The Supreme Court of Canada will hear the Ontario government’s appeal on whether or not it will be able to keep PC leader Doug Ford’s mandate letters secret.
If Canada’s highest court had refused to hear the case, the provincial government would have had to release Ford’s 23 mandate letters, which, combined, are about 150 pages long, to CBC News today.
With today’s decision, there is no chance that the mandate letters will be made public before the Ontario election, now two weeks from now on June 2.
Mandate letters traditionally set out the marching orders a prime minister has for each of his ministers after taking office, and governments across the country have routinely issued them.
The Ford government, however, has been fighting to keep its mandate letters from the public for nearly four years. CBC Toronto filed a freedom of information request for the records in July 2018, shortly after Ford took office. The government denied access entirely, arguing that 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 its appeals of that decision having been dismissed at every level of court thus far, the province used its last resort to prevent disclosure. in March by requesting leave to appeal to the Supreme Court of Canada.
Delaying the release of the mandate letters until after the election is the only reason James Turk, director of the Center for Freedom of Expression at Metropolitan University of Toronto, can think of for why the province appealed again.
“Whatever is in the mandate letters, they don’t want it,” Turk told CBC News after the request was filed. “It’s a total waste of money – they’ve lost on every level.”
The Ontario court previously ruled that the letters must be published
In the government’s request, the lawyer argued that the Supreme Court should hear the case because it raises questions of public importance, such as what constitutes cabinet deliberations.
“This will also be the first time that this honorable court will consider the prime minister’s constitutional role in setting the cabinet’s agenda and address whether the prime minister’s deliberations may reveal the substance of the cabinet’s deliberations,” the notice read. of request.
The Ontario Freedom of Information and Privacy Protection Act states that any record that “reveals the substance of the deliberations of the executive council or its committee” is exempt from disclosure under what is commonly known as the cabinet search exemption. .
But in a 2-1 ruling published 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 determining that the mandate letters were not they reveal the essence of the cabinet’s deliberations and therefore must be revealed.
“The letters are the culmination of [the] deliberative process,” Judge Lorne Sossin wrote.
“While they highlight the decisions ultimately made by the prime minister, they do not shed light on the process used to make those decisions or the alternatives rejected along the way.
“Consequently, the letters do not threaten to disclose the cabinet’s deliberative process or its policymaking.”
Access to other records in game
Before the Supreme Court decision was made, Turk argued that the stakes were high even if the appeal was heard.
“[The province is] treat cabinet secrecy like this big black hole, where anything that comes close to the cabinet falls into the black hole and can be hidden from the public for years,” Turk said.
“Yes [the Supreme Court] If you accept the argument the province makes, then democracy in Canada will be much worse as a result.”
It is unclear how much tax money and government resources have gone into denying public access to mandate letters.
For more than two years, CBC News has been trying to get information on how long Crown lawyers have spent on the injunction letter case. The Public Ministry has denied two freedom of information requests, alleging attorney-client privilege.
The latest request, which asked for the total number of hours the lawyer spent on the case from July 2018 to July 2021, is now in the adjudication stage with the privacy commissioner.
‘Save them to us as long as possible’
Documents obtained by CBC News regarding its original freedom of information request for the mandate letters make clear that top officials within the Ford administration planned to keep the records out of public view from the start.
In an email dated July 31, 2018, the Prime Minister’s then-executive director for policy, Greg Harrington, says: “Here are the letters. As I said, the intention is to keep them to ourselves for 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 search exemption in the provincial privacy law, along with three new exemptions for government advice, attorney-client privilege, and records that “affect the economic or other interests of Ontario.”
CBC News has appealed the decision to the privacy commissioner.