Supreme Court rules Premier Doug Ford’s mandate letters to be kept secret
The Supreme Court of Canada has ruled that the Ontario government does not have to disclose Premier Doug Ford’s mandate letters in a unanimous decision issued Friday.
“The Letters are revealing of the substance of Cabinet deliberations, both on their face and when compared against what government actually does,” wrote Justice Andromache Karakatsanis in the majority decision.
Mandate letters traditionally lay out the marching orders a premier has for each of their ministers after taking office — and have been routinely released by governments across the country.
But the Ford government went to great lengths to keep the premier’s 2018 letters secret by appealing court orders to disclose the records all the way up to Canada’s top court, which heard the province’s appeal last April. Despite those efforts, a copy of all 23 of Ford’s 2018 mandate letters was reportedly leaked to Global News in September of last year.
CBC Toronto originally filed a freedom of information request for the records in July 2018. The government denied access in full, arguing the letters were exempt from disclosure as cabinet records.
Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) states that any records that “would reveal the substance of deliberations of the executive council or its committee” are exempt from public disclosure under what’s commonly referred to as the cabinet record exemption.
The interpretation of that exemption was at the heart of the mandate letter case.
The privacy commissioner’s initial decision, and all of the court rulings prior to the latest from the Supreme Court, have supported a narrower interpretation of the boundaries of cabinet secrecy, which differentiates between deliberations and their results.
Supreme court squashes initial decision
But the Supreme Court disagreed. In her majority decision, Justice Karakatsanis found former IPC Commissioner Brian Beamish’s initial decision, which determined the mandate letters were not cabinet records, both unreasonable and wrong.
“Deliberations’ understood purposively can include outcomes or decisions of Cabinet’s deliberative process, topics of deliberation, and priorities identified by the Premier, even if they do not ultimately result in government action,” wrote Karakatsanis.
“Decision makers should always be attentive to what even generally phrased records could reveal about those deliberations to a sophisticated reader when placed in the broader context. The identification and discussion of policy priorities in communications among Cabinet members are more likely to reveal the substance of deliberations, especially when considered alongside other available information, including what Cabinet chooses to do.”
As a result, Karakatsanis found that the letters themselves along with the representations of Cabinet Office were “clearly sufficient” to find that the records fell within the scope of the Cabinet Record exemption in FIPPA.
Justice Suzanne Côté wrote a concurrent decision for the case, which agreed that the mandate letters are exempt from disclosure but disagreed about the standard of review. Where the majority found that “the same conclusion follows regardless of whether the standard of review is correctness or reasonableness,” Côté found the standard of review should just be “correctness.”
“I would consider the issue raised in this appeal — the scope of Cabinet privilege — to be a general question of law of central importance to the legal system as a whole,” wrote Côté.
“General questions of law of central importance to the legal system as a whole must be reviewed for correctness because courts, when conducting a reasonableness review, cannot provide the single determinate answer that such questions require.”
The Ontario government’s submissions in the case had argued the information and privacy commissioner took a “narrow and restrictive approach” interpreting “substance of deliberations,” which amounts to “an unwarranted incursion into the functioning of cabinet.”
The attorney generals for both Alberta and B.C. also intervened in the case to support Ontario’s broad interpretation of the cabinet record exemption.
Decision likely to impact future access to information
The Supreme Court’s decision could have a profound impact on the future of public access to information in Canada that could go far beyond access to the letters themselves.
Several organizations that intervened in the Supreme Court case argued that if the Ontario government’s broad interpretation of what should be considered a cabinet record was adopted, it would vastly expand the scope of records the government can keep secret from the public in a way that would undermine democracy and impair the public’s ability to hold the government accountable.
The Centre for Free Expression, Canadian Journalists for Free Expression, the Canadian Association of Journalists and Aboriginal Peoples Television Network (APTN) intervened in the case as a group. They argued against the government’s interpretation of the legislation, saying it would lead to “absurd results” including keeping secret “any record that revealed that a particular topic had been identified by the premier as a policy priority.”
View original article here Source