Ford government asks Canada’s highest court to keep Prime Minister’s mandate letters secret

The Ontario government has asked Canada’s highest court to weigh in on the province’s nearly four-year fight to keep Premier Doug Ford’s mandate letters to his ministers 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, is fighting to keep its mandate letters from the public shortly after the prime minister took office in June 2018.

Although she was ordered to release the records by the former Information and Privacy Commissioner of Ontario and her appeals of that decision were dismissed at all levels of justice so far, the province has decided to use its last option to prevent disclosure: the Supreme Court of Canada.

Crown attorneys from the Ministry of the Attorney General filed their application Monday for leave to appeal to the superior court the decision of the Ontario Court of Appeal reject the cause of the Ford government.

The highest court in the land can decline to hear the case. If so, the government will have to publish the mandate letters.

But if the Supreme Court agrees to hear the appeal, there is virtually no chance that the mandate letters will be made public before the Ontario election in June.

Delaying the release of the mandate letters until after the election is the only reason James Turk, director of Ryerson University’s Center for Free Speech, can think of for the decision to appeal again.

“It’s a total waste of money”

“Whatever is in the mandate letters, they don’t want it,” Turk said. “It’s the only thing I can imagine because it’s a complete waste of money – they lost on every level.”

In the government’s request, Crown prosecutors argue that the Supreme Court should hear the case because it raises issues of public importance like what constitutes Cabinet deliberations.

The Ontario government filed its application for leave to appeal the decision of Ontario’s highest court in the mandate letter case to the Supreme Court of Canada on March 28. (Adrian Wyld/Canadian Press)

“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,” reads- on in the 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.

The province used that exemption to deny access to Ford’s 23 warrant letters when CBC News first requested the documents in the summer of 2018.

But in a 2-1 decision handed down in Januarythe Ontario Court of Appeal found that the initial decision of the Privacy Commissioner and the Consideration by the Divisional Court thereofwere reasonable to conclude that the mandate letters do not reveal the substance of the cabinet’s deliberations and should 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

The Center for Free Speech, the Canadian Association of Journalists, Canadian Journalists for Free Speech, the Indigenous Peoples Television Network and News Media Canada were granted status in the case to discuss the dangers of what they see as a broadening of the Cabinet Brief’s interpretation. exemption by the province.

“[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.

James Turk, director of the Center for Free Expression at Ryerson University, says the Ontario government’s broad interpretation of the Cabinet documents exemption threatens future access to documents other than letters of mandate. (Zoom)

Regardless of whether the mandate letters are made public before the election, Turk argues that the threat of the government’s broad interpretation could block access to other documents in the future.

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

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.

Cost to deny unknown access

It is unclear how much taxpayer money and government resources have been spent preventing the public from accessing the 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 refused two access to information requests, citing solicitor-client privilege.

The latest access request, which asked for the total number of hours Crown prosecutors spent on the case from July 2018 to July 2021, is now at the appeals stage with the Privacy Commissioner. private life.

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.

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.