Monday, March 1, 2010

Dueling Legal Opinions: Canadian Parliament and Executive Branch in a Showdown

I am a big fan of Kady O'Malley. Formerly of Maclean's and now over at CBC, the tireless Canadian Parliamentary liveblogger often seems more like a one person parliamentary-watch-NGO than a political reporter-- shedding light on obscure proceedings of parliamentary committees, issuing information requests on numerous issues, and rendering comprehensible and publicly accessible documents essential to understanding current political or public policy issues or disputes.

Carrying on that important work, a day ago she posted on her CBC blog a number of documents related to the current standoff between Parliament and the Harper Government on whether documents relating to the Afghan detainee controversy must be disclosed to the House of Commons on its demand (made by House motion).

Among the documents posted are dueling legal opinions between Carolyn Kobernick a high ranking Justice Department official, House Law Clerk Rob Walsh, and Liberal MP Derek Lee.  I have met Kobernick, and can say that she is widely respected among DOJ lawyers.  I do not know Rob Walsh, but the work of his that I have seen, is first rate. And Derek Lee, though the politico in the mix, is no slouch on Canadian constitutional and parliamentary matters, having written two books that touch on both.

Take a look. It's a fascinating read on a momentously important and complex issue.  Anyone who says this is an easy case, is lying or doesn't understand the matters involved.

There is one point that I did want to make.  I cannot see Kobernick intending her letter to indirectly intimidate parliamentary committee witnesses, a very serious accusation that Walsh mentions briefly in his letter, and Lee echoes in his draft House motion. Of course, the background here is the politics of the matter; the Harper Government has punted this ugly football to Justice, and I think it is sad that a Public Law Sector ADM, rather than the Justice Minister himself, has been saddled with the responsibility to set out the Government's position.  

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