Legal Process

From The Globe and Mail (March 10, 2010)

Opposition efforts to get at the facts about Afghan detainee abuse appear not to have entirely abated, despite former Supreme Court of Canada justice Frank Iacobucci's appointment to advise the government about releasing documents. Prime Minister Stephen Harper's constitutional footwork certainly did not do the trick. Prorogation simply will not erase the stain of Canadians handing over Afghan detainees to face torture, if accusations are true. The break also should not allow him to escape the House's motion calling for uncensored documents relating to the abuse allegations.

Up until the day before the motion in December, the government side claimed that a variety of statutes legally barred it from releasing documents that threatened national security. It was only then that Carolyn Kobernick, assistant deputy minister in the Department of Justice, acknowledged that there was no statutory basis for refusing to deliver unredacted documents.

Instead, Ms. Kobernick claimed that the government, when making decisions regarding disclosure, would be guided by “the values underlying Parliament's intention in these provisions” – namely, “to protect the national security of Canada from harm by the unauthorized disclosure of sensitive information.” So there was no legal bar to the production of unredacted documents, only a discretion guided by values underlying the law.