Ontario Premier Doug Ford and a top minister have overstated the privilege they enjoy as politicians as they try to get out of testifying at the Emergencies Act inquiry, the commissioner overseeing the proceeding said Monday in court documents.
The Public Order Emergency Commission summoned Ford and then-solicitor general Sylvia Jones last week to testify at the inquiry, which 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.
Lawyers for Ford and Jones filed an application for judicial review in Federal Court last week that seeks to quash the summons, citing parliamentary privilege — legal immunity that prevents a politician from testifying while the legislature is in session and for 40 days before and afterwards.
The commissioner, Justice Paul Rouleau, an Appeal Court judge, is now seeking to have Ford and Jones’s application dismissed.
“The applicants overstate the extent of the privilege in issue,” the commissioner said in court documents. “There is no blanket privilege to decline to testify; it is only a temporal privilege.”
The Federal Court is set to hear arguments on Tuesday in Ottawa.
In a judicial review application filed with the court last week, lawyers for Ford and Jones argued the summons breaches their parliamentary privilege by attempting to compel the pair to testify.
The lawyers said that “irreparable harm will occur” if the two are forced to testify, which the commissioner took issue with.
“Second, being required to testify before a commission of inquiry does not constitute irreparable harm,” the commissioner wrote.
The commissioner said that it has “never been established” that parliamentary privilege can be used at an inquiry and that he is “legally entitled” to Ford and Jones’s evidence under its parliamentary mandate.
“In the circumstances of this case, it is apparent that the applicants are seeking to use a principle with uncertain application to the commissioner’s summonses to delay their testimony until after the commission’s mandate has expired,” Rouleau wrote.
The commission will hear evidence at the public inquiry until Nov. 25 and must file a report with recommendations by Feb. 20, 2023.
The commission wants Ford and Jones, who last week disclosed she had COVID-19, to testify on Nov. 10.
Court documents show the commission’s lawyers have been negotiating with the lawyers for Ford and Jones, who is now the health minister, for weeks.
By mid-September, the lawyers said it would be important to interview Ford, especially given what it had uncovered by then. It had found through interviews that the province had declined to meet with the mayor of Ottawa and the federal government in an effort to figure out how to end the convoy’s occupation of the nation’s capital for weeks.
It wants to know why Ford and Jones didn’t participate in several meetings with other levels of government over the situation.
Multiple witnesses have described Ford and Jones’s “participation or lack thereof in the events leading up to the declaration of emergency” and wants to question them on that,” the commissioner said in court documents.
Throughout the lead up to the start of the inquiry, the province’s lawyers denied the commission’s repeated attempts to interview Ford.
On Oct. 11, two days before the inquiry started, the commission’s lawyers advised Ontario’s lawyers they wanted Ford and Jones to testify, court documents show.
Six days later, the commission again said the pair should testify, but was warned by Ford and Jones’s lawyers that a summons would not be effective, “since parliamentary privilege applies.”
On that same day, Ford told reporters he was not asked to testify at the inquiry.
Then came the summons last Monday, which kicked off a furor at Queen’s Park with opposition members demanding he testify.
The premier skipped question period on the first day the legislature resumed sitting last Tuesday, with a top minister saying Ford was too busy to appear.
Ford answered one question the next day and repeatedly said the inquiry was a federal matter and not a provincial one. He has also repeatedly said the occupation in Ottawa by the so-called Freedom Convoy and a near week-long blockade of the most-travelled international bridge in Windsor was a policing issue, not a political one.
He stressed the province has provided two top bureaucrats to answer questions at the inquiry, has given 800 pages of cabinet documents to the commission and top Ontario Provincial Police officers have testified.