The Man From Niagara Falls Strikes Back

I was seated alone in the bar of the Hotel Vancouver, waiting for my contact who claimed to have a back door into National Defence. I was watching Rob Nicholson on CPAC, defending his government against the Contempt of Parliament motions being brought by Derek Lee and others. I had to bribe the bartender to change one of the multiple wide screen TVs to CPAC; he claimed the management had told him to show only The Nature of Things with David Suzuki. It made people drink.

I didn't see the problem. Watching Nicholson had the same effect. I heard that Derek Lee took notes on index cards during Nicholson's speech. I didn't have index cards so was using bar napkins. They were piling up around my table like...well, like a pile of bar napkins with scribbling on them. The bartender was eyeing me with concern.

My Blackberry went off. My Vancouver contact had texted me: "URGENT! l$&Xi9* Hillier #$%5bW". Clearly it was in code. Well OK, if it was clear, it wouldn't have been in code. Or if it was code, it wouldn't have been clear. But if it was in code, I should have had the code. Oh, God. I ordered another Screech.

Nicholson had mercifully finished and we had The Nature of Things on all channels. I tried to organize my notes.

"Mr. Speaker, it is not entirely clear from the submissions of the three members as to what exactly was being alleged as a prima facie case of a breach of privilege.

"For instance, the Member for Scarborough—Rouge River proceeded to accuse members of this government and officials of the Department of Justice everything from “malice” and “subversive intent” to “constitutional sedition” and “conspiracy”.

"On the other hand, the Member for St. John’s East and the Member for Saint-Jean asked you to find a prima facie breach of privilege based on the House order of December 10, 2009. Yet, from the motion they proposed should such a prima facie case were to be found, they made it clear that no actual breach of privilege has occurred since the original order lacked procedures to protect national security interests."

I was confused. I thought the issue was the supremacy of Parliament. The evil shadows of Sections 38.01 and 38.02 of the Canada Evidence Act swirled around me and made a whirlwind of napkins. What next?

"Similarly, O’Brien and Bosc cite Joseph Maingot’s Parliamentary Privilege in Canada that “A genuine question of privilege is therefore a serious matter not to be reckoned with lightly, and thus rarely raised in the House of Commons.” Similarly, they cite the 1976 report of the Special Committee on Rights and Immunities of Members, chaired by Speaker Jerome, in noting that “a question of privilege is a serious matter, when validly raised, but was frequently resorted to when no real question of privilege was actually involved.”

What? Who said this wasn't serious? And why had John Sims, Deputy Attorney-General of Canada, precipitously resigned, effective tomorrow? And why was the new Deputy Attorney-General a guy who had worked for Elmer MacKay and Brian Mulroney?

My Blackberry went off again. ""URGENTER! Trapped in bar outside *&34#>Z with ___(^SD."

Another napkin:

"Freedom of speech is essential in a free and democratic society. Freedom of speech is also the cornerstone of parliamentary privilege. Freedom of speech is essential in order to facilitate debate in the House and more generally in a democratic society. This means there is an acceptance that members will hold differing views – and they have the protected right to express those differences. That includes opinions as to interpretation of laws."

How was I to make sense of this gibberish? Why was the Attorney-General defending freedom of speech after refusing to let George Galloway into the country because of "national security"? And what did any of this have to do with the motions before the House? I was descending into a Hunter Thompson-ish fugue state of manic writing and paranoid suspicion.

My Blackberry went off a third time: "URGENTEST!..."

...to be continued.

Man Bites Elephant

Robert Fowler's therapeutic intervention in Canada's folie à deux with the United States.

The above Globe and Mail report is from last weekend's Liberal Conference in Montreal, and includes a full length post of Mr. Fowler's 30 minute speech which "the world needs to hear" (a quote from a person at the Liberal Conference).

From the National Post, December 15, 2008, part of a report at the time of his kidnap:

In nearly four decades as a public servant, Mr. Fowler, 68, was a foreign policy adviser to former prime ministers Pierre Trudeau, John Turner and Brian Mulroney, served as deputy minister of National Defence, and was Canada's longest-serving ambassador to the United Nations. He was also ambassador to Italy and the United Nations food agency.

He retired in the fall of 2006 and took up lecturing on international affairs at the University of Ottawa. Though he is still a senior fellow at the university, he did not lecture this fall.

Colleagues say Mr. Fowler has been fascinated by Africa since his first posting to Rwanda as a young foreign service officer. He returned to the continent frequently, serving as the prime minister's special ambassador for Africa when he was ambassador to Italy and, in 2005, working on an advisory team reporting to the prime minister on the humanitarian crisis in Darfur.

