Sarah Jama’s censure an ‘abuse of power,’ NDP tried to muzzle her: legal docs

Hamilton Centre Independent MPP Sarah Jama says the motion that effectively censured her at Queen’s Park is an “abuse of power” by the province and alleges that her then-party, the Ontario NDP, failed to support her right to free speech, forbade her from further comment and even accused her of being “disloyal.”

Two experts, meanwhile, say her legal challenge hinges on one pivotal question: What is the scope of parliamentary privilege?

The Oct. 23 motion in question, Motion 19, both formally disapproved of Jama’s statements about the Israeli government’s treatment of Palestinians and called on the speaker to not recognize her until a formal apology was made in the legislature, and her original statement was deleted on social media.

A notice of application for judicial review obtained by Global News calls Motion 19 “an abuse of power, made in bad faith and with intent to curtail Jama’s right to engage in political speech.”

The application seeks to have the censure decision quashed and to declare that the measures imposed on her by the motion violated her rights, among other items.

It also claims that the NDP failed to support her throughout the process, suggests that the party tried to silence her, and that she was even called “disloyal” when she issued a libel notice against the Premier over comments he made over the controversy. The allegations have not been proven.

Jama’s initial comments on Oct. 10 did not mention Hamas or the deadly Oct. 7 attack on Israel which killed at least 1,400 people. However, she did condemn Hamas about 24 hours later on X and apologized, stating that she understands “the pain that many Jewish and Israeli Canadians, including my own constituents, must be feeling.”

“To be clear, I unequivocally condemn terrorism by Hamas on thousands of Israeli civilians. I also believe that Israel’s bombardment and siege on civilians in Gaza, as was also noted by the United Nations, is wrong.”

Premier Doug Ford issued a statement accusing Jama of “a long and well-documented history of antisemitism,” adding that the Hamilton Centre MPP supports “the rape and murder of innocent Jewish people,” accusations that Jama threatened legal action over.

In the notice of application, her lawyers allege on her behalf that “her party declined to request the Premier’s post be taken down and an apology made to Jama.” It was at that point that she decided to issue the libel notice, the application reads, which prompted the NDP to accuse her of being “disloyal.”

The notice claims that the NDP instructed her “to stay away” from the legislature during the debate and that it “refused to challenge the untrue allegations made against her,” including that she had called for the elimination of the state of Israel, which the wording of the motion could be read as implying.

Additionally, she claims in the documents that she was forbidden by the NDP to issue a written statement “challenging the truth of the allegations made against her.”

A senior NDP spokesperson responded to the allegations saying, “MPP Stiles has already communicated to MPP Jama that respectfully, the Caucus disagrees with certain factual assertions set out in the application for judicial review. Given that the application is properly before the Divisional Court, the Caucus will not comment further on an ongoing proceeding.”

The allegations have not been proven in court.

Ford’s government voted 63-23 in favour of the censure motion with NDP members and Green leader Mike Schreiner voting against, and Liberals abstaining.

On Saturday, Ontario NDP provincial council, which governs the party between conventions, approved a motion to fight the legislature’s official censure of the former NDP MPP, the Trillium reported.

In a statement to Global News, NDP leader Marit Stiles said she reached out to Jama last week to reaffirm her party’s “opposition to Ford’s extreme and antidemocratic censure.”

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Jama expulsion causing divisions among NDP

Stiles said she also offered to connect Jama with senior team members who have been exploring strategies to fight the censure, though she said a majority PC government means there are limited options.

On Saturday, Jama said on X that Stiles had not reached out “around reconciliation” but that she was “down to have a conversation about what happened” regarding her removal from caucus.

The Hamilton Centre riding association also presented a motion to the provincial council to invite Jama back to the caucus, but it was defeated in a vote of 130-60.

Jama’s lawyers said she is exhausting all legislative remedies before taking to the courts, including sending a formal request to legislative Speaker Ted Arnott to rule Motion 19 as out of order.

The office of the Speaker confirmed in an email he had received the request but said “he does not have the authority to overturn an Order of the House.” The Legislative Assembly of Ontario also explained that the censure could “only be revised or revoked by a subsequent order.”

In a Nov. 10 open letter to Premier Doug Ford, Jama also asked Ford to remove the censure. Ford has not responded to Jama and his office did not respond to a request for comment.

Meanwhile, a spokesperson for Government House Leader and Minister of Legislative Affairs, Paul Calandra, who is also named as a respondent in the notice of application, said only that “as the matter is presently before the courts, we cannot comment at this time.”

Jama’s lawyers argue her statements are protected by the Canadian Charter of Rights and Freedoms, but McMaster political science professor Greg Flynn, who reviewed the notice, said some of her team’s arguments may not hold up in court.

“The application itself seems to reach and perhaps overreach in a couple of circumstances but in other cases I think it’s well-grounded in at least my understanding of the law and more importantly, the practices of democracy,” Flynn said.

While Flynn believes the censure itself may fall within parliamentary privilege, he said the additional provision that silences Jama in the legislature may fall outside that and be “subject to judicial consideration.” He added that the abuse of power argument is also difficult to prove because “there would have to be some demonstration of malice there.

“The fact that at least some members of parliament decided not to vote on (the motion) would suggest that maybe the legislature acting as a whole didn’t do so in a way that had ulterior motives,” he said.

However, he believes the argument is “well-grounded” in its challenge “to the exercise of parliamentary privilege writ large.”

Parliamentary privilege as a constitutional principle is not subject to court review, except when determining what the scope of parliamentary privilege is, he said.

Peter Graefe, a political science professor at McMaster University said he thinks the fight will come down to the question: “What is the scope of parliamentary privilege?”

Graefe said this case is particularly interesting because the censure decision “runs contrary to the fundamental principles of parliament. Namely, that the right of parliamentarians to speak and participate in the debates comes from the fact of their election and that it shouldn’t be something easily taken by a passing majority simply because they don’t like what that person has said.”

But, Graefe said, he thinks Jama’s case will be a difficult one to make because “courts, generally, give a wide recognition of parliamentary privilege.”

With files from Global News’ Jacquelyn LeBel.