Published November 7, 2022

Judge rules Doug Ford, Sylvia Jones immune from testifying at Emergencies inquiry

'So long as the Ontario Legislative Assembly remains in session, the applicants may resist the summonses by asserting parliamentary privilege'

By Liam Casey

Ontario's premier and a top minister will not have to testify at the Emergencies Act inquiry in Ottawa due to immunity provided to them by parliamentary privilege, a Federal Court judge ruled Monday.

Justice Simon Fothergill said a summons issued to Premier Doug Ford and deputy premier Sylvia Jones by the Public Order Emergency Commission is valid, but the pair can resist it 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. Both sides and the judge agreed on that point.

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 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. They were set to testify on Thursday.

Ford's office declined to comment after the decision came. 

At news conference earlier Monday, Ford repeated earlier 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."

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 that 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 had argued Ford and Jones "overstated" the extent of parliamentary privilege. 

"There is no blanket privilege to decline to testify; it is only a temporal privilege," the commissioner argued in court documents.

Ford and Jones argued if the summons to the inquiry was allowed to stand, it would cause "irreparable harm" to the rule of law.

The Federal Court judge said the commissioner had jurisdiction to issue the summons for Ford and Jones, which the province argued he did not.

"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.

Both Ford and Jones have already invoked their parliamentary privilege, court heard last week. 

The Ottawa Coalition of Residents and Businesses, which has standing at the inquiry, joined the commissioner in the judicial review case.

They argued last week their clients wanted to hear from Ford and Jones about their involvement, or lack thereof, to solve the crises in Ottawa and Windsor.

"The people of Ottawa felt abandoned during a three-week occupation in February, where their streets became zones of lawlessness," said coalition lawyer Bijon Roy,

"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."

This report by The Canadian Press was first published Nov. 7, 2022.

Banner image: Sylvia Jones, Deputy Premier and Minister of Health shakes hands with Premier Doug Ford as she takes her oath at the swearing-in ceremony at Queen’s Park in Toronto on June 24, 2022. THE CANADIAN PRESS/Nathan Denette

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