Mr. Fowler was careful about security while travelling in Africa, said Senator Mobina Jaffer, who travelled with Mr. Fowler and Senator Romeo Dallaire to Darfur.

"When you work in danger areas, you don't do stupid things but you just keep working, that was his attitude," she said. "He was cautious but you know when you go into a conflict zone, it is not 100% safe."

An amateur photographer, Mr. Fowler's affection for Africa and its people was evident in the many photographs he took while on travelling there, Jaffer said. Senator Colin Kenny, a friend of Mr. Fowler's and a former classmate from Bishop's College in Lennoxville, Que., said he connected with Trudeau on Africa.

"He caught the prime minister's imagination with his ability to talk about his experiences," Mr. Kenny said. "He always talked about it as a place with issues and problems but I never heard him talk in the context of personal risks."

In Ottawa, Mr. Fowler is best remembered as a powerful deputy minister of Defence under Brian Mulroney, in a difficult period that saw the department tarnished by the ill-fated mission in Somalia.

On a web page featuring many of the photographs he has taken (robertrfowler.com), Mr. Fowler writes that his travels have taken him to "some of our time's most appalling circumstances."

"Whether it be the midst of the genocide in Rwanda, the ravages of the Angolan civil war, the never-ending struggle in the Middle East, or the pervasive and grinding poverty which afflicts so much of our world as we in the West enjoy a time of unprecedented plenty, individual dignity is ever-evident and the human spirit so clearly does prevail.

"It is this that I've tried to capture in these images."

A UN official said Mr. Fowler's mission as envoy is to deal with the "general political situation" in Niger. Another official described it as a "good offices mission," which generally means acting as a go-between among opposing groups.

"We have had no indication of who or what is behind this," said a UN official. "At this stage, we don't have any details about what happened to these three people."

Former Foreign Affairs minister Lloyd Axworthy described Mr. Fowler in a TV interview as a "fearless" and greatly experienced ambassador and UN envoy who is devoted to public service.

"He's been in pretty tough situations in the past," Mr. Axworthy said, citing Mr. Fowler's taking on of the diamond trade in Angola when he was Canadian ambassador to the United Nations.

Mr. Axworthy, who served as a UN envoy himself after retiring from federal politics, noted that envoys often travel with little protection. He called the situation "disturbing."

A UN official said Mr. Fowler's special envoy work has been behind-the-scenes assistance with negotiations to quell "disturbances in the some parts of the country, pitting various groups against one another."

One conflict is between Tuareg tribesmen and government troops over ownership of land and uranium deposits, among the largest in the world. Whether Mr. Fowler and Mr. Guay were on a mission involving resource conflict is not clear.

Niger's minister of communication, Mohamed Ben Omar, told Agence France-Presse that Mr. Fowler arrived Thursday in Niamey after he sought an official invitation to celebrations in the western town of Tillaberi, which were being held to mark the 50th anniversary of Niger gaining autonomy from France.

He was not in Niger on official business, the minister told AFP.

Officials were told about Mr. Fowler's disappearance in the pre-dawn hours of Monday after his abandoned vehicle was turned over to authorities.

"Inside were found three telephones, a camera and a jacket," Ben Omar said.

"These disappearances surprise us," the minister said. He added that security forces have been deployed in the area to try to find Mr. Fowler, but noted the diplomat had not informed authorities or the UN office in Niger of his trip.

The landlocked West African country, one of the world's poorest, is coping with a rebellion in its northern region. The frontier region of Tillaberi is, however, well away from the scene of rebel fighting.

With files from Juliet O'Neill and Agence France-Presse



Read more: http://www.nationalpost.com/news/story.html?id=1078986#ixzz0jd94XJaL

Don embraces document trolling...

RON MACLEAN
Welcome to House of Commons Night in Canada. I'm Ron MacLean here with Don Cherry at the end of a frantic week in the House. There's almost too much going on, but first and foremost is we have yet to hear from Speaker Milliken on the Contempt of Parliament motion, and yet the government delivered about 2500 pages of detainee-related documents to the Special Committee on the Canadian Mission in Afghanistan. How does that all add up?

DON CHERRY
Best I can do is tell you a joke.

RON MACLEAN
You're kidding!

DON CHERRY
What's the difference between Ann Coulter and George Galloway?

RON MACLEAN
OK, what?

DON CHERRY
One was stopped at the border.

RON MACLEAN
I don't get it.

DON CHERRY
Sometimes I think my best work is wasted on you.

RON MACLEAN
So tell me how that relates to the Afghan prisoner thing.

