In Ontario (Premier) v. Canada (Commissioner of the Public Order Emergency Commission), 2022 FC 1513, the Federal Court ruled that Ontario Premier Doug Ford and Deputy Premier Sylvia Jones did not need to testify at the Emergencies Act inquiry because of parliamentary privilege.
Background
The Public Order Emergency Commission (the “Commission”) was established on April 25, 2022 pursuant to s. 63(1) of the Emergencies Act, RSC, 1985, c 22 (4th Supp) and Part I of the Inquiries Act, RSC, 1985 c I-11, to inquire into the circumstances that led to the declaration of a public order emergency between February 14 and 23, 2022 with respect to the convoy, blockades, and protests in Ottawa, and the measures taken to deal with the emergency.
On October 24, 2022, the Commission issued summonses to Premier Ford and Deputy Premier Jones (the “Applicants”) requiring them to testify before the Commission on November 10, 2022.
The Applicants brought an application for judicial review to the Federal Court challenging the summonses on the ground that the Ontario Legislative Assembly was in session, and as elected officials they benefited from the parliamentary privilege of testimonial immunity. The Applicants alleged that the summonses were issued without jurisdiction and should be quashed. They also requested an urgent hearing of a motion for an order staying the summonses until the underlying application could be determined on its merits.
The Federal Court’s decision
The sole issue before the Court was whether the summonses should be stayed pending the Court’s determination of the application to quash the summonses for lack of jurisdiction. To answer this question, the Court applied the well-established test for interlocutory injunctive relief from the Supreme Court of Canada’s decision in RJR-MacDonald Inc v. Canada (Attorney General), 1994 CanLII 117. First, a preliminary assessment must be made of the merits of the case to ensure there is a serious question to be tried. Second, it must be determined whether the Applicants will suffer irreparable harm if the stay is refused. Third, an assessment must be made as to which of the parties will suffer greater harm from the granting or refusal of the stay.
Serious issue
The Court confirmed that the threshold for establishing a serious issue to be tried is generally low. However, there are two exceptions to the general rule that a judge hearing an interlocutory motion should not engage in an extensive review of the merits. The first arises when the result of the motion will amount to a final determination of the underlying proceeding. The second arises when a question of constitutionality presents itself as a simple question of law alone. When an exception arises, a more extensive review of the merits must be undertaken. The Court must be satisfied that the Applicants are likely to prevail in the underlying application.
The Applicants argued that both of these exceptions applied. Firstly, they noted that their submissions and evidence on the interlocutory motion would be the same as the underlying application, thus making the result of the motion effectively a final determination of the proceeding. Secondly, they argued that parliamentary privilege is part of the Canadian constitution by virtue of the Constitution Act, 1867. The parties agreed that the motion would effectively determine the issue, as the public inquiry would be over before the underlying application could be heard. Accordingly, the Court held that the Applicants needed to establish the existence of a serious issue on the elevated standard. The Court therefore confirmed that it would not grant the relief sought unless satisfied, on a balance of probabilities, that the parliamentary privilege of testimonial immunity applied in the circumstances.
The Court described parliamentary privilege as the sum of the privileges, immunities and powers that are necessary for members of the Senate, the House of Commons, and provincial legislative assemblies to fulfill their legislative duties. Testimonial immunity is an established category of parliamentary privilege that all Members of Parliament can assert while the legislature is in session and for 40 days before and afterward. On an application for judicial review, the Court’s role is limited to determining the existence of the privilege. Courts may not review the exercise of a necessary parliamentary privilege, as that is the role of the legislature.
The Commission did not dispute the existence of the parliamentary privilege of testimonial immunity, nor did it contest that the Ontario Legislative Assembly was in session and would remain in session beyond the conclusion of the evidentiary hearings for the public inquiry. The only dispute was about whether the privilege can be invoked to resist a summons issued by a commission of inquiry, as opposed to one issued by a court or other tribunal.
