Canada’s highest court to decide whether to hear appeal to keep Doug Ford’s warrant letters secret

The Supreme Court of Canada will hand down its decision on Thursday on whether or not it will hear the Ontario government’s appeal in an attempt to keep PC Leader Doug Ford’s mandate letters secret.

Mandate letters traditionally set out the marching orders a prime minister has for each of his ministers after taking office – and have been regularly issued by governments across the country.

Ford’s government, however, has been fighting to keep its mandate letters from the public for nearly four years. CBC News filed a freedom of information request for the records in July 2018, shortly after Ford took office. The government refused access in their entirety, arguing that the letters were exempt from disclosure as Cabinet documents.

Although she was ordered to release the records by the former Information and Privacy Commissioner of Ontario in 2019 and her appeals of that decision were denied at all levels. court so far – the province used its last option to prevent disclosure in March by seeking leave to appeal to the Supreme Court of Canada.

The letters could be published today

If Canada’s highest court refuses to hear the case, the provincial government will have to release Ford’s 23 mandate letters – which together are about 150 pages – to CBC News today. But if the Supreme Court agrees to hear the appeal, there’s no chance the mandate letters will be made public before the Ontario election, now two weeks away on June 2.

This story will be updated after the Supreme Court issues its ruling at 9:45 a.m.

Delaying the release of mandate letters until after the election is the only reason James Turk, director of the Center for Free Expression at Metropolitan University of Toronto, can think of as to why the province has appealed again.

“Whatever is in the mandate letters, they don’t want it,” Turk told CBC News after the application was filed. “It’s a total waste of money – they lost on every level.”

James Turk, director of the Center for Free Expression at Metropolitan University of Toronto, says access to future records is also at stake in the warrant letter case. (Zoom)

In the government’s request, the lawyer argued that the Supreme Court should hear the case because it raises issues of public importance, such as what constitutes cabinet deliberations.

“It will also be the first time that this honorable court will examine the constitutional role of the prime minister in setting the cabinet agenda and whether the deliberations of the prime minister can reveal the substance of cabinet deliberations,” the statement said. notice of motion.

Ontario’s Freedom of Information and Protection of Privacy Act states that any document that “would reveal the substance of the deliberations of the executive council or its committee” is exempt from disclosure under what the commonly referred to as the cabinet papers exemption.

But in a 2-1 decision handed down in Januarythe Ontario Court of Appeal found that the Privacy Commissioner’s original decision and the Divisional Court’s review of it were reasonable in concluding that the mandate letters do not reveal the essential to Cabinet deliberations and must therefore be disclosed.

“The letters are the culmination of [the] deliberative process,” wrote Justice Lorne Sossin.

“While they highlight the decisions the Prime Minister ultimately made, they do not shed light on the process used to make those decisions or the alternatives discarded along the way.

“As a result, the letters do not threaten to disclose the cabinet’s deliberative process or its formulation of policies.”

Access to other in-game documents

Even if the Supreme Court decides to hear the government’s appeal and Ford’s mandate letters are protected from publication before the election, Turk argues the stakes remain high.

“[The province is] treat cabinet secrecy like this big black hole, where anything near the cabinet falls into the black hole and can be hidden from the public for years,” Turk said.

“Yes [the Supreme Court] accept the argument made by the province, then democracy in Canada will be much worse for it. »

The Supreme Court of Canada will deliver its decision on whether or not it will hear the Ontario government’s appeal to keep Doug Ford’s warrant letters secret Thursday morning. (Justin Tang/The Canadian Press)

It’s unclear how much taxpayer money and government resources have gone into denying the public access to warrant letters.

For more than two years, CBC News has been trying to get information on how much time Crown prosecutors spent on the warrant letter case. The Ministry of the Attorney General denied two access to information requests, citing solicitor-client privilege.

The latest claim, which asked for the total number of hours lawyers spent on the case from July 2018 to July 2021, is now in arbitration with the privacy commissioner.

“Keep them for us as long as possible”

Documents obtained by CBC News regarding its initial freedom of information request for the mandate letters clearly indicate that senior Ford government officials planned to keep the files out of public view from the outset.

In an email dated July 31, 2018, the Prime Minister’s Executive Director of Policy, Greg Harrington, said: “Here are the letters. As I said, the intention is to keep them to ourselves for as long as possible.

Ford issued a new set of mandate letters to its ministers in the fall of last year.

CBC News filed a freedom of information request for the records, which was denied.

The decision cited the exemption for cabinet records in the provincial privacy law, as well as three new exemptions for advice to government, solicitor-client privilege and records that “affect economic or other interests. of Ontario”.

CBC News appealed the decision to the Privacy Commissioner.