Ontario Premier Doug Ford is legally challenging a request that he testify under oath before the Emergencies Act inquiry — saying it would be “inconsistent” with parliamentary privilege to force him and his minister Sylvia Jones to appear.
It’s the latest push from Ford to reject the commission’s attempts to have him speak before them after commission officials say the premier rebuffed multiple requests to speak with the inquiry dating back to Sept. 19.
While Ford said during a press conference last week that he had “not been asked” to appear before the inquiry, the commission itself confirmed they had requested both Jones — who served as Ontario’s solicitor general during the convoy protests — and Ford to speak with them “a number of times.”
Each time, the commission says they were shot down.
After exhausting their options, the commission issued a summons Monday to Ford and Jones pursuant to Section 4 of the Inquiries Act — a move that could compel the pair to testify.
In response, Ford and Jones are leaning on an often-used but seldom explained concept to try to quash the commission’s demands: parliamentary privilege.
Here’s what you need to know about it.
What is parliamentary privilege?
The concept of parliamentary privilege is centuries old and was first claimed when the House of Commons in the United Kingdom was trying to establish a distinct role for itself.
Members of Parliament had to be protected from any interference on the part of the monarchy and the House of Lords — the British counterpart to Canada’s Senate — and the power they wielded.
As a result, the original definition of parliamentary privilege from Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, published in 1844, was fairly vague:
“Parliamentary privilege is the sum of certain rights enjoyed by each House collectively… and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.”
Like many of the conventions of the Westminster-style system — the name for the parliamentary system of government used in countries like Canada that draw their governance model from the U.K. — parliamentary privilege has become a part of Canada’s parliamentary system, too.
In practice, parliamentary privilege gives politicians immunity in a few different contexts. It grants them freedom of speech, freedom from arrest in civil actions, and exemption from jury duty. Parliamentary privilege also grants legislators exemption from being subpoenaed to attend court as a witness.
“It’s still used, in effect, basically to ensure that Parliamentarians can do their job and that they don’t get called away to other matters,” explained parliamentary expert and Carleton University associate professor Philippe Lagassé.
How is parliamentary privilege used?
Parliamentary privilege has been both a salve and a source of headaches for politicians over the years, who have invoked the longstanding rule in a number of different situations.
The original intent of this privilege is to ensure that legislators and elected politicians have the rights and immunities that are necessary for them to do their jobs.
And while it may be useful that members of Parliament can’t be made to sit on jury duty for weeks on end, potentially missing important debates and votes on behalf of their constituents, the concept “can be abused,” according to Lagassé.
One example of this abuse is the fact that, in the House of Commons, members are exempted from defamation and libel laws — meaning they can make claims about their political rivals that would get them sued if they said it anywhere else.
This is why, during particularly tense exchanges, members have challenged one another to repeat an allegation or insult outside the doors of the House of Commons, implying the statement would get them sued if they did so.
“They’re not doing it for the public interest. They’re just doing it because they can, or because it’s good rhetoric,” Lagassé said of members of Parliament exercising this aspect of privilege.
“I think that makes something of a mockery of our libel laws, to some extent.”
Why is Ford invoking parliamentary privilege -- and will it work?
Public inquiries, as defined under the Inquiries Act, function similarly to a court, according to Lagassé.
For example, they can issue summons that require the person named to testify — and anyone who fails to attend an inquiry without a “valid excuse” can be fined up to $400.
However, parliamentary privilege exempts legislators from being forced to testify before a court. So the question a judge will have to answer, in this case, is whether that privilege extends to a public inquiry.
That’s exactly what the Ontario government appears set to argue.
In a statement from the Ministry of the Attorney General, the Ford government indicated it would be seeking a judicial review “to set aside the summons and receive a stay under the grounds the summons are inconsistent with the members’ parliamentary privilege.”
For Lagassé, the attempt to invoke parliamentary privilege in this context doesn’t reflect “the purpose or the original intent” of the concept.
“I don’t think it’s a proper use of parliamentary privilege,” he said.
“But that said, this is far from the only time that we’ve seen parliamentary privilege used for less than noble ends.”
— With files from Global News’ Colin D’Mello
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