The Court cited Gagliano v. Canada (Attorney General), 2005 FC 576 (“Gagliano”), a prior decision of the Federal Court in which it held that the parliamentary privilege of free expression applies to a federal commission of inquiry. However, the Commission emphasized that no court has ruled that the parliamentary privilege of testimonial immunity applies in the same manner. Rather, they argued that the scope of the privilege remains contentious, and it was only intended to protect parliamentarians from the distraction of vexatious litigation, not public inquiries. The Court disagreed with this argument, finding that prior case law established that the parliamentary privilege of testimonial immunity is not limited to vexatious litigation, but rather extends to civil, criminal, administrative, and military proceedings generally.
Further, the Court emphasized that once a category of privilege is established, proof of necessity is no longer required. If the privilege is determined to exist, it must be extended to every proceeding, including commissions of inquiry. The Court confirmed that the Ontario Legislative Assembly is the sole judge of the manner and exercise of the privilege, and this is not reviewable by the courts. The Court distinguished Gagliano, where the necessity of the parliamentary privilege of free expression had to be determined only because the scope and application of that particular privilege to a commission of inquiry was uncertain. The Court found no such uncertainty in this case, but noted that even if it were uncertain, the result would be the same.
The Court therefore concluded that the parliamentary privilege of testimonial immunity may be invoked to provide the Applicants with a lawful excuse not to comply with the summonses. However, the Court was not persuaded that the summonses themselves were invalid, or issued without jurisdiction pursuant to an error of law. To accept this assertion would be to turn parliamentary privilege from a shield into a sword, contrary to parliamentary intent. The Commissioner had jurisdiction to issue the summonses, and it remained open to the Applicants to waive parliamentary privilege. While the summonses were valid, they could not be enforced so long as the Applicants resisted them by asserting parliamentary privilege.
Irreparable harm
The Court agreed with the Applicants that this case fell within the rare and narrow second exception that arises when a question of constitutionality presents itself as a simple question of law alone. Accordingly, there was no need to consider the second and third components of the test for interlocutory relief, but for the sake of completeness, the Court addressed them anyway.
The Court commented that personal inconvenience and the risk of public criticism could not amount to irreparable harm, however it held that declining to grant interlocutory relief in this case would cause irreparable harm to the parliamentary privilege and the rule of law, as parliamentary privilege is one of the ways in which the fundamental constitutional separation of powers is respected. Enforcing the summonses in the face of a valid claim of parliamentary privilege would impair and undermine the separation of powers and the independence of the legislature.
Balance of convenience
The Court found that the prejudice to the Applicants that would result from permitting a violation of parliamentary privilege outweighed the legitimate interest of the Commission in receiving their testimony. While there were a few discrete areas where the Applicants were uniquely qualified to give evidence, the primary mandate of the inquiry was directed towards federal decision-making, not provincial. The Court also noted that the Commission received numerous documents from the Government of Ontario, and two high-ranking witnesses from the Ontario public service were scheduled to testify. By contrast, enforcing the summonses would breach an established parliamentary privilege which was fundamental to respecting the constitutional division of powers.
Conclusion
The Court held the Applicants were entitled to a declaration that, so long as they continued to assert a valid claim of parliamentary privilege, they had a lawful excuse for not complying with the summonses issued by the Commission. Although the summonses were valid, the Commission was not entitled to take steps to enforce the Applicants’ attendance or compel them to give evidence. As this motion fell within the narrow confines of the second exception to the general rule that a judge hearing an interlocutory motion should not engage in an extensive review of the merits, the Court’s decision constituted a final determination of the issue.
Takeaways
This case provides a useful analysis of the application and scope of parliamentary privilege, in particular with respect to testimonial immunity. The Court’s decision confirms the broad application of this privilege to all types of proceedings, thus limiting the ability to enforce summonses issued to parliamentarians for public inquiries. The case also serves as an example of a narrow exception through which a court may conduct a detailed analysis of the merits of an application and make a final determination on an interlocutory motion.
Christopher Wirth is a partner and Alex Smith is an associate with Keel Cottrelle LLP.