There is no real substantive reason why the Premier of Ontario can’t testify before the inquiry into the use of the Emergencies Act, but, as a Federal Court judge has ruled, he has a “lawful excuse.”
Doug Ford has found that he can indeed use an important, constitutionally entrenched principle to serve small political goals.
Mr. Ford and his Deputy Premier, Sylvia Jones, had claimed parliamentary privilege, the venerable precept that ensures the work of legislatures isn’t sidetracked by lawsuits and legal proceedings, to avoid a day of testimony this Thursday – on a day when the Ontario legislature isn’t even sitting.
He has won in court, so now he won’t have to explain why he felt Ontario’s policing laws, and Ontario’s police, weren’t enough to handle February’s truckers’ convoy protests and blockades of border crossings and city streets, or testify about those events, which took place mostly in his province.
Justice Simon Fothergill’s ruling made clear that Mr. Ford won in court because parliamentary privilege protects MPPs from having to testify before courts and inquiries – whether or not testifying would actually impede the work of the Premier, or the legislature.
In the end, Justice Fothergill acknowledged the breadth of parliamentary privilege. It isn’t some tiny technicality. It’s a principle of parliamentary independence from the courts that comes from Westminster and is entrenched in Canada’s Constitution.
But the key issue is still that Mr. Ford and Ms. Jones didn’t have to hide behind that privilege. Parliamentarians often waive it. The Premier used this big principle as a legal loophole to protect himself.
If you’re keeping score, you might notice that Mr. Ford has made a habit of invoking big constitutionally recognized mechanisms to deal with political challenges. He pre-emptively invoked the notwithstanding clause of the Charter of Rights in back-to-work legislation for support workers in Ontario schools. He backtracked on that Monday. Just because you can invoke big principles to further small politics, it doesn’t mean you should.
It is true, as Mr. Ford has argued, that the Emergencies Act inquiry revolves around a federal government decision. What’s at issue is Prime Minister Justin Trudeau’s decision to invoke the act on Feb. 14 to respond to the convoy protests. That legislation, which allowed the authorities to employ extraordinary powers including freezing bank accounts, is only to be used when no other law will do. The inquiry must determine whether that threshold was met.
But to get there, the commission has to figure out whether normal policing – under the jurisdiction of the province – should have been enough. Mr. Ford felt it wasn’t.
One of the commission’s unasked questions, cited in the judge’s rulings, was why the Premier supported the federal Emergencies Act orders: “Was he not satisfied that Ontario could resolve the situation in Windsor and Ottawa using provincial powers alone? Why?”
Instead of getting answers, we are now left to wonder why Mr. Ford would go to such lengths to avoid them. The Premier even claimed he hadn’t been asked to testify when he’d been asked repeatedly.
Is there really some secret that Mr. Ford is desperate to hide? That seems unlikely. Is it that Mr. Ford and Ms. Jones don’t want to face questions that would confirm that the provincial government couldn’t figure out what to do about the convoy, so they did nothing for weeks, then declared their own provincial state of emergency? Or is it simply that Mr. Ford’s handlers don’t think he could get through hours of questioning on camera without embarrassment?
At first, it might simply have been an effort to avoid being linked with the topic again. Mr. Ford’s Ontario Progressive Conservatives have supporters that are both for and against the convoy, and his government didn’t seem to please either side.
But it’s worth remembering what the Premier was ducking. He was avoiding giving information to an inquiry into the use of legislation so extraordinary that there has to be a public inquiry every time it is used.
Justice Fothergill wrote that it appears that Mr. Ford and Ms. Jones “may have valuable evidence to offer.” But he concluded parliamentary privilege is important, and courts can’t decide how it is used. Mr. Ford can use that big principle for small purposes.
He has a “lawful excuse.” But he never should have used it.