OTTAWA–Will the Supreme Court of Canada have to step in to sort out the power struggle between the House of Commons and Prime Minister Stephen Harper’s government?

It’s a solution that some parliamentary experts and observers believe is possible after Commons Speaker Peter Milliken issues his historic ruling on whether Parliament or the government have the right to control the documents in the Afghan detainee controversy.

“On this one, I think that’s something the government certainly could do,” said Ned Franks, professor emeritus at Queen’s University and one of the country’s leading parliamentary scholars.

Milliken is expected to announce as early as Thursday his verdict in a serious, five-month-old standoff between the Harper government and the opposition, which forms a majority in the Commons. Milliken’s ruling could have significant implications for how power is exercised in parliamentary democracies – not just in Canada, but beyond.

In December, the three opposition parties banded together and passed a parliamentary order, compelling the government to produce all documents related to Canada’s treatment of detainees captured by Canadian forces in Afghanistan. The order has the force of law, but the government has argued that other laws, protecting national security for instance, weigh against wholesale compliance with the parliamentary dictate.

In many ways, this is a sequel to another constitutional crisis – specifically, the standoff immediately after the 2008 election, when the opposition parties banded together in a coalition that threatened to unseat Harper’s government.

The Liberals and New Democrats put together a coalition-government proposal, with tacit agreement from the Bloc Québecois. But the Conservative government, in a massive public-relations campaign, argued that the coalition was undemocratic and a sop to separatists.

Governor General Michaëlle Jean granted Harper a request to prorogue Parliament, but reportedly made clear, in a two-hour discussion with the Prime Minister, that the government was being granted the stay of execution on condition that it co-operate better with the majority opposition in the Commons.

Now, a little more than a year later, Harper’s refusal to co-operate with this parliamentary order could be viewed as defiance of the governor general’s instructions. In that case, if this dispute lands in front of Jean again, she may have no choice but to dissolve Parliament, recognizing that it has become dysfunctional.

The Supreme Court, however, could represent a compromise of sorts. If Milliken sides with the argument that Parliament prevails over government, the Justice Department may well draft a formal reference to the Supreme Court – in the form of a constitutional, not a political question – about which laws have precedence in the case of a dispute.

In other words, rather than going to the governor general, and almost certainly an election, the problem would head to the Supreme Court, where everyone could buy some time.

It’s not unheard of. Former prime minister Jean Chretien asked the Supreme Court to sort out the rules of secession in the late 1990s and the current, Conservative government is asking the Supreme Court to issue an opinion on whether the federal government has the authority to establish a national securities regulator. The provinces and Liberal senators have also been urging Harper to put his Senate-reform ideas to the Supreme Court.

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Franks said this isn’t an ideal situation in the current standoff. In a perfect world, Parliament wouldn’t defer to the Supreme Court to sort out its own powers. Franks suspects and hopes that Milliken is able to issue a ruling that treads somewhere down the middle, allowing the government and the Commons to sit down and solve this standoff themselves.

“I would far rather see the two sides in Parliament sort this out than have it go to the Supreme Court,” Franks said.

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