‘Irreparable harm will occur’ if Doug Ford testifies at inquiry, Ford’s lawyers say

TORONTO — Doug Ford’s government is arguing “irreparable harm will occur” if a summons for the Ontario premier to testify at the Emergencies Act inquiry is not quashed, court documents show. 

In a judicial review application filed with Federal Court on Tuesday, Ontario’s Attorney General cited parliamentary privilege as the reason Ford and then-solicitor general Sylvia Jones cannot testify at the hearing taking place in Ottawa.

The Public Order Emergency Commission summoned Ford and Jones on Monday to testify on Nov. 10, the court application said.

“Irreparable harm will occur if a stay is not granted,” the application said. 

“The constitutional privilege, which the Supreme Court has confirmed is of central importance to the Canadian legal system as a whole, will be breached and the application will become moot.”

The inquiry is examining the federal government’s use of the Emergencies Act to end the so-called Freedom Convoy protests in Ottawa and Windsor, Ont., last winter.

The judicial review application, which is set to be heard Nov. 1, argued the inquiry summonses “purport to breach parliamentary privilege by attempting to compel testimony” from Ford and Jones, who is now the province’s health minister.

“Parliamentary privilege prevents members of the Ontario Legislative Assembly from being compelled to testify in any proceeding while the Legislature is in session and for 40 days before and after each session,” the application said. “This includes periods where the House is adjourned.”

An affidavit filed with the judicial review application shows the inquiry’s lawyer sought on Oct. 18 to have Ford and Jones appear before the commission to testify. 

The commission wants to know why the province declined an invitation to be part of a “tripartite” meeting with the City of Ottawa and the federal government on how to solve the weeks-long occupation by the Freedom Convoy. 

“The evidence so far is that Premier Ford told Mayor Watson the table was waste of time. Why?” commission lawyer Gabriel Poliquin wrote in an email to Darrell Kloeze, a Crown attorney with the province. 

“The other levels of government don’t seem to think so. What is Ontario’s point of view?”

Kloeze wrote back he’d seek instruction on how to proceed, but warned Poliquin that Ford and Jones could not be compelled to testify due to parliamentary privilege. A few days later Kloeze declined the request for Ford and Jones to testify voluntarily.

“We continue to be of the view that their evidence is not necessary to this commission, as it is mandated to inquire into the necessity of the federal declaration of emergency,” the Crown attorney wrote.

The court application also contains emails between the commission and the province’s lawyers that show the inquiry wanted to hear from Ford and Jones dating as far back as Sept. 19.

On Oct. 17, Ford told reporters he was not asked to testify at the inquiry.

Calls for Ford to testify at the inquiry grew stronger earlier Tuesday when the premier did now show up to question period as the legislature resumed sitting for the first time in six weeks.

New Democrat MPP Joel Harden, who represents an Ottawa riding the protests descended upon last winter, said the premier must testify at the inquiry.

“I’m not persuaded with the premier saying, ‘It’s not my problem.’ It is your problem, you’re the premier of the province,” Harden said.

Green Party Leader Mike Schreiner said Ford owes it to Ontarians to appear before the inquiry and he should follow the lead of federal politicians who are waiving confidentiality to testify at the proceeding.

Government House Leader Paul Calandra said the premier was too busy to show up for question period on Tuesday. Jones was also not at question period. 

Documents filed with the inquiry show that when City of Ottawa officials asked the province for resources to help end the protests, the province directed them to deal with the Ontario Provincial Police and that Jones saw it as a law enforcement issue.

Calandra reiterated, both in question period and to reporters afterwards, that the province believes the inquiry is a policing matter and not a political one.

“This is a federal inquiry into the federal government’s use of the Emergency Act,” he said, adding that two senior provincial bureaucrats will testify.

Top officials with the OPP have testified, and the province has provided hundreds of pages of documents to the inquiry.

Ian Stedman, a public policy professor with York University, said parliamentary privilege is an old privilege that provides immunity to parliamentarians from being scrutinized by court.

Court, by way of a judicial review, will determine if a parliamentary privilege exists within a set of facts and context specific to this case, Stedman said.

“If the court recognizes that there’s a privilege within the context that you’re asserting, it’s not allowed to go and interrogate the extent or depth of breadth of that privilege,” he said.

He said the province would have to make the case that publicly disclosing details of how it dealt with the unfolding crisis would get in the way of the proper functioning of parliament. 

There is another type parliamentary privilege the province could argue in court: collective privilege.

“It’s the collective privilege of the house to basically protect its members from being compelled to testify before court or anything as long as the house is sitting,” Stedman said. 

Steven Chaplin, an adjunct professor with the University of Ottawa who worked for more than a decade as the senior legal counsel for the House of Commons, said he thinks invoking parliamentary privilege will work for Ford.

“They have that privilege and the courts should basically quash the summons,” he said.

In 2005, the Supreme Court of Canada affirmed that privilege, which applies to courts and to inquiries, Chaplin said.

Prime Minister Justin Trudeau and Windsor Mayor Drew Dilkens are set to testify at the inquiry. 

This report by The Canadian Press was first published Oct. 25, 2022.

Liam Casey, The Canadian Press