Precedent Suggests That Harper May Lose his Bid to Bury Evidence

Try as he might to bury evidence on the Afghan Detainee issue, precedent may stump cover up for Stephen Harper.

So far he has tried every trick in the book to conceal what he knew and when about allegations of torture, which only makes you wonder why he is trying so hard.

The CBC delved into the issue of Parliamentary privilege and has uncovered some very interesting results.

Parliamentary privilege: A SCOC precedent?
December 16, 2009
By Janyce McGregor

Another installment in a series on parliamentary privilege from my colleague Neil Morrison, Network Current Affairs Producer for CBC Radio here in Ottawa:

Let's assume the current standoff between Parliament and the Harper government over those Afghan detainee documents does wind up in court. Unlike Australia's top court, the Supreme Court of Canada has never ruled on Parliament's power to compel the government to produce documents.

But Canada's top court has looked at the question of parliamentary privilege in two recent-ish cases.

The first is from the early 1990s and it involves the CBC. In this case, the Nova Scotia legislature refused to allow video cameras inside the Assembly. No CPAC coming out of Halifax. At least that was the goal.

The CBC and a truckload of others took the Speaker of the Assembly to court over this. They had a reasonably sound case. This was about freedom of expression. The Charter guarantees freedom of expression. This was clearly a violation of that guarantee.

But the CBC lost its case. The Supreme Court said that parliamentary privilege is part of the Constitution, which means the Charter does not apply.

Interesting bit of trivia #1: The judge who wrote the decision for the majority on this case is now the Chief Justice, Beverley McLachlin.

Interesting bit of trivia #2: The lawyer for the Senate of Canada -- and so arguing in favour of parliamentary privilege -- on this case was the current Supreme Court justice, Ian Binnie.

Here's how this case is relevant today.

The Conservative government says it can't comply with Parliament's demands for documents because Section 38 of the Canada Evidence Act is tying their hands. But the Canada Evidence Act is just a law. Compared to the Charter, it's chump change. So here's your chance to help out the good lawyers at the department of justice. If the Charter does not constrain parliamentary privilege, how is it possible for a mere statute to do so? (Bonus points for making your answer intelligible to people without a PhD in Hegel) Second case to come...