Ontario Health Minister Sylvia Jones looks over at Premier Doug Ford as they sit in the Ontario Legislature during Question Period on Nov. 1, as members debate a bill meant to avert a planned strike by 55,000 education workers.Frank Gunn/The Canadian Press
In Federal Court Tuesday morning, Ontario government lawyers argued that Premier Doug Ford and former solicitor-general Sylvia Jones should not be forced to testify at the Public Order Emergency Commission hearings because there would be “irreparable harm” to the rule of law if parliamentary privilege is not upheld.
Parliamentary privilege provides rights and immunities to elected officials that protect them from undue interference and allow them to fulfill their duties when legislatures are sitting. Although Ontario’s legislature is in session, it isn’t meeting the week Mr. Ford and Ms. Jones have been summoned to testify.
Justice Simon Fothergill reserved his decision on a motion to halt the summonses after the nearly four-hour hearing. He said he will endeavour to release his judgment by Nov. 8, two days before Mr. Ford and Ms. Jones have been summoned to testify in Ottawa as part of the inquiry into the use of the Emergencies Act. The commission is looking into the federal government’s use of the act in February to respond to anti-vaccine mandate protests that disrupted streets in downtown Ottawa and blocked the border crossing in Windsor earlier this year. Hearings are scheduled to run until Nov. 25.
Last week, the two politicians were issued summonses to testify after refusing to do so voluntarily. Lawyers representing the commission said questions remain about the rationale for decisions at the political level. These include why the province declined to participate in at least two of three tripartite meetings with the federal government and the City of Ottawa; why the federal government didn’t invoke its state of emergency earlier; and whether “political considerations” came into play in the province’s response to the Windsor border blockade versus the protests in Ottawa.
A day later, the Ontario government filed a judicial review application in court and asked for a stay of the summonses until a decision has been made.
Susan Keenan, a government lawyer representing the two Ontario politicians, told the court Tuesday that there would be a “constitutional conflict” if the separation of powers were diminished and politicians were forced to testify or face penalties, such as fines, or be found in contempt of court.
“Parliamentary privilege is not about who is doing the compelling, it is about who is being compelled,” Ms. Keenan said. “It’s important that the privilege be protected when it is under threat.”
Responding on behalf of Paul Rouleau, the inquiry’s commissioner, legal counsel Doug Mitchell countered that immunity from testifying in front of a commission has never been established by the judicial system, and that the court should favour the admission of evidence in this case. He argued it differs from a civil or criminal court proceeding where there is the ability to make a legal finding.
In written submissions filed with the court, the commission argued there could be gaps in its findings if political leaders can use parliamentary privilege to avoid testifying.
“If accepted, the expansive scope of the privilege invoked by the applicants could seriously undermine public inquiries’ ability to conduct their mandates,” the commission said. “A stay of the summonses would frustrate the commission’s ability to collect relevant evidence in the course of its parliamentary mandate.”
In his remarks, Justice Fothergill said he understands where the commission is coming from in its attempt to get as much information as possible, but noted that immunity from summons is “one of the more established parliamentary privileges.”
“I have some sympathy for the commission here in that it’s seeking to marshal and present relevant evidence,” he said.
The commission also pointed to testimony during the inquiry so far, from officials such as former Ottawa mayor Jim Watson and city manager Steve Kanellakos, that questioned the response of Mr. Ford and the provincial government to the convoy protests. On a phone call with Mr. Watson during the protests, Prime Minister Justin Trudeau accused Mr. Ford of “hiding from his responsibility … for political reasons.” Mr. Ford and his government have been criticized by residents and opposition parties for their response and the length of the protests in both Ottawa and Windsor.
Other politicians, including Mr. Trudeau, have waived parliamentary privilege and agreed to testify. The question as to why the Ontario government doesn’t want to participate wasn’t at the centre of Tuesday’s court hearing, but e-mails from the province’s lawyers to the commission highlight its position that this is a federal inquiry related to a police response and “not a political matter.”
Mr. Ford doubled down on this argument when briefly addressing the summonses in the legislature last week. (The Premier has yet to take questions from reporters on the subject). The government has said that it is co-operating with the inquiry by providing more than 800 documents to the commission, including confidential cabinet information, and that the deputy solicitor-general and a former assistant deputy minister of transportation will be available to testify.
The Premier’s position has changed since June, when he told reporters he would participate in the inquiry if asked.
Ontario Attorney-General Doug Downey refused to answer questions about the case on Tuesday, saying the matter was before the courts.