Canada's top court to hear appeal on whether or not to keep Doug Ford's mandate letters secret

·6 min read
The Ontario government used its final option to prevent disclosure of PC Leader Doug Ford's mandate letters in March by seeking leave to appeal to the Supreme Court of Canada.  (Justin Tang/The Canadian Press - image credit)
The Ontario government used its final option to prevent disclosure of PC Leader Doug Ford's mandate letters in March by seeking leave to appeal to the Supreme Court of Canada. (Justin Tang/The Canadian Press - image credit)

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.

Had Canada's top court refused to hear the case, the provincial government would have had to release Ford's 23 mandate letters  — which, combined, run about 150 pages — to CBC News today.

With today's decision, there's no chance of the mandate letters being made public before the Ontario election, now two weeks away on June 2.

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 Toronto 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.

WATCH | Ford says letters aren't being kept secret:

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.

'As clear and transparent as you can get,' says Ford

When asked why his government has kept up the fight to keep his mandate letters secret for four years on Thursday, Ford told CBC News "it's not secret."

"Everyone knows where we stand," said Ford. "I'm out here every single day, moving forward it's going to be very very clear, what we're doing. We're going to continue to build — build roads, hospitals, highways, schools. We're getting it done and it's going to be as clear and transparent as you can get."

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 statements issued Thursday, the provincial Liberal and Green parties questioned what exactly Ford is trying to keep out of the public eye.

"The only credible answer is that he knows what's hidden in those letters would lose him the election," the Liberal party statement reads. "It's the same reason he hides his candidates and orders them to refuse local debates. Because he knows they would lose their local elections if they were accountable to the public and the media."

Green Party Leader Mike Schreiner said the public deserves to know what direction Ford gave his cabinet ministers.

"Ford should have made the mandate letters transparent and public in the first place," said Schreiner's statement. "And the fact that Doug Ford is wasting taxpayer dollars fighting this in the courts is inappropriate and wasteful."

Ontario's New Democrats also called for the immediate release of the letters.

"Doug Ford's Conservative mandate letters should have been released publicly four years ago," the party said in a statement.

Ontario court previously ruled letters should be released

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.

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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."

Supreme court ruling will have 'major impact'

Turk argues the stakes remain high — even though the appeal will be heard — because the cabinet records exemption is one of the most common ways governments withhold information under access to information legislation.

"It will have a major impact," he told CBC News. "This is going to be a very important case for the public's right to information in this country, because the Supreme Court will be able to use this case to be clear about what it considers the proper boundaries for cabinet secrecy."

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.

"[Cabinet] discussion needs to be protected, their conclusions do not," said Turk. "To deny the cabinet's conclusions to the public is, in effect, denying the public the right to know what their government is going to be doing."

For Turk, the Ontario government's interpretation treats 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."

Justin Tang/The Canadian Press
Justin Tang/The Canadian Press

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.

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