The Ontario government has asked Canada’s top court to weigh in on the province’s nearly four-year fight to keep Premier Doug Ford’s mandate letters to his cabinet ministers 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 since shortly after the premier took office in June 2018.
Despite being ordered to release the records by Ontario’s former information and privacy commissioner and having its appeals of that decision dismissed at every level of court so far, the province has decided to use its final option to prevent disclosure: the Supreme Court of Canada.
Crown attorneys with the Ministry of the Attorney General filed their application to the higher court Monday for leave to appeal the Ontario Court of Appeal’s decision to dismiss the Ford government’s case.
The country’s highest court can refuse to hear the case. If it does, then the government will have to release the mandate letters.
But if the Supreme Court agrees to hear the appeal, there’s virtually no chance of the mandate letters being made public before the Ontario election in June.
Delaying the release of the mandate letters until after the election is the only reason James Turk, director of Ryerson University’s Centre for Free Expression, can think of to explain the decision to appeal again.
‘It’s a total waste of money’
“Whatever is in the mandate letters, they don’t want it out,” said Turk. “That’s the only thing I can imagine, because it’s a total waste of money – they’ve lost at every level.”
In the government’s application, Crown attorneys argue the Supreme Court should hear the case because it raises issues of public importance like 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,” reads the notice of application.
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.
The province used that exemption to deny access to Ford’s 23 mandate letters when CBC News first requested the records in the summer of 2018.
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
The Centre for Free Expression, Canadian Association of Journalists, Canadian Journalists for Free Expression, Aboriginal Peoples Television Network, and News Media Canada were granted status in the case to argue about the dangers of what they consider a broadening of the interpretation of the cabinet record exemption by the province.
“[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.
Regardless of whether the mandate letters are made public before the election, Turk argues the threat of the government’s broad interpretation could block access to other records in the future.
“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,” he said.
Ford issued a new set of mandate letters to his cabinet ministers in the fall of last year.
CBC News filed an access-to-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.
Cost to deny access unknown
It’s unclear how many tax dollars and government resources have been spent trying to deny 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 access-to-information requests, claiming attorney-client privilege.
The latest access request, which asked for the total number of hours Crown attorneys have spent on the case from July 2018 to July 2021, is now in the appeals stage with the privacy commissioner.
Documents obtained by CBC News concerning its original access-to-information request for the mandate letters make it clear that senior officials inside the Ford government planned to keep the records from public view.
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.”