Push for Ford’s Emergencies Act testimony was political, not legal

Whether Ford should appear is much different than whether he must appear

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On Monday, Justice Simon Fothergill of the Federal Court in Ottawa ended the political drama of whether Ontario Premier Doug Ford was required to testify at the Emergencies Act inquiry.

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Also on Monday, those pushing for it proved the political nature of the request.

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Fothergill ruled that Fordand his Deputy Premier Sylvia Jones, were not required to testify at the federal inquiry because the Ontario legislature is currently in session and the ancient right of parliamentary privilege applies.

“A waiver of parliamentary privilege in these circumstances would be the product of coercion, and would have the effect of undermining the privilege,” Fothergill wrote.

This outcome was fairly evident to those looking at the rule of law rather than arguing Ford should testify from a political or emotional point of view. Parliamentary privilege is not just an abstract theory, it is an important part of how our government works and allowing a federal public inquiry to demand that Ford, or any other politician testify, would overturn centuries of protection around the separation of powers.

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“Parliamentary privilege is ‘one of the ways in which the fundamental constitutional separation of powers is respected.’ It supports the exercise of parliamentary sovereignty to ensure that a legislature is ‘safeguarded a due measure of autonomy from the other two branches of the state, the executive and the judiciary.’ Parliamentary privilege protects the operation of the legislature from outside interference,” Fothergill wrote.

Should is not the same as must

Now, you can think that Ford and Jones should testify. You can think it is the right thing to do, that either morally or politically they should be forced or shamed into testifying. That’s not what the court was asked to do, the court was asked to deal with the question of whether the summonses issued could be enforced.

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The answer is no.

“The people of Ottawa felt abandoned during a three-week occupation in February, where their streets became zones of lawlessness,” Bijon Roy, of Champ & Associates, said in a statement cited by the National Post,

Roy wanted Ford to show up in Ottawa and explain himself. Strangely, that’s not the purpose of this inquiry as much as Roy and his law partner Paul Champ want to use it to religate the Freedom Convoy on its political merits using a public inquiry.

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Were Ford, or any other premier, to call a public inquiry into the handling of COVID-19 and attempt to summon Justin Trudeau to testify, the same people demanding Ford show up would laugh it off. Yet the principles at play would be the exact same.

“This is a federal inquiry based on the federal government calling for the Emergencies Act. This is a federal issue,” Ford said Monday when asked about the issue.

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Law is clear on using act

He’s right, the central question for the inquiry is whether using the Emergencies Act was justified. The act states that an inquiry must “be held into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.”

The threshold for determining whether the Emergencies Act is needed is set out in the law as well. A public order emergency is defined as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.” The law also states that the act is to be invoked when an incident “cannot be effectively dealt with under any other law of Canada.”

We haven’t heard evidence to meet that threshold yet.

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Part of the rationale for invoking the Emergencies Act is that there were protests across the country including border blockades in British Columbia, Alberta and Manitoba. Yet only Ontario’s Ford was called to testify and was the only premier to receive a summons.

The closest we came to actual violence was in Coutts, Alta. where people were arrested with guns, but Jason Kenney, then premier of Alberta has not been called to testify.

The order in council setting up the inquiry made participation of other levels of government voluntary. It said, “Provide provincial, territorial and municipal governments with an opportunity for appropriate participation in the public inquiry, if they request it.” None of the provinces appear to have requested it.

As I wrote two weeks ago, whether Ford should appear is much different than whether he must appear. The court has rightly ruled he doesn’t need to appear, as Fothergill noted politicians, like Ford, are “ultimately accountable to the electorate and not the courts.”

Voters will have their say, though in some ways they already did when they returned Ford with a bigger majority last June.

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