Future access to information could be at stake, as top court mulls Doug Ford's mandate letter appeal

The Supreme Court of Canada today heard the Ontario government's appeal to try and keep Premier Doug Ford's mandate letters secret. 

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.

Ford's government, however, has been fighting to keep his mandate letters from the public since shortly after he was first elected nearly five years ago. CBC Toronto 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.

But Ontario's former information and privacy commissioner disagreed and ordered the government to release the letters in 2019. The province has since lost appeals of that decision in Divisional Court and at the Ontario Court of Appeal.

Ford's government was granted leave to appeal to Canada's top court — its final option to prevent disclosure — last May.

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 public disclosure under what's commonly referred to as the cabinet record exemption.

The interpretation of that exemption is at the heart of the mandate letter case and could have a profound impact on the future of public access to information in Canada that goes far beyond the letters themselves.  

The privacy commissioner's initial decision, and all of the court rulings so far in this case, have supported a narrower interpretation of the boundaries of cabinet secrecy, which differentiates between deliberations and their results. But Ontario's interpretation is broad and could exempt any records falling under the umbrella of a topic cabinet discussed or might discuss in the future. 

Several organizations which intervened in the Supreme Court case argue that if the Ontario government's broad interpretation of what should be considered a cabinet record is 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 the government accountable. 

Exemption could become 'black hole' for access

"It's like putting up a huge shield around what the government is doing and saying the public has no right to know any of that," said James Turk, director of the Centre for Free Expression at Toronto Metropolitan University.

"If the government of Ontario wins on this, it will turn the cabinet confidences exclusion into a black hole in which just an enormous amount of material relevant to the public understanding what governments are doing can be properly excluded from access to information."

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 will 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 veins of arguments, supporting a narrower interpretation of the exemption.

"If the government wishes to expand the scope of the cabinet exemption from how it is currently operating, as adjudicated by the IPC, it can do that by introducing legislation," said Sean Hern, lawyer for the B.C. Freedom of Information and Privacy Association.

Ontario's submissions argue 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."

"This case is of significance for Ontario, as it is the first time this honourable court will be considering the scope of the cabinet records exemption," Crown lawyer Judie Im said in the hearing.

"The letters were placed on a cabinet agenda and distributed at a cabinet meeting. It is Ontario's position that the letters are plainly records that would reveal the substance of deliberations of the premier and cabinet and hence exempted."

At a news conference Tuesday afternoon, Ford told reporters he didn't read the mandate letters out in cabinet.

"What was in the mandate letters is what we said during the election," said Ford. "I was so transparent; I told everyone what we were going to do."

Past decisions support narrow interpretation

Instead of revealing the substance of deliberations, former Ontario privacy commissioner Brian Beamish determined the mandate letters were the end point, or product, of the premier's deliberations.

"To a great extent, the mandate letters bear a close resemblance to the detailed policy platforms often produced by political parties during election campaigns," said Beamish in his 2019 ruling. 

In January 2022, the Ontario Court of Appeal found in a 2-1 ruling that Beamish's original decision and the Divisional Court's subsequent review were reasonable. 

"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."

But one member of the three judge panel at Ontario's top court disagreed. Justice Peter Lauwers wrote a dissent arguing cabinet requires a "robust and well-protected sphere of confidentiality" to function effectively and the original decision breached that convention by ordering the release of the letters. 

Cabinet privilege concerns

Questions and comments from many of the Supreme Court justices during the hearing seemed to indicate they also had similar concerns about the importance of protecting cabinet confidences, the convention of cabinet secrecy and the scope of what the Ontario Legislature originally intended to protect with the exemption in the province's Freedom of Information and Protection of Privacy Act.

Justice Andromache Karakatsanis questioned whether there was a need to get into deliberations versus outcomes and other specific arguments, given those concerns about the IPC decision. 

"Do we actually have to engage with those kinds of specific questions?" she said. "If in fact there's no meaningful engagement with the entire purpose of carving out an exemption for something as fundamental as cabinet privilege."

In terms of the letters themselves, Justice Malcolm Rowe said the IPC decision had a "very narrow notion of cabinet confidence," which he likened to communications around the cabinet table itself.

"Everything of significance at some point finds its way to cabinet, and the mandate letters say these are the matters of significance," he said. 

Alberta, B.C. support broad cabinet protections

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

"This is nothing new and will not dramatically change transparency. The usual means to learn about and engage in discussion of government policy will continue to apply," said Alberta Crown lawyer Sean McDonough.

"In the event that the public is concerned that cabinet is somehow abusing the tradition and convention of secrecy, their remedy is at the ballot box."

B.C.'s factum also argues for "widely protecting" cabinet communications, including "topics of discussion at cabinet and committee meetings."

The fact that other provinces are backing Ontario's interpretation is indicative of a bigger, systemic problem, according to Cara Zwibel, director of the fundamental freedoms program at the Canadian Civil Liberties Association.

"It just highlights how pervasive this issue is that governments at all levels, regardless of the specifics of the legislation, are making attempts to broaden the scope of what they can hold back and to narrow the scope of what Canadians are entitled to receive," said Zwibel.

"And [governments] have the ability to tie up the process in a way that kind of renders the whole purpose moot, because by the time you get the information, it's no longer of much value."

Documents obtained by CBC Toronto 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 writes: "Here's the letters. As I said, the intention is to keep them to ourselves as long as possible."

Cost of fight still unclear 

It's unclear how many tax dollars and government resources have gone toward denying the public access to the mandate letters.

For more than three years, CBC Toronto 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.

In July 2022, an adjudicator with Ontario's Office of the Information and Privacy Commissioner (IPC) determined that information was not protected by attorney-client privilege, and told the government to release the total number of hours Crown counsel spent working to keep the letters from the public from July 2018 to July 2021.

But instead of releasing the number of hours, the province filed an appeal to Ontario's Divisional Court in August of last year.

A judicial review hearing for that second legal fight concerning the mandate letters has been scheduled for June 20.