Speaker cites Afghan detainee matter in court case

he Speaker of the House of Commons points to a decade-old dispute over records about Afghan detainees in arguing a current federal attempt to shield documents about two fired scientists should be tossed out of court.

In a new submission to the Federal Court, Anthony Rota cites the 2010 controversy as a precedent to bolster his argument the recent federal move is a violation of parliamentary privilege.

The Liberal government asked the court in June to affirm a prohibition on disclosure of records concerning dismissal of the scientists from Canada’s highest-security laboratory.

The move came shortly after Rota reprimanded Public Health Agency of Canada head Iain Stewart over his repeated refusal to provide unredacted documents to MPs on the Canada-China relations committee.

Stewart has advised the attorney general in a notice under the Canada Evidence Act that sensitive or potentially injurious information would be revealed should the documents be given to the committee.

After considering the notice, the attorney general filed a court application seeking an order that confirms the documents must remain under wraps.

Rota says the application should be dismissed because the courts lack the jurisdiction to review the exercise of its parliamentary privilege to send for the “persons, papers and records” it deems necessary.

“This constitutionally entrenched power is fundamental to our system of parliamentary democracy, and to Parliament’s critical role in acting as the ‘grand inquest of the nation’ and in holding the executive branch of government to account,” says Rota's notice of motion.

The executive and the judicial branches do not have the jurisdiction to question, overrule, modify, control or review the exercise of this privilege by the House, the filing adds.

The motion for dismissal is scheduled to be heard over two days next month.

In newly filed arguments fleshing out Rota's position, his lawyers say the House's unfettered discretion and authority were affirmed by the 2010 ruling of Peter Milliken, Speaker at the time, concerning documentation about Afghan detainees.

In late 2009, the House Special Committee on the Canadian Mission in Afghanistan requested records about detainees transferred by Canada amid allegations of abuse at the hands of Afghan authorities.

The federal Justice Department objected to the request, noting a need to redact the sensitive records to ensure compliance with the Canada Evidence Act.

Milliken ruled in April 2010 that the committee had a right to order production of the uncensored records. Three months later, a select group of MPs began sifting through some 40,000 documents related to the detainees.

"Speaker Milliken's 2010 ruling is directly relevant to this case," Rota's submission says. The filing contends that the Canada Evidence Act, "as a statute of general application that is silent as to its effect on parliamentary proceedings, can have no effect on an order of the House regarding the production of documents."

Opposition parties have joined forces to demand the documents in hope they will shed light on why scientists Xiangguo Qiu and her husband, Keding Cheng, were escorted out of Winnipeg’s National Microbiology Laboratory in July 2019 and subsequently fired last January.

They also seek documents related to the transfer, overseen by Qiu, of deadly Ebola and Henipah viruses to China’s Wuhan Institute of Virology in March 2019.

Conservative Leader Erin O'Toole is requesting the court's permission to intervene in the proceedings.