Doug Ford’s reasons for not testifying at Emergencies Act inquiry might not be good enough, judge suggests

Premier Doug Ford and former solicitor general Sylvia Jones will be in legal limbo for as long as a week while a judge determines whether they can be forced to testify at the federal Emergencies Act inquiry.

In a four-hour hearing Tuesday in Ottawa, lawyers for Ford and Jones argued that compelling them to appear would do “irreparable harm” to the independence of legislatures.

But Federal Court Justice Simon Fothergill — who promised a decision by next Tuesday on whether to grant their request for a stay of their summonses to testify two days later — suggested their claim of “parliamentary privilege” could be trumped by the public good.

Ford and Jones are fighting summonses to appear at the public inquiry probing the federal law used to end last winter’s so-called “Freedom Convoy” protest that blockaded downtown Ottawa for three weeks.

“And so the question before me will be: is the freedom from summons equally necessary when summons emanates from a commission of inquiry, which has a high public purpose?” Fothergill told the court.

“I do need to be convinced the province is going to win this argument in order to grant a stay,” the judge added.

“The premier and deputy premier are valuable as witnesses for their observations and the facts they can attest to.”

The ongoing inquiry, being overseen by Ontario Appeal Court Justice Paul Rouleau, is to wrap up Nov. 25 with his full report due Feb. 6.

Fothergill challenged the assertion from Ontario government lawyers that the summonses “were issued without jurisdiction, pursuant to an error of law, and must be quashed.”

“I think the summonses are valid enough,” said the judge, who frequently interjected with queries to lawyers for the province and the commission on points of law.

Ontario government lawyer Darrell Kloeze said parliamentary privilege — intended to keep legislators free for their primary duties — applies regardless of the fact that the legislature is not slated to sit next week.

“The members can be called to act … at any time.”

Co-counsel Susan Keenan said irreparable harm could come by violating privilege in regard to the “separation of powers” from the federal government and raised the possibility that Ford and Jones could be fined or found in contempt for refusing to testify by invoking their privilege.

“This is the hill they climb.”

Commission lawyer Doug Mitchell called the summonses “a gentle nudge” to get Ford and Jones, now the deputy premier and health minister, to voluntarily appear before a commission that does not have the power to make legal findings, unlike a court.

“All you have to do is tell the truth,” Mitchell said. “I don’t think it constitutes irreparable harm to make a choice … whatever the political consequences will be, the political consequences will be.”

The judge later noted “the risk of being criticized in an inquiry is an essential part of its function.”

Bijon Roy, lawyer for the Ottawa Coalition of Residents, opposed a stay for Ford and Jones, saying irreparable harm “must be much more concrete than the speculative level” and noting the problem with the blockade going on so long is that “nobody showed up” — a reference to a slow response from governments.

That’s why it’s important for Ford and Jones to testify, Roy said.

“The more information, the better … they are crucial.”

At Queen’s Park, Interim NDP Leader Peter Tabuns said the government’s lawyers are “grasping at straws” by claiming testifying would undermine the legislature.

“It’s a useless argument that doesn’t make any sense. Frankly, he’s the leader of the province. He’s responsible for explaining his actions,” said Tabuns.

“We have a right in democracy to question our leaders. He’s taking completely the wrong approach,” he said.

Interim Liberal Leader John Fraser said “it sounds like a lame excuse” given that previous premiers have waived privilege.

“Premier (Mike) Harris, premier (Dalton) McGuinty, premier (Kathleen) Wynne all did essentially the same thing. They were called to testify, they testified,” said Fraser, referring to past inquiries, legislative committee hearings, and court cases.

“I don’t remember any irreparable harm,” he said.

Green Leader Mike Schreiner said he’s “even more concerned now about the decisions that premier made if somehow they’ll do irreparable harm to the province of Ontario.”

“He needs to do his job and step up and be honest with the people of the province on the actions and the decisions he made around the Emergencies Act,” said Schreiner.

“Back in June, the premier said he would testify and now he’s saying he’s not going to testify. What’s changed between then and now? The premier needs to answer for that as well,” he said.

Robert Benzie is the Star’s Queen’s Park bureau chief and a reporter covering Ontario politics. Follow him on Twitter: @robertbenzie

SHARE:

Powered by WPeMatico