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.