Ontario’s premier and a top minister have “valuable evidence” to offer the Emergencies Act inquiry, but will not have to testify due to immunity provided to them by parliamentary privilege, a Federal Court judge ruled Monday.
Justice Simon Fothergill said Premier Doug Ford and deputy premier Sylvia Jones can resist a summons issued by the Public Order Emergency Commission by invoking their parliamentary privilege, which is granted to sitting politicians.
“The summonses issued by the Commission to (Ford and Jones) are valid,” Fothergill wrote.
“However, so long as the Ontario Legislative Assembly remains in session, the applicants may resist the summonses by asserting parliamentary privilege and the Commission cannot take steps to enforce their attendance and compel them to give evidence.”
Ontario’s legislature has been in session since early August and remains in session regardless of adjournments.
The Public Order Emergency Commission is examining the federal government’s use of the Emergencies Act to end the so-called Freedom Convoy protests last winter in Ottawa and Windsor, Ont.
Commissioner Paul Rouleau summoned Ford and Jones, the then-solicitor general, to testify at the inquiry because he wanted to know their role in the crisis that left downtown Ottawa occupied for weeks and traffic blocked from entering Canada at the country’s busiest border crossing.
The premier and Jones were set to testify on Thursday. The commission is only hearing testimony until Nov. 25.
Ford’s office declined to comment after the decision came.
At news conference earlier Monday, Ford repeated comments that the inquiry is a federal matter, not a provincial one.
“This is a federal inquiry based on the federal government calling for the Emergencies Act,” he said. “This is a federal issue.”
The commission said in light of its tight timeline, “there are effectively no additional practical legal steps to take that could result in the premier and deputy premier being compelled to testify within the necessary timeframe.”
“The Legislative Assembly is not sitting on the dates on which the premier and deputy premier have been asked to give their evidence,” the commission wrote in a statement.
“It remains open to them not to rely on parliamentary privilege and instead attend so that the Commission may have the benefit of their testimony.”
Last week, Ford and Jones had filed an application for a judicial review and sought a stay of the summons.
They argued the summons should be quashed because they are immune to testifying due to parliamentary privilege, which allows them to focus on their duties at Queen’s Park.
Parliamentary privilege is a part of the Constitution, but has its roots in the English House of Commons. It was designed to protect the House and its members from interference from the King and the House of Lords, Canada’s House of Commons website says. When applied, it provides immunity to parliamentarians from being scrutinized by courts, experts say.
Several federal ministers have waived their parliamentary privilege for the Emergencies Act inquiry, including Prime Minister Justin Trudeau and Attorney General David Lametti, who are set to testify in the coming weeks.
The inquiry commissioner argued Ford and Jones “overstated” the extent of parliamentary privilege.
Ford and Jones argued if the summons to the inquiry was allowed to stand, it would cause “irreparable harm” to the rule of law.
They further argued the summons was issued “without jurisdiction, pursuant to an error of law, and must be quashed.”
The Federal Court judge disagreed.
“To accept this assertion would be to turn parliamentary privilege from a shield into a sword, contrary to parliamentary intent,” Fothergill wrote.
The judge ruled the commissioner had jurisdiction to issue the summons for Ford and Jones.
“The matters in respect of which the premier and minister have been called to testify are within the scope of the commissioner’s mandate, and it appears that both witnesses may have valuable evidence to offer,” Fothergill wrote.
Court heard last week that both Ford and Jones had already invoked their parliamentary privilege.
But the judge said both “had not definitively stated they would claim immunity by invoking parliamentary privilege.” Fothergill said “it remains open to the premier and minister to waive parliamentary privilege and testify” on Thursday.
Jones’s office did not immediately respond to a question about whether she will waive parliamentary privilege or not.
The Ottawa Coalition of Residents and Businesses, which has standing at the inquiry, argued last week that their clients wanted to hear from Ford and Jones about their involvement, or lack thereof, to solve the crises in Ottawa and Windsor.
“The court’s decision places it squarely in the hands of Premier Ford and Minister Jones as to whether or not they will show the Commission – and the people of Ottawa – the courtesy and respect of coming to our city and explaining their role in the troubling events of February 2022,” said coalition lawyer Bijon Roy.
Steven Chaplin, a former senior lawyer for the House of Commons and an adjunct professor at the University of Ottawa, said he wasn’t surprised by the decision, but found it interesting that the judge ruled the summons valid.
“It lets the public know that this is important enough for the commission to decide that these witnesses would be relevant,” he said. “But also that the judge followed the precedents that are out there on parliamentary privilege.”
Michael Kempa, a criminologist with the University of Ottawa, said Ford and Jones “slipped up” by arguing the commissioner’s request was without merit, which opened the door to further comments from the judge.
Those comments were “damaging” to Ford and Jones, he said.
“He concluded that … the premier and former solicitor general do indeed likely have valuable evidence to give to the commission and alluded to the fact that they could indeed waive their privilege to attend the Commission in the public interest – the judge could simply not force them to do so,” Kempa said.
– with files from David Fraser in Ottawa.
This report by The Canadian Press was first published Nov. 7, 2022.
