Monday, November 14, 2011

The Conservatives' strained relationship with the rule of law continues

The parliamentary law clerk has written a strong opinion on the legality of the Conservative push at the ethics committee to compel CBC to provide documents to the committee while the CBC is in the midst of a court dispute over those documents with the information commissioner: "Tory bid for CBC documents likely unlawful, lawyer says." Basically, the advice is that the Dean Del Mastro led effort to force CBC to turn over documents should be halted because the committee would be jeopardizing the independence of the courts. Parliament should respect that independence. It's a foundational aspect of our democratic system, that each branch respects the other branches and doesn't start stepping in and doing what the other does. So, in other words, Del Mastro should not, indeed, be judge, jury and information commissioner in this case. Because he and the Conservatives are seeking to have the committee make a legal determination on the sufficiency of the CBC's response to the information commissioner. Further, if he and his committee confreres decide to pursue the issue, and the matter goes to court, they will likely lose.

There's a remarkable passage in the clerk's letter which should give people a sense of the overreach and what's really at issue here:
That really jumped out. A detached observer of the fight at committee with the CBC might not get what's going on. But how about if the Conservatives demanded your tax return to examine it at committee to see if you're all paid up? People might really get it then.

It's line-crossing in a constitutional sense. And it's intimidatory in a political sense. A committee can seek documents to assist it in the legitimate work it does, legislating, holding the government to account, etc. But not for the making of legal determinations.

And finally, note what the clerk says in conclusion, in terms of big picture considerations:
"I feel that the … principle of the separation of powers … is sufficiently important in constitutional terms that a court might see the merits of the argument and rule against the House," he writes.

"In my view, respect for the constitutional framework of our parliamentary system of government is part of the rule of law which is the over-riding legal principle that makes a democratic system of government such as ours workable and credible."
Over to you, Conservatives...