Saturday, March 13, 2010

Nicholson's Terms of Reference finally released

Updated (4:30 p.m.) below. And (5:00 p.m.). Why not?

"Backgrounder: Terms of Reference." In full (with some parts emphasized and some comments added in hard brackets):
Whereas the House of Commons has adopted a motion, on December 10, 2009, ordering the production of Government documents related to the transfer of Afghan detainees from the Canadian Forces to Afghan authorities, which contain information the disclosure of which would be injurious to national defence, international relations or national security if publicly released;

Whereas the involvement of Canada in Afghanistan commenced in 2001, it is important, in order to understand the transfer arrangements post-2005, that Parliament have available to it relevant Government documents related to the transfer of Afghan detainees from the period 2001 to 2005;

Whereas the security of the nation and the conduct of international relations are fundamental responsibilities of the Government of Canada and there are matters which governments must keep confidential in order that the public interest may be best served, even in the freest and most open of societies;

Whereas the Government acknowledges that it is appropriate that its decisions on the disclosure of information in these circumstances be reviewed in an independent manner to ensure that parliamentarians have as full and complete access to Government information as is necessary to perform the function of holding the Government to account so long as injury to Canada’s national defence, international relations or national security may be minimized;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Prime Minister, pursuant to paragraph 127.1(1)(c) of the Public Service Employment Act, hereby:

(a) appoints to the position of special adviser to the Minister of Justice and Attorney General of Canada, the Honourable Frank Iacobucci of Toronto, Ontario, as Independent Adviser, to hold office during pleasure and to advise the Minister of Justice and Attorney General of Canada as early as possible as to the period of time necessary to perform the review on the understanding that the reports set out below are to be completed expeditiously; [up to Iacobucci to set time frame]
(b) specifies the duty of the Independent Adviser is to conduct an independent confidential review of the information that is proposed to be withheld from release by the Government in the following documents related to the transfer of Afghan detainees from the Canadian Forces:
all documents referred to in the affidavit of Richard Colvin, dated October 5, 2009;
all documents within the Department of Foreign Affairs written in response to the documents referred to in the affidavit of Richard Colvin, dated October 5, 2009;
all memoranda for information or memoranda for decision sent to the Minister of Foreign Affairs concerning detainees from December 18, 2005 to the present;
all documents produced pursuant to all orders of the Federal Court in Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada;
all documents produced to the Military Police Complaints Commission in the Afghanistan Public Interest Hearings;
all annual human rights reports by the Department of Foreign Affairs on Afghanistan;
all documents referred to by the Chief of the Defence Staff in his December 9, 2009 press conference; and
all other relevant documents, including those from the period 2001 to 2005
[Note: the latter sentence is the only addition to the December 10, 2009 Order by the House of Commons, as far as I can see. The intent is obvious, dilute the focus beyond the Harper government's tenure, if possible; Liberals have not objected to this anyway but it's clear what the Harper government intends.]
(c) specifies that the Independent Adviser is to submit to the Minister of Justice and Attorney General of Canada a report, which shall: [report to Nicholson]
(i) make recommendations as to what information would be injurious to Canada’s international relations, national defence or national security (“injurious information”) if it were disclosed; [takes scrutinizing power away from Committee]
(ii) make recommendations as to whether any injurious information or a summary of it should be disclosed on the basis that the public interest in disclosure, including for the purpose of providing parliamentarians with Government information necessary to hold the Government to account on the matter of the transfer of Afghan detainees, outweighs the public interest in non-disclosure for the purpose of preventing injury to Canada’s international relations, national defence or national security, after considering the form of and conditions to disclosure that are most likely to limit any injury to international relations, national defence or national security; and [may be questions about this test that is being injected, whether it is the proper one or not, presumably parliamentarians can make such decisions too and they may or may not accept such constraints]
(iii) advise as to whether any document or information is subject to solicitor-client privilege or otherwise ought not to be disclosed for other reasons of public policy;
(d) specifies that the Independent Adviser will submit a summary report to the Minister of Justice and Attorney General of Canada, in both official languages, which will include a description of his methodology and general findings and which will be made available to the public by the Minister; [a summary report to be made public but not the initial report above]
(e) authorizes the Independent Adviser to adopt procedures for the comprehensive and proper conduct of the independent review, including reviewing relevant records and documents and consulting as appropriate;
(f) fixes the remuneration of the Independent Adviser as set out in the attached schedule, which per hour rate is within the range ($500 - $650); and
(g) authorizes the payment, in accordance with Treasury Board policies, of the following expenses incurred in the course of his duties:
(i) travel and living expenses while in travel status in Canada while away from his normal place of residence in accordance with the Treasury Board Travel Directive and Special Travel Authorities;
(ii) expert staff, as required; and
(iii) any other reasonable expenses as necessary to conduct the independent review.
-30-

March 2010
Just your average Saturday afternoon release.

Update (4:30 p.m.): Here is what Derek Lee said in the House of Commons when Nicholson first announced that Iacobucci would be appointed and terms of reference would be forthcoming. Does the above meet these requirements, albeit initial, on the process that was proposed at that point?
There are two or three things missing and I think the House should be aware of them. I realize we are not in a debate, but I want to point out to the minister and the government that at no point in his remarks today, as far as I could tell, has the minister acknowledged the power of the House to subpoena these documents, to send for persons, papers, and records. At no point did the minister acknowledge that.

Second, in asking a third party to do the government's work, no one could take objection to that, but I would have thought the government would already have people capable of determining which documents needed protection before or after a parliamentary procedure.

The government has not asked Parliament to do this. The government has not asked Parliament to ask Mr. Iacobucci to do this work. There is a very important element missing in this. I invite the government to come forward with something that has a bit more permanence and is more parliamentary.

From my point of view, the minister's statement this morning does not address the fundamental problem of the government having failed totally to acknowledge the power of the House and its committees. If the third party doing this administrative review of the documents that are in need of protection is not informed of this, and it is not made part of his mandate, members will end up having the same problem during and after the exercise.

I invite the minister even now to rise and acknowledge the full, unabridged power of this House to send for persons, papers, and records, the way it has always been for over 300 years.
Update (5:00 p.m.): I don't think this does much to change the dynamic, now that these terms of reference have been released. Terms are probably what was expected, except for the 2001-2005 part which would slow it down, you'd have to think. It's missing the requested parliamentary aspect (Lee), so it could be torpedoed on that basis. But again, it depends on what the opposition parties want to do, whether they can act concertedly, what legal footing they believe they're on, etc.