The Supreme Court of Canada will release its decision Thursday on whether or not it will hear the Ontario government’s appeal to try and keep PC Leader Doug Ford’s mandate letters secret.
Mandate letters traditionally lay out the marching orders a premier has for each of his or her ministers after taking office — and have been routinely released by governments across the country.
Ford’s government, however, has been fighting to keep his mandate letters from the public for nearly four years. CBC News filed a freedom of information request for the records in July 2018, shortly after Ford took office. The government denied access in full, arguing the letters were exempt from disclosure as cabinet records.
Despite being ordered to release the records by Ontario’s former information and privacy commissioner in 2019 and having its appeals of that decision dismissed at every level of court so far — the province utilized its final option to prevent disclosure in March by seeking leave to appeal to the Supreme Court of Canada.
Letters could be released today
If Canada’s top court refuses to hear the case, the provincial government will have to release Ford’s 23 mandate letters — which combined run about 150 pages — to CBC News today. But if the Supreme Court agrees to hear the appeal, there’s no chance of the mandate letters being made public before the Ontario election, now two weeks away on June 2.
This story will be updated after the Supreme Court releases its decision at 9:45 a.m.
Delaying the release of the mandate letters until after the election is the only reason James Turk, director of Toronto Metropolitan University’s Centre for Free Expression, can think of to explain why the province appealed again.
“Whatever is in the mandate letters, they don’t want it out,” Turk told CBC News after the application was filed. “It’s a total waste of money — they’ve lost at every level.”
In the government’s application, counsel argued the Supreme Court should hear the case because it raises issues of public importance, such as what constitutes cabinet deliberations.
“This will also be the first time this honourable court will consider the constitutional role of the premier in setting cabinet’s agenda and address whether the premier’s deliberations can reveal the substance of deliberations of cabinet,” the notice of application reads.
Ontario’s Freedom of Information and Protection of Privacy Act states that any records that “would reveal the substance of deliberations of the executive council or its committee” are exempt from disclosure under what’s commonly referred to as the cabinet record exemption.
But in a 2-1 ruling released in January, the Ontario Court of Appeal found that both the privacy commissioner’s original decision, and the Divisional Court’s review of it, were reasonable in finding that mandate letters do not reveal the substance of cabinet deliberations and so must be disclosed.
“The letters are the culmination of [the] deliberative process,” wrote Justice Lorne Sossin.
“While they 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.
“Accordingly, the letters do not threaten to divulge cabinet’s deliberative process or its formulation of policies.”
Access to other records at stake
Even if the Supreme Court decides to hear the government’s appeal and Ford’s mandate letters are shielded from release before the election, Turk argues the stakes remain high.
“[The province is] treating cabinet secrecy like this big black hole, where anything that comes anywhere close to the cabinet falls into the black hole and can be kept from the public for years,” Turk said.
“If [the Supreme Court] accepts the argument the province is putting forward, then democracy in Canada is going to be much the worse as a result.”
It’s unclear how many tax dollars and government resources have gone toward denying the public access to the mandate letters.
For more than two years, CBC News has been trying to obtain information on how much time Crown attorneys have devoted to the mandate letter case. The Ministry of the Attorney General has denied two freedom of information requests, claiming attorney-client privilege.
The latest request, which asked for the total number of hours counsel have spent on the case from July 2018 to July 2021, is now in the adjudication stage with the privacy commissioner.
‘Keep them to ourselves as long as possible’
Documents obtained by CBC News concerning its original freedom of information request for the mandate letters make it clear that senior officials inside the Ford government planned to keep the records from public view from the outset.
In an email dated July 31, 2018, the then-executive director of policy to the premier, Greg Harrington, says, “here’s the letters. As I said, the intention is to keep them to ourselves as long as possible.”
Ford issued a new set of mandate letters to his cabinet ministers in the fall of last year.
CBC News filed a freedom of information request for the records, which was denied.
The decision cited the cabinet record exemption in the provincial privacy act, along with three new exemptions for advice to government, solicitor-client privilege and records that “affect the economic or other interests of Ontario.”
CBC News has appealed the decision to the privacy commissioner.