Doug Ford, Sylvia Jones don’t have to testify at Emergencies Act inquiry, federal judge rules

Premier Doug Ford and former solicitor general Sylvia Jones do not have to testify at the Emergencies Act inquiry because they enjoy “parliamentary privilege,” a Federal Court judge has ruled.

Justice Simon Fothergill has granted a stay of the public inquiry commission’s summons for Ford and Jones to appear at the hearings into the federal law used to end last winter’s so-called “Freedom Convoy” protest in Ottawa.

That means the premier and the minister will not have to show up Thursday at the inquiry being held in the nation’s capital.

In a 30-page ruling released Monday, Fothergill conceded “the summonses issued” by the commission of inquiry to Ford and Jones are “valid.”

“However, so long as the Ontario Legislative Assembly remains in session, 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,” the judge ruled.

“The parliamentary privilege of testimonial immunity is not limited to safeguarding parliamentarians from vexatious litigation, but extends to civil proceedings generally … as well as criminal, administrative and military matters,” he wrote.

“If a parliamentary privilege is determined to exist, it must be extended to every proceeding. This includes commissions of inquiry.”

Fothergill’s ruling was a rare piece of good news for an embattled premier, who was dealing with labour strife in education.

Prior to the judge’s decision being made public, Ford met with reporters at Queen’s Park where he defended his stance on not testifying.

“This is a federal inquiry about the federal government using the federal Emergencies Act. It’s not the province,” the premier said.

“This is a police matter and we gave the police more tools to bring the occupation to an end — and that’s what they did,” he said.

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

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

Ontario government lawyer Susan Keenan had argued that violating privilege would undermine the “separation of powers” from the federal government.

Keenan 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,” she said Tuesday.

But commission lawyer Doug Mitchell countered that the summonses were just “a gentle nudge” to get Ford and Jones, who is now the deputy premier and health minister, to voluntarily appear.

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

At Queen’s Park, the New Democrats, Liberals and Greens have been urging the premier and minister to testify.

Interim Liberal Leader John Fraser said Ford may have won in court Monday, but he “will continue to lose every day in the court of public opinion” unless he appears before the commission.

“Doug Ford still has a chance to do the right thing. He must volunteer to testify and explain to residents why he sat back and allowed the occupation to spiral out of control,” said Fraser.

NDP MPPs Joel Harden (Ottawa Centre), Chandra Pasma (Ottawa West-Nepean) and Lisa Gretzky (Windsor West) issued a joint statement imploring Ford and Jones to “do the right thing — show up to testify … as they have been asked to do and stop hiding behind the flimsy excuse of parliamentary privilege.”

Parliamentary privilege is a kind of legal protection claimed for legislative and executive branches of government — an immunity that generally prevents MPPs, MPs and cabinet ministers from being forced by courts to testify about matters viewed as essential to a parliamentary democracy.

Prime Minister Justin Trudeau — who invoked the Emergencies Act with the support of Ford — will be testifying at the inquiry.

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

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