The commission examining Ottawa’s use of the Emergencies Act is concerned there will be “important gaps” if Ontario politicians refuse to answer questions about the province’s response to convoy protests as Premier Doug Ford doubled down Wednesday on a court battle challenging summonses to testify.
Mr. Ford briefly addressed the summonses to appear at the public hearings in Ottawa, after not attending Question Period the day prior. The summonses were issued by the Public Order Emergency Commission on Monday for the Premier and former solicitor-general Sylvia Jones to testify Nov. 10. The commission is looking into the federal government’s use of the emergency powers to respond to anti-vaccine mandate protests that disrupted streets in downtown Ottawa and blocked the border crossing in Windsor earlier this year.
On Tuesday, the government filed a judicial review application to the Federal Court, citing parliamentary privilege as its argument for why the summonses should be dropped. The province has also requested that court grant a stay of the two summonses until there is a decision on the judicial review application. It plans to make the motion Nov. 1 at Federal Court. The hearings in Ottawa are scheduled to go until Nov. 25, putting a time crunch on the court proceedings.
Asked repeatedly by opposition MPPs why he is fighting the summonses to testify, Mr. Ford stood in the legislature only once and reiterated the government’s stand that the inquiry is a matter of how the police responded and not political. Politicians from other levels of government, including Prime Minister Justin Trudeau and departing Ottawa Mayor Jim Watson, have agreed to appear.
“This is a federal inquiry into the federal government’s use of the federal Emergencies Act. From day one, for Ontario, this was a policing matter, it was not a political matter,” Mr. Ford said before directing all other questions on the matter to Government House Leader Paul Calandra.
Ms. Jones, who tested positive for COVID-19 Wednesday morning, wasn’t in the legislature for the second-straight day. She is now the Health Minister and Deputy Premier.
The government also said it has co-operated with the commission by providing access to more than 800 documents, including key cabinet discussions, and has made two senior provincial officials available to testify, the deputy solicitor-general and a former assistant deputy minister in the Ministry of Transportation.
But lawyers for the commission have warned there may be unanswered questions if Mr. Ford and Ms. Jones don’t testify on the province’s response. In an e-mail chain between the commission and government lawyers released as part of the court filing, commission senior legal counsel Gabriel Poliquin wrote there are questions about events and policy decisions that only Mr. Ford and Ms. Jones could answer.
The commission wrote a list of questions for Mr. Ford on Sept. 30, before the start of the hearings, focused on the rationale for decisions made by the government in responding to the convoy protests. These include why the province declined to participate in at least two of three tripartite meetings with the federal government and the City of Ottawa, why the government didn’t invoke its Emergencies Act earlier and whether “political considerations” came into play in the province’s response to the Windsor border blockade versus the protests in Ottawa.
Mr. Poliquin said the unelected officials were unable to answer these questions during interviews as they weren’t privy to the political decision-making by Mr. Ford and Ms. Jones, which he argued is necessary for the commission to understand the complete picture.
“The commission remains of the view that their testimonies are important to its fact-finding mandate and that there will likely be important gaps in its record if they do not testify,” Mr. Poliquin wrote on Oct. 11, asking about the possibility of interviews with the two politicians.
Government lawyer Darrell Kloeze argued that commission interviews with Mr. Ford and Ms. Jones are “unnecessary” and wouldn’t add anything more to the inquiry than the witnesses the province has already offered.
“Ontario’s witnesses will testify and we believe will answer many of the questions parties have about Ontario’s institutional response to the protest activities,” he wrote.
Parliamentary privilege provides rights and immunities to elected officials to avoid interference from their elected duties when legislatures are sitting. This includes exemptions from being subpoenaed to participate in court proceedings. Although Ontario’s legislature is in session, it isn’t meeting the week Mr. Ford and Ms. Jones have been asked to testify.
Parliamentary law expert and University of Ottawa professor Steven Chaplin said these privileges are constitutional and he believes a court would find they supersede the commission, which is operating under the authority of a statute with the ability to issues summonses under the Inquiries Act.
NDP Opposition MPP Marit Stiles accused the government of using parliamentary privilege as an excuse to not answer for its actions during the protests in February. Mr. Ford and the government faced criticism for their response and the length of the protests in both Ottawa and Windsor.
“The fact is, this Premier is hiding. He’s hiding from the people of Ontario, he’s hiding from the federal commission, he’s hiding from the people of Ottawa, he’s hiding from the people of Windsor,” Ms. Stiles said.
With reports from Jeff Gray and Sean Fine