HEIMPEL: Ford snubbing inquiry to protect himself and legislature

Article originally published in Toronto Sun

In politics, as in life most of the time, understanding the ‘why’ of something is an essential part of understanding it at all.

One thing the Public Order Emergency Commission (POEC) is not short on is lawyers. There are some 19 different legal teams represented, to say nothing of the judge and supporting staff running the inquiry itself. All of them would know that parliamentary privilege is expressly protected in Section 18 of the Constitution Act of 1867.

All of them would know there are precedents on the books that protect elected members of provincial and federal legislatures from being compelled to testify, not just in criminal and civil matters, but in administrative and military courts and tribunals as well. In 2007, the Ontario Superior Court of Justice even concluded this protection extended to mediation in civil matters. There is no solid legal footing for what the Commission is trying to do here.

This means all these lawyers, many of them of a truly exceptional calibre, knew going in that summoning Ontario’s premier and deputy premier was likely a dead-in-the-water legal move when they did it. But, they did it anyway. So, we should ask ourselves…why?

Listen, the POEC is doing good work. Most importantly, it has to this point taken one of the most polarizing political events of recent years and done the important job examining the response to it as a governmental and operational issue, instead of as a political one. That’s important because way too much important stuff these days gets bogged down in the red versus blue paintball match.

And, so, we are forced again to ask ourselves why this commission, which has done such a good job of being apolitical, would do something it had to know would likely fail.

The answer, of course, is politics.

To this point at the POEC, lawyers representing the federal government have been very effective at getting the microscope into institutional collapse pointed at a lot of other places than the federal cabinet room. As a result, most of the focus to this point has been with the Ottawa Police Service and Ottawa city hall. The inquiry is supposed to be looking into the federal government’s decision making and the actions it took once it invoked the Emergencies Act. Context is necessary for understanding why those things happened, but so far the inquiry has been heavy on context, less interested in its core mandate.

Premier Doug Ford, and various dramas around whether he would testify or not, are another part of that. Every day we’re talking about an Ottawa cop, or an Ottawa city councillor, or the premier of Ontario, means we’re not talking about the cabinet ministers who invoked the Act, froze bank accounts and called in the Mounties. This is handy, as evidence piles up that the Act’s invocation — which, I will note, I actually supported to end the border blockades — was being questioned by individuals as significant as the commissioner of the RCMP.

At the end of the day, we can debate whether Ford should or shouldn’t testify. But, the second he was served a summons, he had to refuse it. No premier could ever let the precedent stand that an elected member could be subpoenaed. It’s a direct legal attack on the legislative branch of government. It had to be rebuffed. You may prefer to think the premier is protecting himself and not the legislature. I submit to you that he can be, and is, doing both, from a tactic that is more about political theatre than legal exposition.

It’s not great politics. But it is politics.

And it’s a shame, because that’s one business the POEC wasn’t supposed to be in.