The Supreme Court of Canada has agreed to hear an appeal from the Ontario government about whether Premier Doug Ford’s ministerial mandate letters are public information. In doing so, Canada’s highest court has ensured the marching orders Mr. Ford sent his newly elected cabinet ministers back in 2018 will continue to remain secret past the June 2 provincial election.
These letters, which are regularly released by governments in Canada, outline the policy priorities for each minister. When the Ford government declined to share them four years ago, the CBC filed a freedom-of-information request. It was rejected by the cabinet office, which cited an exemption that is supposed to protect sensitive cabinet deliberations.
Since then, the Ford government has on three occasions been ordered to make the 23 mandate letters public, first by the Information and Privacy Commissioner of Ontario in 2019, then in 2020 when the Divisional Court dismissed the province’s application for a judicial review, and finally by Ontario’s Court of Appeal in a 2-1 decision this past January.
In agreeing on Thursday to hear the case, the Supreme Court is delaying the implementation of that appeal court decision and weighing into an access-to-information fight that has been closely watched by government transparency advocates, journalists and politicians. At stake is the way government bodies are able to apply the so-called “cabinet records” exemption.
James Turk, the director of the Centre for Free Expression at Toronto Metropolitan University (formerly Ryerson University), said this exemption is one of the major ways governments are able to keep information from the public.
“I think it’s essential to democracy that members of cabinet be able to talk amongst themselves, to toss out ideas and brainstorm, without fear that they will be ridiculed or embarrassed,” he said.
But the tension lies in how far that blanket protection should go. Does it cover every policy document? Every recommendation? Every decision that comes out of cabinet?
“I would say no,” Mr. Turk said. “The risk is that cabinet secrecy gets used like a black hole, where everything that comes close to it can be swept in and shielded from the public. That’s an abuse of the proper intention of what it’s meant to protect.”
In taking on the case, the Supreme Court of Canada could more definitively set the boundaries for where the exemption applies.
Back in 2019, Ontario’s now-former Information and Privacy Commissioner, Brian Beamish, concluded that the Ford government had been too broad in its application of the exemption, which reads: “A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees.”
Mr. Beamish found that the mandate letters did not reveal “any discussions weighing or examining the reasons for or against a course of action with a view to making a decision. Further, they do not reveal any views, opinions, thoughts, ideas and concerns expressed by Cabinet members in the course of the deliberative process.”
In upholding that decision, the Ontario Court of Appeal concluded the letters “highlight the decisions the Premier ultimately made, they do not shed light on the process used to make those decisions, or the alternatives rejected along the way.”
But one of the three appeal justices took a different view. In a dissenting opinion, Justice Peter Lauwers wrote that it was the information commissioner who had overstepped. The purpose of the cabinet exemption is “to establish a robust and well-protected sphere of confidentiality within which Cabinet can function effectively,” Justice Lauwers wrote.
He concluded that Mr. Beamish’s interpretation undermined the intent of the legislation.
On the campaign trail, Mr. Ford was asked why the government has spent four years keeping the letters secret.
“You know it’s not secret,” the Progressive Conservative Leader said. “Everyone knows where we stand ... We’re getting it done and it’s going to be about as clear and transparent as you can get.”
His political opponents have used the case to paint the Ford government as secretive and wasteful.
Ontario Liberal Leader Steven Del Duca said in a statement on Thursday that Mr. Ford is fighting so hard because he doesn’t want the public to know what is in the letters, especially the ones relating to health and education. In a separate statement, Ontario Green Party leader Mike Schreiner questioned the cost of the protracted legal fight. “The fact that the Premier is wasting taxpayer dollars fighting this in the courts, to me is just inappropriate,” he said.
And, in its own statement, the Ontario NDP blasted the Ford government’s lack of transparency and also criticized the previous Liberal government. “When the Liberals released mandate letters they were just as phony as the Conservatives,” the statement said.
Justin Safayeni, a lawyer representing the CBC, said the case is an important legal one, but is also an example of Canada’s broken access-to-information system.
“What this case shows, in a pretty stark way,” Mr. Safayeni said, “is that just going through the access to information process to its fullest extent – with multiple levels of court review – can leave you in a situation where we are just a few weeks away from the next election and we still don’t have the mandate letters.”
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