Doug Ford’s reasons for not testifying may not be good enough, judge suggests

Premier Doug Ford and former Solicitor General Sylvia Jones will be in limbo for a week while a judge determines whether they can be compelled to testify at the federal Emergencies Act inquiry.

At a four-hour hearing on Tuesday in Ottawa, lawyers for Ford and Jones argued that compelling them to appear would cause « irreparable harm » to the independence of legislatures.

But Federal Court Judge Simon Fothergill – who has promised a decision by next Tuesday on whether to grant their request to suspend their subpoena two days later – suggested their claim of “privilege parliamentary” could be eclipsed by the public good.

Ford and Jones fight subpoenas at public inquiry into federal law used to end last winter’s so-called ‘Freedom Convoy’ protest that blocked downtown Ottawa for three weeks.

« Thus, the question that arises for me will be the following: is the absence of a summons also necessary when the summons emanates from a commission of inquiry, which has a high public objective? » Fothergill told the court.

« I have to be satisfied that the province will win this argument in order to grant a reprieve, » added the judge.

« The Prime Minister and the Deputy Prime Minister are valuable witnesses for their observations and the facts they can attest to. »

The ongoing investigation, overseen by Ontario Court of Appeal Judge Paul Rouleau, is due to end on November 25 and its full report is due February 6.

Fothergill disputed the assertion of Ontario government lawyers that the summonses « were issued without jurisdiction, under an error of law, and must be set aside. »

“I think the summonses are good enough,” said the judge, who intervened frequently by questioning the province’s lawyers and the points of law commission.

Ontario government lawyer Darrell Kloeze said parliamentary privilege — intended to keep lawmakers free for their primary duties — applies regardless of whether the legislature is not scheduled to sit next week.

« Members can be called upon to act…at any time. »

Co-lawyer Susan Keenan said irreparable harm could result from a breach of privilege regarding the federal government’s ‘separation of powers’ and raised the possibility of Ford and Jones being fined or recognized in contempt for refusing to testify on the basis of their privilege.

« It’s the hill they’re climbing. »

Commission lawyer Doug Mitchell called the summonses a « little nudge » to get Ford and Jones, now deputy premier and health minister, to appear voluntarily before a commission that doesn’t have the power to make legal findings, unlike a court.

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

The judge then noted that « the risk of being criticized in an investigation is an essential part of his function ».

Bijon Roy, a lawyer for the Ottawa Residents’ Coalition, opposed a stay for Ford and Jones, saying the irreparable harm « must be much more concrete than the speculative level » and noting that the problem with the blockade that going on for so long is that « nobody showed up » – a reference to a slow response from governments.

That’s why it’s important for Ford and Jones to testify, Roy said.

« The more information the better…it’s crucial. »

At Queen’s Park, Interim NDP Leader Peter Tabuns said government lawyers are « grabbing anything » by saying testifying would undermine the legislature.

“It’s a useless argument that makes no sense. Frankly, he’s the head of the province. He is responsible for explaining his actions,” Tabuns said.

“We have the right, in a democracy, to question our leaders. He is taking the completely wrong approach,” he said.

Interim Liberal Leader John Fraser said ‘it looks like a lame excuse’ given that previous prime ministers have waived the privilege.

“Premier (Mike) Harris, Premier (Dalton) McGuinty, Premier (Kathleen) Wynne have all done essentially the same thing. They were called to testify, they testified,” Fraser said, referring to past investigations, legislative committee hearings and court cases.

« I don’t recall any irreparable harm, » he said.

Green Leader Mike Schreiner said he is « even more concerned now about the decisions the Premier has made if they somehow cause irreparable harm to the Province of Ontario » .

« He needs to do his job and step up and be honest with the people of the province about the actions and decisions he’s made regarding the Emergencies Act, » Schreiner said.

“Last June the Prime Minister said he would testify and now he says he will not testify. What has changed between yesterday and today? The prime minister has to answer for that as well,” he said.

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

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