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Opposition balks at Tory loophole in detainee records deal

Liberal MP Bob Rae holds blacked-out detainee-related pages released by the government.

Sean Kilpatrick/The Canadian Press

The Harper government is trying to insert a loophole in a deal that's supposed to grant opposition MPs full access to secret records on Afghan detainees - a proposal that could derail negotiations if not resolved.

Opposition parties are fighting the attempted exemption that would let Ottawa withhold some documents on the grounds they are "not necessary or appropriate for the purpose of holding the government to account."

While the disagreement over wording doesn't appear to threaten the overall deal, it arises as a May 31 deadline approaches for a final text of the accord.

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The Conservatives and opposition struck an agreement in principle on access to documents in mid-May, averting a possible election over whether Parliament could demand the records.

Both sides agreed to let a small panel of MPs from all parties full access to detainee records. But the Tories, Liberals, NDP and Bloc Québécois must still flesh out a memorandum of understanding on the matter by the end of this month as pledged.

There is little appetite among parties to trigger a parliamentary showdown or election over the issue but opposition MPs are fuming over the 11th-hour move by the Tories.

"It's part of a pattern of the government on this issue: stonewall and delay and rag the puck," NDP foreign affairs critic Paul Dewar said.

A proposed version of the agreement that the Conservatives submitted to opposition parties Wednesday includes a paragraph allowing Ottawa to keep secret any records on detainees that can be linked to advice it received from government lawyers.

The Tory-authored proposal, obtained by CTV News, asks the other parties to agree that records "subject to solicitor-client privilege" are a class of "information that the Parliament of Canada has long recognized [is]not necessary or appropriate for the purpose of holding the government to account."

This could be a major exemption. The chief reason opposition MPs want to scrutinize detainee records is to determine whether Canada knowingly transferred prisoners to torture at the hands of Afghan jailers. The Geneva Convention makes it a war crime to transfer detainees to those who would abuse them and obliges the detaining power to recover transferred prisoners if they are being maltreated.

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"The key to finding out why Canadian government officials and soldiers acted the way they did will be found in the legal opinions," said Paul Champ, a lawyer for Amnesty International.

"If we don't see how those issues were assessed or weighed - or what kind of advice they were getting about what constitutes the risk of torture - this process is going to be meaningless."

He noted the U.S. government has waived solicitor-client privilege to release memos authored by government lawyers on what constitutes torture.

One senior MP familiar with negotiations said all opposition parties have rejected seven paragraphs of preamble the Tories want to insert in the document deal - a section that includes the proposed exemption.

The Harper government refused to comment. "Meetings with the opposition have shown positive signs and will continue in a spirit of cooperation," said Pamela Stephens, a spokeswoman for Justice Minister Rob Nicholson.

Michel Drapeau, a former Forces colonel and a professor of military law, said the government excessively uses "solicitor client privilege" all the time to prevent the release of documents under access to information law. "I wouldn't say it's abused but it's certainly overused," Mr. Drapeau said.

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About the Author
Parliamentary reporter

Steven Chase has covered federal politics in Ottawa for The Globe since mid-2001, arriving there a few months before 9/11. He previously worked in the paper's Vancouver and Calgary bureaus. Prior to that, he reported on Alberta politics for the Calgary Herald and the Calgary Sun, and on national issues for Alberta Report. More

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