What is parliamentary privilege and how is the Ford government trying to use it?

TORONTO — Ontario government lawyers are citing parliamentary privilege in Premier Doug Ford and one of his minister's fight against a summons to testify at the Emergencies Act inquiry in Ottawa. But what is parliamentary privilege and why is it being cited as an argument? Here’s what experts say:

What is parliamentary privilege?

Parliamentary privilege in Canada is part of the Constitution, but it has its roots in the English House of Commons centuries ago. It was designed to protect the House and its members from the power and interference from the King and the House of Lords, Canada's House of Commons website says.

When applied, it provides immunity to parliamentarians from being scrutinized by court, experts say.

Steven Chaplin, a former senior lawyer for the House of Commons and an adjunct professor at the University of Ottawa, said the privilege essentially means a politician cannot be summoned away from the legislative assembly.

"In other words, a summons cannot be issued that would require you to potentially not be able to attend at the provincial legislative assembly because constitutionally your obligation as a member of that assembly is to the assembly and nobody else," Chaplin said.

What is Ford's legal argument?

The province filed a judicial review application with Federal Court on Tuesday, arguing the summons issued Monday to Ford and then-solicitor general Sylvia Jones to testify breaches parliamentary privilege and "must be quashed."

The province's lawyers argue that parliamentary privilege prevents Ford and Jones from "being compelled to testify in any proceeding while the legislature is in session and for 40 days before and after each session" including any adjournments of the legislature.

"Parliamentary privilege is fundamental to our constitutional structure, arising from the separation of powers," the province said in its application.

"The privilege of the legislative assembly to control its own process, which includes its right to the attendance and service of its members and their resulting testimonial immunity, is the most important of the privileges and allow its members to proceed fearlessly and without interference in discharging their constitutional role. The executive, courts and other levels of government have no jurisdiction to review the application or exercise of Parliamentary privilege."

What have the courts said about parliamentary privilege?

The Supreme Court of Canada weighed in on parliamentary privilege in 2005 in a case where federal ministers had refused to testify in court.

"It basically said that the courts can look at the existence and scope of a privilege," Chaplin said. "In other words, does this privilege exist and do members have it? So what the courts have said is 'sorry, they have parliamentary privilege whether or not they're abusing it or not is not for us to decide.'"

Chaplin cited another case in 2005 at the Federal Court that deals with privilege at inquiries.

"The Federal Court held that the privilege of parliamentary immunity applied," the court wrote.

Are there limitations to parliamentary privilege?

Parliamentary privilege provides both individual rights of members of Parliament and collective rights of the house.

Individual rights include exemption from jury duty and freedom of speech in the house while enjoying complete immunity from prosecution or civil liability, an exempt from being subpoenaed to appear in court as a witness, the House of Commons website says.

But Michael Kempa, a criminologist, says parliamentary privilege is not absolute.

"The courts will consider and rule on whether the ask is so onerous as to interfere with the parliamentarian’s responsibilities to the legislature," he said.

"A day of testimony will likely not be judged too onerous. Parliamentary Privilege exists to protect the ability of the parliamentarian to serve the public interest through having the time and resources to execute their duties to the legislature."

Chaplin said he dealt with senior House of Common staff over the years who were asked to be called as a witness in a court case.

"We would just work with the courts and say, 'look, if you insist on us being there on a particular day, we will go to court and we will have the summons quashed, but we'll work with you to try to find a time that makes sense,'" he said.

Have other premiers testified in court or at inquiries?

Kathleen Wynne was a witness in an Election Act bribery trial in 2017 for two provincial Liberals who had been charged over allegations they offered a would-be candidate a job or appointment to get him to step aside for an NDP MP who was Wynne's preferred candidate in a 2015 byelection. She could have invoked parliamentary privilege, but waived it.

Mike Harris testified at the Walkerton tainted water inquiry in 2001, where he said he was accountable as the head of government for the situation where seven people died and a few thousand became sick from contaminated water.

Dalton McGuinty testified in the 2013 inquiry into the deadly mall collapse in Elliot Lake, where he said he called the head of the disaster recovery team to resume a search for potential survivors that had been called off.

Have other politicians testified at the Emergencies Act inquiry?

Outgoing Ottawa Mayor Jim Watson testified last week at the federal hearing. Windsor Mayor Drew Dilkens, Prime Minister Justin Trudeau and federal Attorney General David Lametti are all set to testify over the next month.

Will Ford and Jones's argument prevail?

Chaplin says the court should quash the summons because they have parliamentary privilege.

Ian Stedman, a public policy professor at York University, says he believes the court "will have no choice" but to say that privilege applies.

Kempa, meanwhile, says the privilege does not offer politicians a "free pass" on answering questions at one day of testimony.

"This appears a naked delay tactic, where the hope that the court will provide its ruling too late, once the legislated clock on the commission has run down," he said.

This report by The Canadian Press was first published Oct. 26, 2022.

Liam Casey, The Canadian Press