- Canada - Let No Con (Harper) Tear Asunder

Excerpt Posted: 3/7/2010 12:19:20 PM The Globe and Mail
Retired judge asked to review documents in detainee affair, Gloria Galloway, Mar. 06, 2010
http://www.theglobeandmail.com/news/politics/retired-judge-asked-to-review-documents-in-detainee-affair/article1490854/

Federal government documents on Afghan detainees suggest that Canadian officials intended some prisoners to be tortured in order to gather intelligence, according to a legal expert.

If the allegation is true, such actions would constitute a war crime, said University of Ottawa law professor Amir Attaran, who has been digging deep into the issue and told CBC News he has seen uncensored versions of government documents released last year.

[University of Ottawa law professor Amir Attaran]
"If these documents were released [in full], what they will show is that Canada partnered deliberately with the torturers in Afghanistan for the interrogation of detainees," he said.

"There would be a question of rendition and a question of war crimes on the part of certain Canadian officials. . . . "
(CBC, News, 5 Mar.'10)

In light of the statements by University of Ottawa law professor Amir Attaran that "If these documents were released [in full], what they will show is that Canada partnered deliberately with the torturers in Afghanistan for the interrogation of detainees . . . There would be a question of rendition and a question of war crimes on the part of certain Canadian officials. . . . "

Parliament must demand and obtain these documents in full and pristine order and immediately.

This is a shocking development in the Afghan Detainee Transfer and ensuing cover-up shows the importance of this.

Given the statements by Prof. Attaran, the possibility that the documents have been tampered with (or, might I phrase it 're-calibrated and redacted') is now something that must be considered. This I think is only something that could be investigated at a formal Judicial Inquiry and it would certainly explain why Harper and the Con's are doing everything they can to prevent this.

I have the greatest respect for Mr. Justice Iacobucci and any current or former judge on the Supreme Court of Canada.

But, why in the world Mr. Justice Iacobucci would want to get mixed up in this sorted affair is beyond my understanding.

First, this is a power struggle between Harper and Parliament. By agreeing Mr. Justice Iacobucci is, whether directly or indirectly, putting the Judiciary in the middle, thus blurring the separation of the Judicial Branch from the Executive and Legislative Branches. The only result can be a Judiciary tainted with the allegations of bias, no matter how he concludes.

We have all seen how Harper, MacKay, and all the Con's viciously attack anyone that dares to voice an opinion not totally in agreement with their own. So, if Mr. Justice Iacobucci comes down on the side of Parliament, we can expect no less and this, whether anyone likes it or not, will impact on the dignity of the Supreme Court of Canada, as an institution.

In fact, given, Harper and the Con's expressed contempt for our judiciary and in particular Supreme Court and desire to bring it under their thumb, they may take that as an excuse to do just that.

If Mr. Justice Iacobucci comes down on the side of Harper, it will not solve anything since it is non-binding and, in fact put Parliament in a position to insist even harder or concede that Parliament is there at the whim of Harper.

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It seems to me that the Executive has these power by tradition as opposed to law - i.e. there not being any explicit provisions in our Constitution or Legislation regarding these powers. Tradition refers both to the ability to use the power and the manor in which it is used. Harper hides behind Tradition to wield these powers but scoffs at Parliament when he breaks with Tradition in how he wields them. A prime example of this, aside from refusing to disclose the Afghan Detainee Transfer documents was, of course, Prorogation No.1, where Harper used Prorogation to avoid a non-Confidence vote. Also, to illustrate even further he spend over 2 hours discussing this with the Governor General. Given the amount of time spent, and given the importance to Canada and it Democratic Institutions to the very fact of who runs this country, and given its precedent setting nature (based on Tradition) it is vitally important that we Canadian know exactly what was said during this meeting. Harper's response 'it is traditional that the contents of the meeting not be made public' [sic].

The Supremacy of Parliament means precisely that all powers flows from Parliament and is exercised at the Will of Parliament, including those exercised through tradition. This has nothing to do with the Judiciary. Security measures set out in legislation do not apply to Parliament. The Prime Minister is subjacent to Parliament, if Parliament is restricted in access to these documents, how can it possibly be that the Prime Minister or his government is not. Or another way of saying it is if the Prime Minister and his government have unrestricted access how is it possible that Parliament does not.

With a majority government there is no issue.

And with a minority government this is normally not an issue for a number of reasons.

First, and this is very important, normally, and in fact always in our History as far as I am aware, except with Harper and his Con's, the Prime Minister has the best interest of Canada at heart. Whereas Harper has dedicated much his public life to tearing Canada as a nation asunder.

Also, the Prime Minister governs with the Confidence of Parliament, not simply de jure (no non-confidence vote) but also de facto. Since, de facto non-confidence normally very soon becomes de jure non-confidence normally this distinction does not arise.

In the current situation the only reason there is no non-confidence vote is that Canadians do not want an election. This has nothing to do with confidence but everything to do with the current political constellation consisting of extreme polarization in 4 directions, with Harper and the Con's die-hard supporters, whether Harper and the Con's are right (morally that is) or wrong, whether it's for the good of Canada as a nation or not, amounting to approx 33%. In other words, the best that could happen is another minority Harper government and the worst, for Canada that is, Harper somehow manages to get a majority (say a backlash by Canadians for the Opposition voting non-confidence and forcing another election).

Simply put Harper does not have the de facto confidence of Parliament.

This bifurcation is especially coming through after this last Throne speech and Budget (to the point even of Ignatieff in essence saying exactly this - vis.: he does not support the Budget or Throne Speech but he will not force non-confidence through a vote of Confidence because the Canadian people sent him the message in no uncertain terms last Fall that they do not want an election), and, of course, with the refusal by Harper to produce the Afghan Detainee Transfer documents.

One can simply not say that, in fact, Harper and the Con's have the confidence of Parliament, whether there is a Non-Confidence Vote or not.

In the context of power struggle. Parliament is in a moment of weakness due to this polarization. Harper knows this and is taking advantage of it to concentrate unimpeded power in his hands. For Parliament not to assert its authority would mean that Parliament would become impotent, marginalized. Harper's power would become supreme and uncontrolled.

This is not a theoretic consideration. These types of polarizations have occurred in many societies and sometimes simply cannot be resolved, except perhaps revolution or civil war, in which case Harper will have achieved his goal of tearing Canada asunder.
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Just as important, and especially with what University of Ottawa law professor Amir Attaran has just come out with, it is now clear this can only be a delaying tactic by Harper and the Con's. By agreeing to take on the review, Mr. Justice Iacobucci, with all due respect, is dragging himself into this.

Also, whether evidence has been tampered with is something that really a full investigation and review by a judge and experienced counsel with the full subpoena powers of a Judical Inquiry can get to the bottom of.

Suppose Iacobucci makes not mention of the documents referred to by Prof. Attaran. Does that mean Attaran is lying, the documents have been destroyed, Harper is justified in hiding them?

We should all demand the truth to this matter.

Lloyd MacILquham cicblog.com/comments.html