The Ford government doesn't have to release its mandate letters to ministers, the Supreme Court has ruled.
Friday’s unanimous decision said the letters would reveal the "substance of cabinet deliberations," which is "protected as a matter of constitutional convention."
The ruling could have far-reaching implications for other areas of cabinet secrecy, including the RCMP investigation into the government’s Greenbelt scandal, one expert in free expression told The Trillium.
In 2018, CBC News filed a freedom of information request for the 23 mandate letters Premier Doug Ford gave his new ministers. Cabinet Office denied the request and CBC appealed to the Information and Privacy Commissioner (IPC), who ordered their release. The government then appealed the decision to the Divisional Court and Court of Appeal, but both sided against the government.
The Supreme Court, however, sided with it. As a result, the government won't be forced to release its mandate letters.
However, the 2018 mandate letters are already public. They were leaked to Global News last year and can be read here.
Mandate letters had historically been kept from public view, but that changed when former premier Kathleen Wynne published her ministerial marching orders. Under Justin Trudeau, the federal Liberals kept that practice alive after winning government in 2015.
Freedom of information legislation attempts to strike a balance between "the public's need to know and the confidentiality the executive requires to govern effectively," the judges wrote. "Both are crucial to the proper functioning of our democracy."
Cabinet secrecy is necessary as it's a "precondition of responsible government." It promotes honest deliberation around the cabinet table, ministerial solidarity, and efficient decision-making.
"Collective ministerial responsibility requires that ministers be able to speak freely when deliberating without fear that what they say might be subject to public scrutiny," the judges wrote. "This is necessary so ministers do not censor themselves in policy debate, and so ministers can stand together in public, and be held responsible as a whole, once a policy decision has been made and announced."
Early disclosure of policy priorities “is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness.”
At the heart of the case was whether disclosing the mandate letters would "reveal the substance" of talks around the cabinet table, which are protected under freedom of information legislation and as a matter of constitutional principle.
The government argued that although mandate letters may be seen as a final product, they inherently reveal the "substance of future cabinet deliberations because many priorities outlined in the letters require deliberation by cabinet and its committees before implementation" and should be kept private.
The IPC disagreed and ordered their release. It held that the letters weren't protected "because nothing suggested they were intended to serve, or served, as the basis for discussions by cabinet as a whole."
Canada's top court disagreed with the IPC's ruling.
"The mandate letters reflect the view of the premier on the importance of certain policy priorities and mark the initiation of a fluid process of policy formulation within cabinet. The letters are revealing of the substance of cabinet deliberations," the judges wrote.
James Turk, the director of the Centre for Free Expression at Toronto Metropolitan University, said the ruling is a landmark case.
It "dramatically increases the zone of discretion that a government has as to what it's going to withhold from the public. It enables them to withhold a huge amount of additional material from the public, much of which would reveal nothing about cabinet discussions or deliberations," he said.
"It's the specifics of cabinet deliberation that has to be protected, not cabinet decisions," he added. Turk, a free-expression advocate, disagreed with the judges, arguing that the letters should have been considered tantamount to a decision, not deliberation.
The decision could also affect the ongoing RCMP investigation into the Greenbelt scandal, or any investigation into a future government, as the government can withhold documents protected by cabinet confidentiality from the police, according to Turk.
"It would allow the premier or minister to deny access to a document on the grounds that at some future point, it might come before cabinet," he said.
For instance, the federal Liberal government cited cabinet confidence when it blocked documents and witness interviews from the RCMP in the investigation into the SNC Lavlin affair.
However, Ford has promised the RCMP will have “full access” to documents in the Greenbelt investigation — including his personal phone records.
The opposition parties pounced on the decision.
"Mr. Ford and the Conservatives feel that they do not owe the people of Ontario any transparency or accountability for their sketchy backroom decisions, even as they remain under RCMP criminal investigation," NDP Leader Marit Stiles said, referring to the ongoing criminal investigation into the Greenbelt scandal.
"The public deserves to know what the premier instructs his ministers to do; if this government were truly ‘for the people,’ this would include being for the people’s right to know what their government is doing. Ontario citizens should be able to trust that their premier will act in the public’s best interest," said Liberal Leader Bonnie Crombie.
Both Stiles and Crombie promised to release their mandate letters if elected.
"This is a disappointing ruling that sets a poor precedent for democracy in Ontario," said Green Leader Mike Schreiner. "Through multiple scandals and investigations, we have seen the lengths this government will go to in order to conceal its bad behaviour from the people of Ontario."