridge. Image from Library and Archives Canada

A guttering candle burned low in the cubicle of Sergeant-Major X. It was 2 AM at National Defence Headquarters. No end was in sight.

Sergeant-Major X regarded the candle grimly. He had volunteered his services to the Canadian Forces after retirement, thinking perhaps of a job at Vimy Ridge, explaining the battle in both official languages. Failing that, he imagined counselling returning soldiers traumatized by battlefield experiences, or even recruiting volunteers by describing the importance, and indeed honour, or serving in the Canadian military.

Instead, he'd been installed in this cubicle - the Black Hole of Ottawa - and asked , ordered, whatever, to remove "sensitive" material from thousands of pages of DND documents relating to Afghanistan. It was an ambiguous assignment - he was starting to think deliberately so. He'd seen it before at the Somalia Inquiry. So far, nobody had suggested shredding anything, but it was only a matter of time, he thought.

A large pile of unredacted documents was to his left, a smaller pile of redacted documents to his right.

He had started with a fountain pen and a bottle of India ink. Then, he'd used Sharpies, modified by filing them down to a blunt edge that could obliterate two lines at a time. Then he'd gone to Canadian Tire for paint rollers and tins of Midnight Black.

For guidance, he had Section 15 of the Access to Information Act:

International affairs and defence

15. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities, including, without restricting the generality of the foregoing, any such information
(a) relating to military tactics or strategy, or relating to military exercises or operations undertaken in preparation for hostilities or in connection with the detection, prevention or suppression of subversive or hostile activities;
(b) relating to the quantity, characteristics, capabilities or deployment of weapons or other defence equipment or of anything being designed, developed, produced or considered for use as weapons or other defence equipment;
(c) relating to the characteristics, capabilities, performance, potential, deployment, functions or role of any defence establishment, of any military force, unit or personnel or of any organization or person responsible for the detection, prevention or suppression of subversive or hostile activities;
(d) obtained or prepared for the purpose of intelligence relating to
(i) the defence of Canada or any state allied or associated with Canada, or
(ii) the detection, prevention or suppression of subversive or hostile activities;
(e) obtained or prepared for the purpose of intelligence respecting foreign states, international organizations of states or citizens of foreign states used by the Government of Canada in the process of deliberation and consultation or in the conduct of international affairs;
(f) on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to in paragraph (d) or (e) or on sources of such information;
(g) on the positions adopted or to be adopted by the Government of Canada, governments of foreign states or international organizations of states for the purpose of present or future international negotiations;
(h) that constitutes diplomatic correspondence exchanged with foreign states or international organizations of states or official correspondence exchanged with Canadian diplomatic missions or consular posts abroad; or
(i) relating to the communications or cryptographic systems of Canada or foreign states used
(i) for the conduct of international affairs,
(ii) for the defence of Canada or any state allied or associated with Canada, or
(iii) in relation to the detection, prevention or suppression of subversive or hostile activities.

(2) In this section,

“defence of Canada or any state allied or associated with Canada”
« défense du Canada ou d’États alliés ou associés avec le Canada »
“defence of Canada or any state allied or associated with Canada” includes the efforts of Canada and of foreign states toward the detection, prevention or suppression of activities of any foreign state directed toward actual or potential attack or other acts of aggression against Canada or any state allied or associated with Canada;

“subversive or hostile activities”
« activités hostiles ou subversives »
“subversive or hostile activities” means
(a) espionage against Canada or any state allied or associated with Canada,
(b) sabotage,
(c) activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states,
(d) activities directed toward accomplishing government change within Canada or foreign states by the use of or the encouragement of the use of force, violence or any criminal means,
(e) activities directed toward gathering information used for intelligence purposes that relates to Canada or any state allied or associated with Canada, and
(f) activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada.
1980-81-82-83, c. 111, Sch. I “15”.

The night wore on. Sergeant-Major X did his best. Dawn crept slowly to the Ottawa sky. It was done: 8,000 randomly redacted pages. No country could ask for more.