On Monday November 7, a judge ruled that Premier of Ontario Doug Ford and former solicitor General Sylvia Jones will not face legal consequences for skirting subpoenas issued to them urging their testimony at the Public Order Emergency Commission (POEC).
The ruling came one week after federal judge Simon Fothergill heard from lawyers representing Ford and Jones on why they are justified in invoking parliamentary privilege to evade testimony at the federally legislated POEC that is currently taking place in Ottawa. They were scheduled to appear on November 10.
Lawyers for Ford et al argued that one day of testimonies would distract the parliamentarians from their parliamentary duty and to force them to comply would result in irreparable harm. Ford believes that this is federal jurisdiction and therefore he does not need to comply.
The lawyer representing the Ottawa Residents’ Coalition said that “referring to this socially important inquiry as an inconvenience or a distraction would be a grave shame,” while the lawyer for the commission highlighted that there is no legal precedence that exists on invoking privilege in the context of a commission, especially one of such great public importance.
Judge Fothergill repeatedly wondered if the parliamentarians were invoking privilege as a sword… or a shield.
Nonetheless, he granted Ford and Jones their motion. Fothergill did not stay the summons, but he did provide legal immunity shall Ford and Jones cling to the apparently constitutionally protected notion of parliamentary privilege.
This was even though the commission outlined relevant questions regarding Ford and Jones’ presence at the commission.
On October 11, the commission states that Ford and Jones’ “testimonies are important to its fact-finding mandate and that there will likely be important gaps in its record if they do not testify.”
The province of Ontario had offered up two senior provincial officials instead: former assistant deputy minister of integrated policy and planning division with the Ontario ministry of transportation, Ian Freeman, and Mario Di Tommaso, Deputy solicitor General of Ontario. Neither are members of Ontario’s legislative assembly.
Yet the commissioner still had questions, such as why the above-named politician chose not to participate in a tripartite – a meeting meant to take place between the City of Ottawa, the province of Ontario and the Federal Government to coordinate a response.
Another question was points out that “the federal emergency declaration facilitated a police response, but policing is provincial jurisdiction. The Premier supported the federal public order emergency, why? Was he not satisfied that Ontario could resolve the situation in Windsor and Ottawa using provincial powers alone? Why?”
Initially, the subpoena issued to Ford and Jones was strongly worded. “This summons is enforceable in the same manner as a summons issued by a civil court of competent jurisdiction, including by contempt of court proceedings,” it says.
However, that contempt of court cannot be enforced now that Judge Fothergill has ruled partially in favour of Jones and Ford. He concluded that “The privilege provides the Premier and Minister with a lawful excuse not to comply with the summonses issued by the Commissioner.”
In his final judgement, Fothergill ruled that the summonses issued by the POEC are “valid,” but “as long as the Ontario Legislative Assembly remains in session and the Applicants continue to resist the summonses by asserting parliamentary privilege, the Commission cannot take steps to enforce their attendance and compel them to give evidence as contemplated.”
He did not award costs to any party.
If you think Premier Ford and Minister Jones should stop upholding their parliamentary duty, comply with the commissioner and testify, instead of hiding behind parliamentary privilege, then please sign our petition at StopHiding.ca.