Doug Ford does not need to make 2018 mandate letters public, Supreme Court of Canada rules

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Cabinet secrecy is vital to democracy, and trumps the public’s right to obtain documents under freedom of information laws, the Supreme Court of Canada said Friday in ruling that Ontario Premier Doug Ford has the legal authority to keep his mandate letters for cabinet ministers confidential.

Ministerial mandate letters, which instruct cabinet members on priorities, have been made public in most provinces since Prime Minister Justin Trudeau released his first mandate letters after being elected in 2015.

But when Mr. Ford came to power in 2018, he declined to make his letters to his 23 ministers public. The CBC applied for access to the letters under the province’s freedom of information law, which like similar legislation across Canada exempts records that reflect “the substance of deliberations” at cabinet or its committees.

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The province’s Freedom of Information and Privacy Commissioner ruled the letters were just “topics” or outcomes of the Premier’s deliberative process, and therefore the exemption did not apply. He ordered the letters released. Two levels of courts upheld his ruling, by a cumulative total of five judges to one. The Ontario government appealed to the Supreme Court.

Media groups had looked to the court’s ruling to give new life to embattled freedom of information systems across the country. A coalition of media organizations told the court that these access to information laws foster transparency and public debate. Such laws allow anyone to request documents from public institutions when they are otherwise confidential.

But the court, which in 2017 preserved the secrecy of its own deliberations, creating a 50-year embargo on correspondence among judges discussing cases, sent a strong message on the need in some contexts to protect confidentiality.

Ontario’s law recognizes that “other weighty public interests – whether national security, personal privacy, or the confidentiality of Cabinet deliberations – are important enough to outweigh the public’s interest in access to information,” Justice Andromache Karakatsanis wrote in a 7-0 ruling. She is a former cabinet secretary and clerk to the executive council in Ontario. Justice Malcolm Rowe held the same roles in Newfoundland and Labrador.

The ruling was met with disappointment by advocates for stronger protections for the public’s access to information held by government.

David Loukidelis, a former information commissioner and former deputy attorney-general in British Columbia, called the decision an “ill-founded setback for the vital public interest in knowing what our elected officials have in store for us.”

Jason Woywada, executive director of the Freedom of Information and Privacy Association, said the decision was a “sad day for transparency.”

“Our gut reaction is that this is a horrible, horrible decision,” he said. “This was the worst-case scenario.”

Premier Doug Ford declined to comment. New Democrat Leader Marit Stiles said the public should not have to fight their government for transparency. Liberal Leader Bonnie Crombie promised to release mandate letters if elected. Green Party Leader Mike Schreiner said the ruling set a “poor precedent for democracy in Ontario.”

Last summer, The Globe and Mail launched its Secret Canada project, an investigation into the state of Canada’s freedom of information systems. The examination found that public institutions across the country are routinely breaking these laws by overusing redactions, violating statutory time limits and claiming “no records” exist when they do.

And these organizations face few – if any – consequences for ignoring the precedents set by courts and information commissioners.

The Supreme Court said the ruling of then-information commissioner Brian Beamish in 2019 was unreasonable, in part because it did not reflect the importance of the constitutional tradition of cabinet secrecy.

The commissioner’s descriptions of the letters were “beside the point,” the court said, because they relied on “an artificial dichotomy” between the Premier’s deliberative process, and the rest of cabinet’s, contradicting past precedent and running counter to the Premier’s role as first minister in cabinet.

“Given the key role Cabinet confidentiality plays in the proper functioning of our Westminster system of government, cases about its proper scope raise important issues for the stability and legitimacy of our democracy,” Justice Karakatsanis wrote.

The CBC said it will continue to fight for open access to information held by government. Ontario’s Office of the Information and Privacy Commissioner said it respects the ruling and will consider its implications for future cases involving cabinet records.

Vincent Gogolek, a retired lawyer and freedom of information advocate, said the Supreme Court has effectively rewritten the law across Canada when it comes to cabinet secrecy by saying that its core purpose was to “promote the efficiency of the collective decision-making.” He warned that the efficiency and effectiveness arguments will now be raised by governments to deny access.

“You shouldn’t just be able to load a bunch of documents on a trolley, run them through the cabinet room and suddenly they’re magically exempt from release.”