The Supreme Court of Canada has ruled in favour of the Ford government in its battle to keep its 2018 mandate letters filed away from public disclosure and under rules protecting the details around cabinet meetings.
The decision from the Supreme Court of Canada was unanimous, finding Ontario’s Information and Privacy Commissioner (IPC) was too narrow in its ruling over the initial appeal.
“The appeal should be allowed and the order of the IPC set aside,” Canada’s top court found.
The court’s decision was released on Friday morning, marking the end of a years-long fight over the 2018 documents which has spanned two terms of government.
Mandate letters are given to cabinet ministers at the beginning of their terms. They lay out the premier’s priorities and expectations for their files.
The court’s decision found IPC failed to “give meaningful weight to the legal and factual context, including traditions and constitutional conventions concerning Cabinet confidentiality, the role of the Premier, and the fluid, dynamic nature of the Cabinet decision-making process.”
The ruling called the Ontario privacy watchdog’s interpretation “unreasonable” and said the letters would allow people to infer what had been discussed during cabinet meetings. The decision highlighted the importance of cabinet confidentiality in how government functions, allowing for frank conversations between ministers as policy is decided.
Shortly after Ford was first elected, CBC News filed a request under freedom of information laws to obtain copies of the mandate letters, which the government had not made public. That request was denied on the grounds the mandate letters would “reveal the substance of deliberations of the Executive Council or its committees.”
The Information and Privacy Commissioner disagreed with the decision, finding the letters themselves would not reveal “the actual substance” of cabinet conversations. The commissioner said the letters didn’t say anything about the conversations or opinions shared during cabinet meetings but instead represented the result of those meetings.
In September, Global News obtained and verified copies of the 2018 mandate letters, releasing them as a series titled Mandated.
The letters promised to hold cabinet ministers accountable and included various instructions such as to “protect the Greenbelt,” “fundamentally” review Metrolinx and post savings by the second year of government.
Freedom of information requests allow for the release of a range of government decisions, documents and communications, with certain exceptions. The Supreme Court summarized the process as “a balance between the public’s need to know and the confidentiality the executive requires to govern effectively” in its Friday ruling.
After the Information and Privacy Commissioner decision, the Ford government tried two more appeals — to a divisional court and the Ontario Court of Appeal. Both failed.
That prompted Ontario to take its case to the Supreme Court.
The question the Supreme Court had to settle was essentially: are the mandate letters cabinet documents protected by the strictest rules on confidentiality? Or should they be considered more general government work?
The latter are covered by more lax rules that allow them to be made public as long as they don’t violate certain conditions such as revealing advice to the government or giving away details that could damage the economy.
In its decision, Canada’s top court said the mandate letters “are communications between the Premier and his Cabinet colleagues relating to policy priorities that are or will be before Cabinet” and can’t be ‘written off as mere ‘topics’ like general items on an agenda.”
The judgement also found that, as the head of cabinet, Ford’s deliberations “cannot be artificially segmented from those of Cabinet.”
Those discussions within cabinet are protected, the court said, “as a matter of constitutional convention.”
The Supreme Court said that the “dynamic and fluid nature” of cabinet deliberations means “not all stages of the process take place sitting around the Cabinet table behind a closed door.”
The scope of cabinet privilege, key to the ruling, is “a question of central importance to the legal system” in Canada, the Supreme Court said.
A panel of seven judges heard arguments from both sides in April 2023.
Ontario’s information and privacy commissioner has said the Supreme Court ruling Friday morning could set a significant precedent for future cases involving access to such records.
In a statement to Global News, the CBC said it was “disappointed” in the court’s decision.
“Nonetheless, we appreciate the Supreme Court has now provided clarity in the law,” a spokesperson said.
“CBC News will continue to fight for open access to government-held information. We believe the media’s coverage of the Ontario Greenbelt controversy, which included information the provincial government sought to keep private, illustrates the high public value of transparency and open access to information.”
Jeffrey Dvorkin, a senior fellow at Massey College and the former head of journalism at the University of Toronto’s Scarborough campus, said the ruling would give the government a boost, for now.
“It is a big win for them in the short term,” he told Global News.
“I think in the long-term it only serves to undermine the public’s faith in what the government is going to be doing. It just raises suspicion that government is not doing this for the benefit of the citizens.”
Responding to the ruling, Ontario NDP and Official Opposition Leader Marit Stiles said the decision is not a “win” for provincial taxpayers.
“This government wasted five years and huge amounts of taxpayer dollars to keep these documents secret,” Stiles said.
“Not only did this government deny the public access to these letters, they took it all the way to the Supreme Court.”
Ontario Liberal Leader Bonnie Crombie called on the Ford government to release the cost of the mandate letters legal fight and accused it of running an administration “cloaked in secrecy.”
Crombie said, if elected premier, she would release her mandate letters to ministers.
Mike Schreiner, Ontario Green Party Leader, said the ruling was “disappointing” and “sets a poor precedent for democracy in Ontario.”
— with files from The Canadian Press