DON CHERRY
Because it's a lot of hot air. First, the government drags Frank Iacobucci through this like some kind of Mr. Clean, hoping he'll sweep the whole thing under the "national security" rug. Then, when Derek Lee and his buddies proceed with their motions anyway, the government drops two and a half thousand pages on the Committee.

RON MACLEAN
I hear with quite a few redactions...

DON CHERRY
Yeah, well it's gonna take a while to figure out what's in there, but it doesn't change Speaker Milliken's predicament.

RON MACLEAN
So why is the government bothering with all this?

DON CHERRY
Playing for time! Trying to run out the clock. We know how well that worked in the men's Gold Medal final.

RON MACLEAN
I don't think that's exactly fair. I wouldn't describe the third period as trying to run out the clock.

DON CHERRY
I know, I know. All I'm saying is, stalling isn't going to give the government the game. In my opinion, they're already dead toast in the water.

RON MACLEAN
...an interesting image...

DON CHERRY
But I wanna say, I'm doing my part as a citizen and loyal CBC staffer.

RON MACLEAN
I've never heard you use that kind of language.

DON CHERRY
Yeah, well, the CBC put out a call for citizens to help read through the 2500 pages of documents, and I'm gonna step up.

RON MACLEAN
You've been trolling through 2500 redacted pages of government documents?!

DON CHERRY
You say it like there's something wrong with it.

RON MACLEAN
I'm just astounded.

DON CHERRY
Like I say, some of my best work...

RON MACLEAN
So, tell us, what have you discovered?

DON CHERRY
OK, I'm only doing a small part of this, but that's what the CBC wanted, ordinary citizens doing a part of the reading to see what's there...

RON MACLEAN
So?

DON CHERRY
OK, so, I've got a couple examples you guys can bring up on the screen. Here's two pages from the "Blanchette" document dump.

RON MACLEAN
They look surprisingly similar.

DON CHERRY
Yeah well, there's nuances that can be found if you're willing to spend the time.

RON MACLEAN
"NUANCES?"

DON CHERRY
It's French for "clouds".

RON MACLEAN
There's something not quite right about that.

DON CHERRY
Like I said, my best work....

RON MACLEAN
So tell the viewers what you're talking about.



DON CHERRY
So what you're seeing here in this first one I'd say, is at some point in 2007, H Company from the Second Battalion, the Royal Canadian Regiment, takes a prisoner who is handed off to the Military Police in the field, who then transfer him to the "holding facility" at Kandahar Airfield.

RON MACLEAN
What's wrong....?

DON CHERRY
Nothing. Lemme finish...

RON MACLEAN
OK...

DON CHERRY
After which a Detainee Review Panel decides there's no reason to hold the prisoner, and sends him home in a taxi.

RON MACLEAN
Not exactly a smoking gun, Don.

DON CHERRY
It all depends what you're looking for. In a way, I agree with you. What we have here, apart from names and specific dates, is evidence that after taking a prisoner, who was not harmed, a Review Panel was convened at Kandahar Airfield, determined that the prisoner should not be held, and released him after arranging a taxi home.

RON MACLEAN
Yeah, so....?



DON CHERRY
So the next example is, a prisoner is taken that the Commander decides to release, but it takes the brass so long to figure out what to do that they take the guy in for the night and then release him to his employer the next day.

RON MACLEAN
It sounds pretty civilized, Don. I've been in worse bars.

DON CHERRY
Exactly my point! So that's exactly how prisoners should be handled according to the Third Geneva Convention.

RON MACLEAN
Which means...?

DON CHERRY
As of at least 2007, the Canadian Forces in the field understood Geneva 3 to be the law governing their handling of prisoners, not just Common Article 3 that people have been mumbling about in the AFGH Committee, but the whole thing.

RON MACLEAN
You never cease to surprise me...

DON CHERRY
And so, folks, according to Article 12, if Canadian Forces decided a prisoner should be held, a transfer to any Afghan jurisdiction is illegal, because none of them meets the standard of Geneva 3.

RON MACLEAN
But Canada had an agreement with Afghan government that that would be the standard if prisoners were transferred.

DON CHERRY
...and if you believe the Afghan government could honour that agreement, I've got a bridge in Brooklyn that's an unbeatable real estate opportunity. Here's Article 12....

RON MACLEAN
Which you just happen to have with you...

DON CHERRY
Doesn't everybody? Sorry about the beer stains..., but I'll read it out:

Article 12. Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.

Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.

So the onus is on the Detaining Power - Canada - to know that transferred prisoners would be treated properly.

