Supreme Court rules Premier Doug Ford's mandate letters to be kept secret

The Supreme Court of Canada has ruled that the Ontario government does not have to disclose Premier Doug Ford's mandate letters in a unanimous decision issued Friday.

"The Letters are revealing of the substance of Cabinet deliberations, both on their face and when compared against what government actually does," wrote Justice Andromache Karakatsanis in the majority decision.

Mandate letters traditionally lay out the marching orders a premier has for each of their ministers after taking office — and have been routinely released by governments across the country.

But the Ford government went to great lengths to keep the premier's 2018 letters secret by appealing court orders to disclose the records all the way up to Canada's top court, which heard the province's appeal last April. Despite those efforts, a copy of all 23 of Ford's 2018 mandate letters was reportedly leaked to Global News in September of last year.

CBC Toronto originally filed a freedom of information request for the records in July 2018. The government denied access in full, arguing the letters were exempt from disclosure as cabinet records.

Ontario's Freedom of Information and Protection of Privacy Act (FIPPA) states that any records that "would reveal the substance of deliberations of the executive council or its committee" are exempt from public disclosure under what's commonly referred to as the cabinet record exemption.

The interpretation of that exemption was at the heart of the mandate letter case. Several organizations intervened before the top court to argue that if the Ontario government's interpretation was adopted it would vastly expand the scope of records the government can keep secret from the public in a way that would undermine democracy and impair the public's ability to hold governments accountable.

James Turk, director of the Centre for Free Expression at Toronto Metropolitan University, says the Supreme Court mandate letter decision 'broadens enormously' the discretion governments have when it comes to denying access to information. (Zoom)

"The only losers in this are the public," said James Turk, director of the Centre for Free Expression at Toronto Metropolitan University.

"A democratic society is dependent on an informed public that can hold its government accountable. And this makes it possible for governments in Canada to withhold information and disallow the public from knowing essential decisions they've made."

The privacy commissioner's initial decision, and all of the court rulings prior to the latest from the Supreme Court, supported a narrower interpretation of the boundaries of cabinet secrecy, which differentiates between deliberations and their results.

Supreme court quashes initial decision

But the Supreme Court disagreed. In her majority decision, Justice Karakatsanis found former IPC Commissioner Brian Beamish's initial decision, which determined the mandate letters were not cabinet records, both unreasonable and wrong.

"Deliberations' understood purposively can include outcomes or decisions of Cabinet's deliberative process, topics of deliberation, and priorities identified by the Premier, even if they do not ultimately result in government action," wrote Karakatsanis.

In addition to laying out the scope of what should be considered "the substance of deliberations," Karakatsanis wrote about the significance of Cabinet confidentiality as a "constitutional convention."

The Supreme Court's ruling comes after years of decisions and appeals. (Sean Kilpatrick/The Canadian Press)

"FIPPA's Cabinet records exemption was a critical part of the balance the legislature struck between public access to information and necessary spheres of government confidentiality," she wrote.

"The IPC failed to give meaningful weight to the legal and factual context, including traditions and constitutional conventions concerning Cabinet confidentiality."

In the end, Karakatsanis found that the letters themselves along with the representations of cabinet office were "clearly sufficient" to find that the records fell within the scope of the cabinet record exemption in FIPPA.

Karakatsanis also ordered CBC to pay costs for the appeal to the Ontario government.

In a statement, a CBC spokesperson said "we are disappointed in today's decision," given the broadcaster's success in the case before the IPC, Divisional Court and the Ontario Court of Appeal.

"Nonetheless, we appreciate the Supreme Court has now provided clarity in the law. CBC News will continue to fight for open access to government-held information," said CBC spokesperson Chuck Thompson.

"We believe the media's coverage of the Ontario Greenbelt controversy, which included information the provincial government sought to keep private, illustrates the high public value of transparency and open access to information."

Decision likely to impact future access to information

Justice Suzanne Côté wrote a concurrent decision for the case, which agreed that the mandate letters are exempt from disclosure but disagreed about the standard of review. Where the majority found that "the same conclusion follows regardless of whether the standard of review is correctness or reasonableness," Côté found the standard of review should just be "correctness."

Her argument centered around the need for a "single determinate answer" on an issue as significant as the scope of Cabinet privilege.

In a statement, the Office of the Information and Privacy Commissioner of Ontario said it respects the Supreme Court's decision "and will be considering the significance of this precedent and its broader implications for future cases involving access to cabinet records."

The Ontario government's submissions in the case had argued the information and privacy commissioner took a "narrow and restrictive approach" interpreting "substance of deliberations," which amounts to "an unwarranted incursion into the functioning of cabinet."

CBC Toronto reached out to the province for comment on the Supreme Court decision but has yet to receive a response.

The attorneys general for both Alberta and B.C. also intervened in the case to support Ontario's broad interpretation of the cabinet record exemption.

The Supreme Court's decision could have a profound impact on the future of public access to information in Canada that goes far beyond access to the letters themselves. Turk, from the Centre for Free Expression, believes cabinet deliberations need to be protected — but also said the decision "broadens enormously" the discretion governments have when it comes to denying access to material under that umbrella.

"It's a very disturbing decision," he said.

"In the case of these mandate letters, they never came before cabinet, they were never discussed by cabinet, and now they can be protected because cabinet may deal with issues related to them."

The Centre for Free Expression, Canadian Journalists for Free Expression, the Canadian Association of Journalists and Aboriginal Peoples Television Network (APTN) intervened in the case as a group. They argued against the government's interpretation of the legislation, saying it would lead to "absurd results" including keeping secret "any record that revealed that a particular topic had been identified by the premier as a policy priority."

The Canadian Civil Liberties Association and B.C. Freedom of Information and Privacy Association also intervened with similar arguments, supporting a narrower interpretation of the exemption.

Opposition parties call for transparency

Ontario NDP Leader Marit Stiles blasted the province's fight to keep the mandate letters secret at a news conference Friday morning.

"This is not a win for the people of Ontario," said Stiles. "But what I think is the most disappointing is actually that the government fought so hard to hide this information."

Marit Stiles, leader of the Ontario NDP, said the Supreme Court decision on the mandate letters 'doesn't change the premier's obligation to be transparent with the public or accountable for his actions.' (Nathan Denette/The Canadian Press)

Despite the ruling allowing the letters to remain secret, Stiles said the decision "doesn't change the premier's obligation to be transparent with the public or accountable for his actions."

In a statement, Ontario Liberal Leader Bonnie Crombie called on Ford's government to disclose how much the legal fight for the mandate letters cost taxpayers.

Ontario Green Party Leader Mike Schreiner said the public is entitled to transparency and accountability.

"This is a disappointing ruling that sets a poor precedent for democracy in Ontario," said Schreiner in a statement.