Can Premier Ford Avoid Testifying Before the Rouleau Commission?

The Public Order Emergency Commission chaired by Justice Paul Rouleau of the Ontario Court of Appeal has been up and running for the past few weeks. The Commission is established under s. 63 of the Emergencies Act:

The Governor in Council shall, within sixty days after the expiration or revocation of a declaration of emergency, cause an inquiry to be held into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency

The Commission has to report back to Parliament within a year of the revocation of the declaration: s. 63(2).

A conspicuous absentee from the list of witnesses to be called by the Commission, which includes Prime Minister Justin Trudeau, is Ontario Premier Doug Ford. The Commission, of course, must examine whether conditions in Ottawa in February of this year, along with conditions elsewhere in the country, justified resort to the Emergencies Act as protesters dug.

Mr. Ford has been mentioned by other witnesses and now the Commission is seeking to subpoena him to testify. Mr. Ford is going to seek judicial review to quash the subpoena.

In this, he will almost certainly be successful. A parliamentarian cannot be compelled to testify during a parliamentary session. The legislative assembly of Ontario is currently in session. As Maingot wrote in Parliamentary Privilege in Canada at p. 158:

Since Parliament has the paramount right to the attendance and service of its Members, any call for the Member to attend elsewhere while the House is in session is not a call that need be answered. Thus the Member is not compelled to attend as a witness before any court or tribunal in Canada while the House is in session, whether in a criminal, civil, or military matter.

Parliament and the legislative assembly of Ontario are on the same footing in this respect.

There is also a thorough discussion in chapter 3 of House of Commons Procedure and Practice (3rd ed., 2017):

The right of the House to the attendance and service of its Members exempts a Member, when the House is in session, from the normal obligation of a citizen to comply with a subpoena to attend a court as a witness.208 This exemption applies in civil, criminal and military matters before the courts.209 However, this claim is not intended to be used to impede the course of justice and, therefore, is regularly waived, particularly for criminal cases.210 When the House is in session, should a subpoena or other legal process be served on a Member, the Member may wish to appear in court if the Member feels that absence from court might affect the course of justice. However, the Member still has a right to claim the privilege of exemption from appearing as a witness.211 A Member may give evidence voluntarily without any formality, even on a day when the House is sitting or scheduled to meet,212 but if he or she does so, the Member surrenders the protection this privilege provides.213

Members are exempt from appearing as a witness in any court when the House is in session, 40 days before and after a session, and 40 days following a dissolution of Parliament.214 This includes periods when Parliament is prorogued. Speaker Fraser reinforced this claim in a May 1989 ruling: “… the right of a Member of Parliament to refuse to attend court as a witness during a parliamentary session and during the 40 days preceding and following a parliamentary session is an undoubted and inalienable right supported by a host of precedents”.215

The courts have not always agreed with this viewpoint. In 2003, the matter of the extent of this privilege was the subject of a case before the courts in British Columbia and it was determined that the privilege does not extend beyond the session.216 In 2007, the Quebec Court of Appeal upheld an earlier decision of the Quebec Superior Court which found that, while a Member has immunity from appearing as a witness when Parliament is in session, this immunity does not extend to a Member as a party to the litigation. Relying on the United Kingdom Parliamentary Privileges Act, 1770, the Court stated that the Member’s legal obligations had priority over his parliamentary responsibilities. Nonetheless, the Court urged the parties and the courts to try to schedule trial dates around the parliamentary calendar.217

The position in Ontario is somewhat different. The courts in this province have accepted that the privilege extends for 40 days before and 40 days after each session.218 The courts have also decided that the summons for an examination is equivalent to a subpoena for a witness and, therefore, the exemption period of 40 days before and after a session of Parliament applies.219

Just as in the case of jury service, senior House officials or individuals summoned to appear before the House or its committees are also exempt from appearing as witnesses in court if their services are needed by the House.220

A member may waive privilege and testify – and arguably should where the administration of justice requires it – but cannot be compelled to do so. As far as I understand it (procedural experts are welcome to weigh in), the Ontario legislative assembly will be in session up to the point that Justice Rouleau has to table his report in Parliament, which means that there is no way for him to wait Premier Ford out.

Canadian courts have not wavered in their hard line on this issue and I do not expect them to quail on this occasion. The short answer, then, is yes, Premier Ford can avoid testifying to the Rouleau Commission.

This content has been updated on October 25, 2022 at 19:47.