RON MACLEAN
Don, nobody has a higher opinion of you than I do, but you'd think some famous lawyer would have pointed that out by now. I think I read there was a document already up on the Canadian Forces website explaining all the law.

DON CHERRY
Absolutely! But if you actually look at it, there's a lot of fancy stick-work, a lot of razzle-dazzle, but nobody's crashing the net laying out the truth.

RON MACLEAN
So why would anybody be pussyfooting around the issue?

DON CHERRY
Because all of NATO is on the hook for violations of Article 12 of the Third Geneva Convention, transfers of prisoners into jurisdictions where the Convention can't be applied.

RON MACLEAN
I dunno, Don, seems a little extreme.

DON CHERRY
It's more than a little extreme, but the Bulletin of the Secretary-General of the United Nations of August 12, 1999...

RON MACLEAN
...which you just happen to have with you...

DON CHERRY
There's more to the game of parliamentary democracy than just showing up at the rink. Perparation is a lot of it, so I'll just get in one brief quote from Section 8:

"The United Nations force shall treat with humanity and
respect for their dignity detained members of the armed forces
and other persons who no longer take part in military
operations by reason of detention. Without prejudice to their
legal status, they shall be treated in accordance with the
relevant provisions of the Third Geneva Convention of 1949,
as may be applicable to them mutatis mutandis."

RON MACLEAN
OK, that seems pretty clear, except what does "mutatis mutandis" mean?

DON CHERRY
I was hoping you knew. So we're back to needing a lawyer, this time an international lawyer who knows something about International Humanitarian Law.

RON MACLEAN
OK, so on that no-doubt controversial note, that's it for document trolling here at House of Commons Night in Canada. Next week should be very interesting.

DON CHERRY
How're you going with the constitutional lawyer?

RON MACLEAN
He said he's got a moose at National Defence working on it.

DON CHERRY
A moose?

RON MACLEAN
I'm only saying what he told me.

DON CHERRY
Are you sure this lawyer knows what he's doing?

RON MACLEAN
Well, we could afford him. He went for the Leafs tickets.

DON CHERRY
You know, I think we ended up in this sorry situation because the CBC didn't get the Olympics.

RON MACLEAN
We'll never know.

DND releases anthem to AFGH Committee

The Return of The Man from Niagara Falls

Ottawa, Night.

I had been retained as a constitutional lawyer by Hockey Night In Canada. The Man In Stripes said they couldn’t pay me money, but offered two vouchers for Leafs’ playoff games, including the Stanley Cup final if the team got that far. Something bothered me about the deal, but I didn’t have time for due diligence.

My job was to figure out who investigated cabinet officers, and particularly Attorneys-General, for alleged crimes, in this case, obstruction of justice. There wasn’t much in the way of precedent, fortunately, but Rule 4 of the Law Society of Upper Canada was quite explicit:

Rule 4

"The lawyer has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing where justice can be done. Maintaining dignity, decorum, and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected."

Parliament itself was explicit:

Parliamentary Privilege

"Members of Parliament are not above the law. The right to freedom from interference in the discharge of parliamentary duties does not apply to actions taken by Members outside parliamentary proceedings which could lead to criminal charges. No Member may claim immunity from arrest or imprisonment on such charges."


Nevertheless, I couldn’t see the next step. I was going nowhere and needed help, but I couldn’t discuss this openly without breaching solicitor-client privilege.

I had a source so highly placed and so sensitive that I couldn’t contact him directly. He was familiar with the workings of the Law Society of Upper Canada and major figures in the Canadian underworld. I referred to him only as Deep Frog. If I wanted a meeting with him, I’d move my dead Christmas tree from one side of my balcony to the other. Next day, I’d find a clock with the time of the meeting penciled on the front page of my Globe and Mail. I never knew how he got to my Globe and Mail. If he couldn’t meet me, I’d find a copy of the National Post with no clock on it. I never knew how he didn’t get to my National Post either: I didn’t have a subscription. If I needed an urgent meeting, I’d turn on the lights of the tree from which I had not removed the decorations.

We met in a biker bar outside Gatineau late at night. The atmosphere was so menacing that senior civil servants rarely went there.

“What’s up?” he asked.

I told him my problem.

“Follow the lawyers,” he said, cryptically.

Suddenly, the bar was filled with the howling of a dozen Harleys arriving. When I looked back at my contact, he was gone.

What could he mean? Follow what lawyers? From the Department of Justice? Rob Nicholson, himself? Niagara Falls? Suddenly, it hit me. Where did lawyers go when they were in trouble? Who, outside the government, could investigate government lawyers? I called a crash meeting with Deep Frog.

