Tory bid for CBC documents likely unlawful, lawyer says

Parliament's top lawyer says Conservative MPs could be violating the Constitution if they force the CBC to turn over documents it says are protected under privacy law.

Parliamentary law clerk and counsel Rob Walsh says the move by Tory members of the access-to-information committee could end up in the courts, where he says their attempt is likely to fail.

Walsh says the bid to peek at the CBC's internal files clearly conflicts with a case now before the Federal Court of Appeal which pits the CBC against the information commissioner.

Writing in response to formal questions from the NDP, Walsh says the committee might consider the documents behind closed doors, but even then he fears a leak could compromise CBC's privacy rights and undermine the ongoing legal case.

He says nothing short of the courts' credibility and independence is at stake.

The matter, he warns, could well end up before a judge, where it is not likely to turn out well for those seeking the release.

"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."

The motion by Tory Dean Del Mastro would involve records the CBC has provided to Quebecor media outlets and others, as well as records it has held back.

The public broadcaster redacted or withheld certain documents citing its exemption under the Access to Information Act for journalistic, creative and programming activity.

Also at play is the Broadcasting Act, which enshrines the CBC's independence by barring cabinet ministers from accessing its journalistic, creative and programming information.

'In my view, such initiatives are not within the constitutional functions of the House.' Parliamentary lawyer Rob Walsh

The committee has been studying the CBC's legal battle with the information commissioner over who gets to review the documents it has decided to block.

NDP members on the committee immediately balked at Del Mastro's Oct. 27 motion. Opposition MPs boycotted the vote and New Democrat Charlie Angus asked Walsh for a legal opinion.

The CBC has argued that only a judge should be able to take a look at the records, and Walsh clearly agrees.

"In my view, such initiatives are not within the constitutional functions of the House or, by extension, its committees and the use of the House's powers to demand the production of documents for such purposes could be found to be invalid and unenforceable at law."

The committee should hold off any review of the CBC files until the court proceedings have ended, he says, even if it wanted to look at them behind closed doors.

"Past experience has shown that it is difficult to ensure the confidentiality of in camera committee deliberations as well as the confidentiality of documents received for in camera purposes," he says.

'Shot across the bow'

"It would seem prudent to await the conclusion of the court proceedings as this would show respect for the independence of the judicial function and dispense with the need to ensure confidentiality."

Angus said Sunday Parliament's legal counsel "has fired a shot across the bow of Stephen Harper."

"This is a government that has waged almost full-out war on the work of committees," Angus said in an interview. "The question is: what is Mr. Harper going to do? Is he going to allow this to continue and attempt to actually undermine the independence of the court?

"The government is in a bit of a bind. They've overstretched; they've allowed Dean to get off the chain here."

Del Mastro has said there is no indication any of the access requests dealt with journalistic activities.

For example, one Quebecor request was about CBC's fleet of vehicles. Another by the Friends of Canadian Broadcasting dealt with contracts handed to a U.S. consultant.

Committee struck to view files

The Commons was seized with some of the same issues of parliamentary privilege last year, when the opposition demanded the government produce top-secret documents on the Afghan mission and detainees.

The Speaker of the House ultimately ruled Parliament has an inviolable right to demand documents, and ordered the Commons to find a resolution. A special committee of MPs was struck to view the files.

But the detainee file touched on national security, not constitutional protections such as press freedom. Parliament has not had to grapple with parliamentary privilege and Charter rights very often, nor have the courts.

The Supreme Court of Canada ruled in 2005 that parliamentary privilege wasn't limitless, saying Parliament wasn't exempt from an employment discrimination case.

Wrote Walsh: "It is a well established parliamentary principle that the House of Commons and its committees do not make legal determinations which are the responsibility of the courts."