Ford’s lawyers claim irreparable harm to the rule of law if the subpoena is not served | Rare Techy
Government of Ontario lawyers argued on Tuesday that Prime Minister Doug would cause irreparable damage to the rule of law Ford and a senior minister were forced to testify at a federal inquiry after invoking parliamentary privilege in an attempt to avoid it.
But lawyers The Public Order Emergency Commissioner, who is overseeing the investigation, said evidence of the damage was “speculative” at best.
Arguments were made in the Federal Court as Ford and then-solicitor general Sylvia Jones want to quash a subpoena to appear at an inquiry into how the federal government used emergency legislation to end the so-called Freedom Convoy protests in Ottawa and Windsor, Ont.
Both of them Ford and Jones has argued through them lawyers that they are immune from testifying after invoking parliamentary privilege, a centuries-old constitutional privilege granted to sitting politicians.
Parliamentary privilege is what protects the separation of court, crown and legislature in the proper functioning of the constitutional system, said provincial lawyer Susan Keenan.
“It’s important that the privilege is protected when it’s threatened,” Keenan said. “If not, the damage is not only irreparable, but cumulative.”
Ford and Jones last week requested a stay of subpoenas issued during the investigation pending a full hearing on their request for judicial review.
The judge and the parties agreed that there would not be time to review the full application because the commission would only work until November 25 and Ford and Jones are scheduled to testify on Nov. 10 if a subpoena is granted.
The investigating commissioner wants to hear Ford and Jones, how they resolved the occupation in downtown Ottawa and the blockade of traffic from the US at the Ambassador Bridge in Windsor.
Ford and Jones could face contempt of court, fines and jail time for ignoring the subpoena if they don’t win their request for a stay. lawyers said.
“It puts the prime minister and deputy prime minister in an intolerable position where they have to assert their privileges and face contempt proceedings,” said another provincial lawyer, Darrell Kloeze.
The province argued that not granting a stay would chill all legislative bodies, leaving politicians open to possible fines, contempt of court or imprisonment if they chose not to testify in any proceedings.
Keenan said allowing the subpoena would undermine all parliamentary privileges. These include immunity from jury duty and freedom of speech in the House while enjoying complete immunity from prosecution or civil liability, and immunity from subpoenas to appear as witnesses.
Hearing arguments, the judge said he had difficulty with the idea that the subpoena itself would be invalid because the commission has the same subpoena power as the provincial Supreme Court.
Judge Simon Fothergill said both Ford and Jones has to give “relevant” testimony and that the harm done to them is practically not that serious, only two people testify.
He noted that parliamentary privilege, which comes with immunity from criminal or civil subpoena, is a long-standing privilege. But Fothergill said the case will turn on whether he finds the privilege applies to public inquiries.
The province cited a 2005 federal court case that found parliamentary privilege applies to public inquiries.
Doug Mitchell, a lawyer for the commission, argued that no case had previously determined whether parliamentary privilege applied to investigations. He argued that privileges must be determined on a case-by-case basis.
“It’s up to the court to determine the scope (of the privilege), you don’t just accept what Parliament is saying,” Mitchell said.
He said there is no general rule that guarantees sitting politicians immunity in every case, adding that several courts have disagreed with MPs asserting various privileges.
Mitchell said Ford and Jones’ irreparable harm argument has no evidence of harm to them as individuals, only their argument that it would undermine the rule of law.
“I think it’s pretty speculative at this point,” he said.
Mitchell said Ford and Jones has the choice of whether or not to waive parliamentary privilege, as have other federal ministers, including Prime Minister Justin Trudeau and Attorney General David Lametti, who are scheduled to testify in the coming weeks.
“I don’t think it’s an irreparable loss to make a tough choice,” Mitchell said. “It’s dressed up in a constitutional ban, but it’s not the type of irreparable harm that a court is entitled to demand.”
The judge said he would rule by November 8, two days earlier Ford and Jones are scheduled to testify at the inquest.
By Liam Casey