“I wondered how long it would take you,” he said with some amusement. “But be careful how you approach The Law Society. The government has friends in high places everywhere, and I mean everywhere.”

I had contacts, “paralegals”, who did work for me when I wanted an investigation with no fingerprints. These guys worked freelance after careers in the RCMP, CSIS, the military. They were tough, reliable, and knew how the world worked. I didn’t need them.

What I needed was another kind of paralegal: people I called “moose”. I called them that because they were so clumsy and obvious that no one in their right mind would think they were connected with me, or in fact anyone other than the Loony Left or the Rabid Right. I had a moose in Vancouver, and I knew I could send him on a Mission from God, even if it meant destruction, but the collision would, like the Large Hadron Collider, yield particles of interest.

To be continued....

In memory of John Sims

The Man From Niagara Falls

I was seated alone in the bar of the Chateau Laurier, nursing my third Screech on the rocks. I was recovering from conversation with Ed, a guy from Alberta, who had wanted advice on breaking up confederation with the help of Quebec. I wasn't sure how that would go down with the Law Society of Upper Canada, but I was pretty sure - despite his enticements - that I hadn't become a constitutional lawyer to trash the constitution. He left, regretfully.

I was moodily conemplating the body of a seal, thrown carelessly into a corner by the bartender, when approached by a nondescript man remarkable only in that he was wearing a helmet, skates, and an NHL Referee's Uniform.

"I heard you're the go-to guy for consitutional law in Canada," he said. "Can I buy you a drink?"

"That all depends," I replied. "Tell me why you're asking."

"OK," he said, " I'll lay my cards on the table."

He spread out a fresh deck on the bar, still unfortunately sticky with clotting seal blood.

"I represent an important client, and the assignment is one requiring extreme delicacy, fast footwork, and a comprehensive knowledge of Canadian consitutional law." Two out of three ain't bad.

"First thing is, I need to know the client."

"Is this conversation protected by solicitor-client privilege?"

"Of course."

"OK, he said, "it's the CBC."

"And the assignment?"

"The client wishes to get close to the Attorney-General and collect sensitive information with regard to possible obstruction of justice at proceedings before the Canadian Military Complaints Complaints Commission, and specifically with regard to the possible misuse of Section 38.01 and 38.02 of the Canada Evidence Act."

I finished my drink, and ordered a fourth, fifth, and sixth refill.

"Where are you from: the fifth estate; Ideas?"

"They won't touch it."

"What makes you think I will?"

"I'm from Hockey Night in Canada."

I was stunned by the implications.

"We have a source at Rideau Hall who gave us your name," continued the Man In Stripes, persuasively. "You come highly recommended."

"The Governor General's Horse Guards?" I asked.

"I can't reveal my sources," said the striped figure emphatically. "Let's just say we got it from the horse's mouth."

Horses, seals. I was starting to feel less like a lawyer and more like a vet.

"This isn't an episode of All Creatures Great and Small" I snapped. "I need to know exactly what the job is."

"Is this conversation protected by solicitor-client privilege?"

"Of course."

"OK, we need you to get close to the Attorney-General on the Afghan prisoner file, and without him knowing, find out what he knew and when he knew it, what he didn't know, and when he didn't know it, and when he didn't know what he knew, even if he didn't know it. We also want to know who would investigate the Attorney-General for alleged obstruction of justice."

My head ached. "Rumsfeld's got a lot to answer for," I said wearily.

"You know Don?"

"Rumsfeld or Cherry?"

"Either."

"Neither."

A silence settled over us like ink from an octopus. I was back to animals, admittedly invertebrates.

"OK," I said finally, "tell me more about Nicholson. I haven't said yes and I haven't said no, but I need to know more about him. I can't approach him directly, obviously. Where's he from?"

"Niagara Falls."

A strange sensation came over me. I turned to the Man in Stripes and grasped him by the throat. Niagara Falls! Slowly, I turned, closer I came, step by step, inch by inch....

He knocked me to the floor with his elbow. "Pull yourself together!" he hissed. "This isn't Saturday night at a Flyers' game."

"Philadelphia?" I inquired from the floor.

"No, Niagara Falls."

Niagara Falls! Slowly, I turned, closer I came, step by step, inch by inch... I found myself on the floor again.

"Look," he said, "I'm offering you work. Do you want the job or not?"

"I thought the Flyers moved to Michigan."

"OK, have it your way. This isn't Saturday night in Saginaw."

"Why should I trust you? Maybe you're from the Colbert Report."

"What's that?" he asked convincingly.

I had to admit, I was intrigued. Who would investigate the Attorney-General for alleged obstruction of justice? I had to take the job.

...to be continued.